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
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
ORDER ON ESAD LANDZOS 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 OSullivan, 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 Landzos 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
Dated this eighteenth day of June 1998
At The Hague,
[Seal of the Tribunal]