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Furundzija Trial: Concludes After Only Eight Working Days

Tribunal Update 82: Last Week in The Hague (22-27 June 1998)

This is how Prosecutor Patricia Viseur-Sell began her closing statement last week, trying to dispute the main argument of Anto Furundzija's defense that the memory of witness "A," the victim of the sexual assault committed against her five years ago - allegedly in the presence of the accused - cannot be trusted.

The defense tried to support this argument with the assistance of its expert witness, Elisabeth Loftus, a Washington University psychology professor who specializes in human memory and who has conducted several studies on the distortion of eyewitnesses' memory.

Professor Loftus described her experiments with simulated crimes, in which she was trying to establish what happens with memory between the crime and the time of testimony, and explained mechanisms by which memory is distorted with the passage of time, as well as by post-event information (such as media coverage).

The whole exercise prompted a reaction from Judge Richard May, who reminded the defense that Furundzija is not being tried before a jury but before professional judges. "Do we need an expert to establish that memory declines?" the judge asked.

As it was mentioned in previous issues of "Tribunal Update," the greatest part of the Furundzija trial has been conducted in closed sessions, which has deprived the public of hearing the testimonies of the two key prosecution witnesses: "A" (the victim) and "D" (the eyewitness).

According to the prosecutor's closing statement, the victim was consistent before the court in presenting her "horrible story," which, in all its important details, "did not change during the years." Things went differently with "D", however. The prosecutor herself described "D" as a "somehow reluctant witness, attracted to both sides: the prosecution and the defense."

"D" is a Bosnian Croat, just like the accused Furundzija, and his appearance in the role of a prosecution witness is one of rare exceptions to the rule whereby members of other ethnicities appear as prosecution witnesses in a trial of a member of a given ethnicity (e.g. Bosniaks or Croats against Serbs, and vice versa), while the ethnic brethren of the accused testify in favor of the defense.

Suspected of helping Bosniaks, "D," a member of HVO's (Bosnian Croat) military police, was arrested in August 1993 and interrogated and maltreated for three days at the headquarters of the "Jokers," a HVO special-forces unit. During one of those interrogations, "D" was brought into the same room as "A". He was not only beaten on that occasion but also forced to watch the raping of "A".

The prosecutor and "A" claim that the interrogation was conducted by Furundzija, who figured as one of Jokers' commanders at the time. "D", however, has told the court that he had only seen the accused in front of the door leading to the room in which "A"'s ordeal was taking place.

The prosecutor attributed the discrepancy between the statements of her two key witnesses to the fact that "D", as a Bosnian Croat, "may have been cautious about saying things against his own kind," which could be detected from "his physical reactions during his testimony." But, in spite of that, "D" confirmed that he was an unwilling eyewitness to the rape of "A" and that he had seen the accused in front of the room where torture and rape was going on.

According to the prosecutor, Furundzija was "in control of an entire scene ... even if [at one point] he went outside to take a cigarette." Referring to the ruling in the case of Dusko Tadic, the prosecutor maintained that the Furundzija case also concerned not "ordinary" but "significant presence," which had an "encouraging effect" on the direct perpetrators of the crime, because it represented "a silent signal - or maybe not so silent - which everybody understood."

This case, Prosecutor Viseur-Sellers concluded, "is about simple justice, [it is] not that complicated as other [cases]." By allowing rape during the interrogation he was conducting and by not having done anything to stop such violence, the prosecutor claimed, Furundzija committed crimes of torture; outrage upon personal dignity; and aided and abetted rape.

In the part of the closing statement dedicated to sentencing evidence, another member of the prosecution team, Mike Blaxill, qualified the manner in which the crime was committed as an aggravating circumstance and suggested that the prosecution could not find any mitigating circumstances in Furundzija's case.

As the court is obliged to take into account the sentencing practice in the former Yugoslavia while meting out a sentence, Blaxill referred to the minimum punishment envisaged by laws in ex-Yugoslav states for similar cases (5 years imprisonment) as "totally not applicable here," pointing out that the prosecution believed that the "maximum [20 years] is a potential option for this court."

The defense, headed by Luka Misetic, a U.S. lawyer of Croatian origin, held on to its main argument that the prosecutor's entire case rested on only one witness - the victim - and on her ability to recollect the events. The defense did not dispute that the victim had gone through what is described in the indictment and what she herself described before the court.

On the contrary, Misetic said, "if the accused 'B' [direct executioner of the sexual violence against "A", who has been identified before the court as Miroslav "Cicko" Bralo] were sitting behind me ... you would have had the testimony of 'A', corroborating evidence by 'D', and you would have left this courtroom convinced of ["B"'s] guilt."

However, according to the defense lawyers, the trial has shown that there is reasonable doubt that Furundzija was present during those events, which the defense ascribes to "personal rage of the accused "B", who went on a rampage." Because of that, Misetic concluded, "this case cries out for an acquittal."

Trial Chamber II, under the presidency of Zambian Judge Florence Mumba in this case, concluded the trial of Anto Furundzija after only eight working days. It, however, did not announce a date for its verdict.

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