Press Release . Communiqué de presse
(Exclusively for the use of the media. Not an official document)
CHAMBRE DE 1ERE INSTANCE
The Hague, 14 July 1998
TRIAL WILL RE-OPEN IN EARLY SEPTEMBER
On Tuesday 14 July 1998, Trial Chamber II, consisting of Judge Florence MUMBA (presiding), Judge Antonio CASSESE and Judge Richard MAY, ordered the re-opening of the trial of accused Anto FURUNDZIJA.
Pending definite scheduling, the Furundzija trial is likely to re-open in September.
The trial began on 8 June 1998 and was completed on 22 June after 7 hearing days. However, while the Judges were considering their Judgement, the Defence filed a Motion on 9 July "to strike the testimony of Witness A due to prosecutorial misconduct or, in the event of a conviction, for a new trial". The Prosecutor replied on 13 July. A Motion hearing was held on Tuesday 14
July, during which the Trial Chamber ordered the re-opening of the proceedings.
THE TRIAL CHAMBER’S RULING
After consideration of the written and oral submissions by the Parties (see below), the Judges "felt that the Prosecution did not fulfil their mandate on disclosure" and ruled from the Bench that "their failure to disclose" to the Defence before the commencement of the trial two documents pertaining to the psychological and/or psychiatric state of health of Witness A
(the victim of the alleged offences in the indictment against the accused) "prejudiced the accused’s rights".
The Trial Chamber accordingly ordered the re-opening of the proceedings in order for the Defence "to further cross-examine Witness A" and to "call or re-call any Prosecution or Defence witnesses" relevant to the case.
THE DEFENCE’S MOTION AND THE PROSECUTOR’S REPLY
The Defence Motion of 9 July:
The Defendant asserted that "[t]he Prosecution in this case knowingly and intentionally withheld information from the Defence establishing that Witness A
- had suffered ‘psychological trauma’ from the time of her captivity on 15 May 1993 at least to the date of the Certificate (11 July 1995);
- was under psychiatric care for at least a year and half, from late 1993 until mid-1995;
- at least during the time she was under psychiatric care, suffered from suppressed memory;
- at least during the time she was under psychiatric care, was taking prescription drugs; and
- at least during the time she was under psychiatric care, was suffering from post-traumatic stress disorder.
According to the Defence, "the Prosecution’s withholding of this information was a flagrant violation of Rule 68 that requires this Trial Chamber’s immediate attention".
Consequently, the Defendant 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 […]".
Rule 68 reads as follows: "The Prosecutor shall, as soon as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence".
The Prosecutor’s Reply of 13 July:
In its Response, the Prosecution stated that "on 29 June 1998, it provided the Defence with a redacted certificate and statement from a psychologist at the Medica Women’s Therapy Centre in Zenica concerning Witness A and counseling she received at the Centre".
According to the Prosecution, these documents "do not relate to or describe any type of clinical psychiatric treatment or any form of psychiatric care" and the Defence was orally notified before the beginning of the trial that "Witness A had visited the Medica center in Zenica".
Contending that "the Defence had a full and fair opportunity for cross-examination as to Witness A’s mental condition, mental stability and ability to recollect events accurately", the Prosecution submitted that the documents referred to by the Defence "add nothing to the proceedings, are not admissible, and were not required to be produced under Rule 68. Alternatively,
even if the material technically falls within the purview of Rule 68, the Defence had adequate notice and opportunity to pursue all of the issues raised by the material".
The Prosecutor then requested the Trial Chamber "to deny the Defence Motion to Strike Witness A’s Testimony and to proceed with issuing its judgment.
Alternatively, if the Trial Chamber determines that the Defence has been deprived of a fair opportunity to explore the credibility, Witness A should be recalled. There is no cause for striking Witness A’s testimony and such a motion should be denied".