Professional paper
A Review of the Concept of "Diminished Responsibility" Applied at the International Tribunal for the Former Yugoslavia
Miroslav GORETA
Abstract
Diminished responsibility is assessed at the International
Criminal Tribunal for the Former Yugoslavia according to the
English legislation, which allows for the application of this
institute only in the case of indictment for the crime of
murder if it is done in the state of "abnormal mind". As this
concept differs essentially from the concept of diminished
responsibility in other European countries – including all the
states that emerged after the former Yugoslavia collapsed –
its exclusive application by the International Criminal Tribunal
for the Former Yugoslavia could considerably worsen the
quality of the performance of all the lawyers and psychiatric
experts from the continental part of Europe engaged by the
Court. In the paper the author reviews critically the concept
of diminished responsibility, which is being applied by the
ICTY, and gives suggestions for the improvement of this concept
in order to overcome the differences between the Anglo-
-Saxon and Continental models in psychiatric and legal
assessments of diminished responsibility. Thus a universally acceptable concept of diminished responsibility could be
created for application in the future International Criminal
Tribunal based on the regulations of Roman Statute. Among
the greatest deficiencies of the actual solutions the author
emphasizes: imprecise definition of the term "abnormality of
mind", giving unreasonably great significance to biological
causes of psychiatric disorders, restriction of the application
of the institute "diminished responsibility" only to murders,
too much judicial freedom in the nonacceptance of forensic
psychiatric assessments, too close ties between the degree of
diminished responsibility and specific diagnostic category,
and insufficiently neutral position of the expert engaged by
one or the other of the opposing parties. Conclusively, the
author suggests formation of an international expert
committee which would create the final draft of legal
regulations about diminished responsibility and
irresponsibility for the permanent International Criminal
Tribunal.
Keywords
Hrčak ID:
19550
URI
Publication date:
30.4.2003.
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