Furundzija Trial: Can Victims Be Trusted?

Sunday, 15 November, 1998

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IWPR ICTY

All this follows the line of argument presented by Furundzija's defence, which alleges that in future the testimony not only of victims who were traumatised by their own ordeals, but even witnesses - who may have been traumatised by events they witnessed - should be disallowed.

Trauma and stress, Furundzija's defence alleges, can "cause brain damage ," distort memories, and render people "inconsistent" and open to suggestions.. It can further influence witness statements in such way that they become less and less accurate in time. Victims and witnesses who have sought expert therapeutic help to overcome consequences of their trauma and stress are deemed to be particularly unreliable by the Defence.

It is not the therapeutic counsellor's duty to establish truth about the traumatic event, but to help victims and witnesses construct a story that would give meaning to the event experienced or witnessed by them. Hence, Furundzija defence alleges, victims and witnesses who have undergone such therapy can not be relied upon in court proceedings.

Luka Misetic, the American lawyer who is Furundzija's Defence counsel, put forward the above argument with the assistance of two expert-witnesses: US military psychologist Dr. Younggren and a Yale University professor, Charles Morgan III. The aim of Furundzija's Defence strategy last week, was to persuade the Tribunal that witness statement of Witness "A" cannot be relied upon for two reasons: she allegedly manifests symptoms of Post-Traumatic Stress Disorder (PTSD) as a consequence of suffering multiple rapes and an extended period of torture (which the Defence does not question), and has received psychological counselling to assist her in coping with her experiences and problems of insomnia and nightmares.

The essential line of defence was that Witness "A" was not credible and had an imperfect recollection of the events and the identity of its participants. As "A" was the key witness for the Prosecution, without her testimony it would be impossible for the Trial Chamber to convict Furundzija.

Here is a brief reminder of the facts in the Furundzija case. According to the indictment, Anto Furundzija was the local commander of the HVO (Croatian Defence Council) special police unit (the "Jokers") in the Lasva River Valley, Central Bosnia. During the Croat-Bosniak war, the "Jokers" detained a woman, Witness "A" in May 1993, in a place referred to as "the bungalow" near Vitez where she was interrogated by Furundzija.

During the interrogation one of Furundzija's subordinates - Miroslav Bralo, called "Cicko" - rubbed his knife along the inner thigh and stomach of witness "A". She was thereafter raped and tortured by "Cicko" in room and then again, later in the pantry. Furundzija was arrested in December 1997 in Vitez by SFOR troops , on the basis of a sealed indictment which charged him - as a commander of the unit - for not preventing or punishing a crime committed in his presence by his subordinates.

His trial began in June this year, and lasted only seven working days. A week after the trial ended, the Prosecution presented the Defence with copies of two documents which revealled that Witness "A" sought and obtained expert psychological assistance from the Medica Women's Therapy Centre in Zenica. The Defence brought a motion to the Trial Chamber seeking an order striking Witness "A"'s testimony on the grounds that the defence had been prejudiced by this non-disclosure. On 14 July, a day before the judgment was to be pronounced, a hearing on this Defence motion was held. The Trial Chamber refused to grant the defence request to strike the testimony of Witness "A", but did order a re-opening of the trial, so that all of the Prosecution's witnesses, including Witness "A", be available for cross-examination.

The Chamber, also, ordered that the Prosecutor "disclose any documents in its possession relating to the material and relevant to the issue of any medical, psychological or psychiatric treatment or counselling received by Witness 'A' after May 1993."

The Furundzija trial re-opened last week with the cross-examination by the Defence, of Dr. Muhamed Mujezinovic, a doctor from Vitez who appeared as a Prosecution witness in the first part of the trial. Dr. Mujezinovic repeated that in the Summer of 1993 Witness "A" - whom he had known earlier - approached him for help, and that he was shocked by her condition: She was frightened, exhausted, suicidal and completely changed.

Defence counsel Misetic tried to lead Dr. Mujezinovic to diagnose Post raumatic Stress Disorder, but he refused: "It was clear that she was in trouble and that she needed expert help," he said. "But I am not an expert, just a general practitioner." So he had immediately referred her to Dr. Kadrija Sabic from Medica Centre, a doctor who specialised in treating victims of rape and sexual violence.

After Dr. Mujezinovic, The Defence called Witness "A". Her two-hour cross-examination was held in camera . In the subsequent part of the trial, the Defence focused on one part of her statement: Counsel Misetic reminded the Trial Chamber that "A" earlier stated that she never suffered from nightmares, guilty feelings, sleeplessness and other symptoms mentioned by Dr. Mujezinovic. He asked one of defence expert-witnesses whether that was typical for patients suffering from PTSD. The expert, Professor Morgan, confirmed that "inconsistency" of such patients is "typical", leading them to "negate their earlier statements." Defence counsel Misetic did not, however, contribute to the credibility of his own expert-witness when, towards the end of the witness hearings, he called upon Professor Morgan again, and practically asked him to revoke part of his earlier statement.

During the first part of the witness hearings, last Tuesday, Professor Morgan warned that the current research on inconsistency and non-reliability of the traumatised witnesses "cannot be automatically applied in the courtroom setting." When he was called to the witness box again two days later, the same expert asserted that witness statements of PTSD sufferers should not be deemed credible, and that in such cases corroborating evidence must always be sought.

