IN THE TRIAL CHAMBER

Before: Judge Adolphus G. Karibi-Whyte, Presiding

Judge Elizabeth Odio Benito

Judge Saad Saood Jan

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Order of: 18 June 1998

PROSECUTOR

v.

ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"

_________________________________________________________

ORDER ON ESAD LANDZO’S SUBMISSION REGARDING
DIMINISHED OR LACK OF MENTAL CAPACITY

_________________________________________________________

The Office of the Prosecutor:

Mr. Grant Niemann

Ms. Teresa McHenry

Mr. Giuliano Turone

Counsel for the Accused:

Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene O’Sullivan, for Zejnil Delalic

Mr. Zeljko Olujic, Mr. Tomislav Kuzmanovic, for Zdravko Mucic

Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic

Ms. Cynthia McMurrey, Ms. Nancy Boler, for Esad Landzo

 

THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal");

BEING SEISED of "Esad Landzo’s submissions regarding diminished or lack of mental capacity" filed on 8 June 1998 (Official Record at Registry Page ("RP") D6542-D6555) which, inter alia, states:

"The issues that need to be resolved before presentation of the defence case in chief are:

1. What definition of diminished or lack of mental capacity should be applied?

2. Who has the burden of proving or disproving the special defence of diminished or lack of mental capacity?

3. What standard of proof must be met by the party carrying the burden of proof?";

CONSIDERING the oral submissions of Counsel for Esad Landzo on 9 June 1998;

NOTING that Sub-rule 87(A) of the Rules of Procedure and Evidence of the International Tribunal ("Rules") provides, inter alia, that "A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proven beyond reasonable doubt.";

CONSIDERING that the burden of proving guilt beyond reasonable doubt lies on the Office of the Prosecutor;

NOTING that, pursuant to Sub-rule 67(A)(ii)(a), the special defence of diminished or lack of mental responsibility is a plea offered by the Defence;

FOR THE FOREGOING REASONS, PURSUANT TO RULES 54 and 67;

HEREBY DECIDES that the Defence offering a special defence of diminished or lack of mental responsibility carries the burden of proving this defence on the balance of probabilities, and;

RESERVES its decision on the definition of diminished or lack of mental capacity to final judgement.

 

Done in both English and French, the English version being authoritative.

_____________________________

Adolphus G. Karibi-Whyte

Presiding Judge

Dated this eighteenth day of June 1998

At The Hague,

The Netherlands.

                                                                [Seal of the Tribunal]