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Furundzija Trial Re-Opens

Tribunal Update 85: Last Week in The Hague (13-15 July 1998)

The shortest trial at the Tribunal (it only had a seven day hearing) will be extended at the beginning of September. Apart from an opportunity to further cross-examine witness "A", the defence may also be able to "call or to re-call any prosecution or defence witnesses" relevant to the case. The defence however is not satisfied with such a decision by the judges and on 9 July it asked the Trial Chamber to "strike the entire testimony of witness "A" due to the prosecution's knowing and intentional breach of its obligations under Rule 68" (disclosure of evidence).

According to the defence motion, the prosecution submitted to the defence on 29 June 1998--seven days after the close of the trial--two documents which illustrate that witness-victim "A" suffered certain psychological consequences after the multiple rape and prolonged torture to which she was subjected in May 1993. It was only then, allegedly, that the defence discovered that, after being raped and tortured (which the defence counsels do not question, only disputing that their client attended it), "A" suffered from "psychological trauma", "suppressed memory", "post-traumatic stress disorder", and was "under psychiatric care" and "taking prescription drugs".

All this, claims the defence, "casts doubt upon the reliability of witness "A's" memory". Unaware of this during the trial, Furundzija's defence counsels could not prove during their cross-examination the justifiability of such doubt and demonstrate that the victim's memory could not be trusted. According to that logic, only victims of multiple rapes and prolonged tortures who do not suffer psychological or psychiatric traumas and take medication are "reliable" as witnesses.

It did not help that, in the prosecution's response, it was pointed out that victim "A" spoke openly and at length about all her physical ailments and psychological traumas, about insomnia, fears, and the tranquillisers she was forced to take, in the statement the prosecution gave to the ICTY investigators in 1995, and which was handed to the defence on 12 January 1998.

From this statement, the prosecution deems, the defence could have made the same conclusions, and could have asked witness "A" under cross-examination whether she was on medication, and whether she was, or is, receiving any psychological or psychiatric treatment. In spite of that, the judges concluded that the prosecution's "failure to disclose [has] prejudiced the accused's rights", and accordingly ordered the re-opening of the trial.

In all likelihood, the fact that the prosecutors in the Furundzija case--the UK's Michael Blaxill and America's Patricia Viseur-Sellers (USA)--have a history of a "consistent pattern of non-compliance with the orders of the Trial Chamber" contributed to the court's decision.

Immediately before the beginning of the trial, Judges Florence Mumba (Presiding), Antonio Cassese, and Richard May, in an unprecedented move, publicly announced "The Trial Chamber's formal complaint to the prosecutor concerning the conduct of the prosecution", expressing their "dismay" and "grave concern" with numerous "failures" of the prosecution in the Furundzija case.

Chief prosecutor Louise Arbour, for her part, expressed her "grave concern over the conclusion reached by the Trial Chamber" and announced that she would conduct a review of all relevant documents, in order to establish whether the prosecutors in the Furudzija case abided by the requested "highest standards of professionalism and of professional ethics". The results of her review will be announced after the trial ends and Furundzija's sentence is agreed, an event which has now been postponed for at least two months.

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