The Defence further distinguished itself by disclosing the identity of "A" by mentioning in the course of a public hearing her son, who is a well-known personality in a certain Bosnian town. Mr Misetic took care to mention his profession as well as the name of the town itself. Upon Prosecution's objection, this part of the hearing was erased from the transcript as well as from audio and video recordings of the trial, which are normally broadcast with a thirty-minute delay because of just such accidental or intentional disclosures. The lowest point of the hearing was reached when Counsel Misetic tried to discredit the Prosecution expert-witness, Dr. Daniel Brown from Cambridge University, asking whether a co-author with whom he had written a book "was named as co-conspirator in a 65 million dollars fraud case in the US?"

This was too much even for the very tolerant judge Florence Mumba, who cut in, demanding and demanded: "Mr. Misetic, what that has to do with this case?" Judge Richard May took a similarly dim view of the Counsel's line of questioning later on, when he announced the cross-examination of Dr Brown to be "unhelpful".

The public heard only parts of the closing arguments of both sides, following the decision by the Trial Chamber that only points of general interest should be heard in open court. The Defence meanwhile, insisted on having an open session throughout, arguing that the "public need to know what the evidence is". This motion was opposed by Prosecutor Brenda Hollis who maintained that "already too much has come out..."

Without disputing the fact that Witness "A" was traumatised by multiple rape and extended periods of torture, Prosecutor Hollis proceeded to point out that this fact provides no reason to dispute her credibility. According to Hollis, Misetic failed to demonstrate any evidence of manipulation of Witness "A" by psychotherapeutic counsellors, the media, or by the Prosecution; that her brain was damaged, or that she is suffering from side effects of drugs she had been prescribed. Witness "A", the Prosecution concluded, may be inconsistent in certain details of the events she describes, but it is up to the judges in their role as fact-finders to estimate how much and in what way does that "inconsistency relate to the facts."

In his closing argument, Misetic accused the media of wrongly interpreting the defence strategy as an intent to disqualify Witness "A" on the basis of Post-Traumatic Stress Disorder. After denying his intent to do that, Misetic repeated his earlier assertion that witness statements of PTSD sufferers "must be corroborated from independent sources." Passing a judgment on the basis of just one witness, without any corroboration, would, according to defence, mean that in this "very important trial," the Trial Chamber will accept a "low standard of proof."

On the day of the re-opening of Furundzija trial, the Trial Chamber received and accepted an amicus curiae (friends of the court) brief, presented by the Coalition for Women's Human Rights in Conflict Situations and the Notre Dame Centre for Civil and Human Rights. The brief analyses and disputes the decision of the Chamber to re-open the Furundzija trial, and seeks the revision of that decision. But since their brief arrived late, arguments against the re-opening of the trial were judged to be no longer relevant. The Trial Chamber did however promise that "any relevant parts of their submissions will be duly considered....for purposes of judgement."

The question of the credibility of witnesses in Furundzija case, the brief points out, opens some "crucial issues... which have far-reaching and long lasting consequences." It is the NGOs wish, therefore, to "attempt to provide guidance to the Trial Chamber in balancing important, but competing rights of defendants and victims or witnesses, with special emphasis placed on protecting privacy rights of victims and witnesses of sexual violence."

In the 50 pages of their submission, the groups set out supportive evidence for six different arguments as to why they think that the Trial Chamber made a mistake in re-opening the trial. The arguments are summarised here as follows:

1. There is no absolute duty on the part of the Prosecution to disclose that a victim or witness has received medical, psychological or psychiatric counselling or treatment.

2. Traumatic events are commonplace and, irrespective of a diagnosis of post-traumatic stress disorder or rape trauma syndrome, do not inherently undermine a victim or witnesses' ability to testify accurately or truthfully.

3. The Trial Chamber should recognise a privilege concerning rape counselling records in accordance with Rule 75 of the Rules of Procedure and Evidence of the Tribunal, authorising appropriate measures for the privacy and protection of victims and witnesses.

4. A privilege concerning rape counselling records may only be broken where the Defence satisfies the standard threshold showing set out in the ICTY of a "prima facie case which would make probable the exculpatory nature of the materials sought."

5. The Trail Chamber should, in accordance with powers under the Statute and Rules of Procedure and Evidence, review in camera the materials to determine whether certain evidence should be disclosed to defence counsel.

6. The Trial Chamber should provide to the defence only those parts of the records that the Trial Chamber deems specifically relevant; cross-examination should be strictly limited to information determined to be relevant. Additionally, the Defence counsel's use of the records should be carefully regulated.

Applying those arguments to Furundzija case, the friends conclude: "To allow the Defence the opportunity to undermine the testimony of a rape survivor's memory simply because she was traumatized by the sexual violence, and to access her private records which she incurred because she sought help as a result of the trauma, without first even establishing a sufficient basis for or satisfying a threshold showing the need and prejudice, is inequitable... If this is the standard accepted, half the world and virtually all war survivors will be deemed to have inherently flawed memories, opening the door to gross invasions of privacy and unnecessarily intrusive and demeaning cross-examination (if people are even willing to testify)."

Finally, to "... allow the defence rather broad leeway to attempt to undermine the victim's credibility on the basis of controversial and nascent scientific research into the impact of adult trauma on memory, and to further order release of her private records to the defence, likewise seems....to be a reaction disproportionate to any prejudice suffered by the defence, causing unnecessary harm to the rape survivor, and setting what could potentially be a devastating precedent."