1 Tuesday, 2 March 2004

2 [Open session]

3 --- Upon commencing at 9.06 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you call

6 the case.

7 THE REGISTRAR: Case number IT-01-47-T, the Prosecutor versus

8 Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you.

10 Could we have the appearances for the Prosecution.

11 MR. WITHOPF: Good morning, Your Honours. Good morning, Counsel.

12 For the Prosecution, Daryl Mundis and Ekkehard Withopf, with Ruth Karper,

13 the case manager.

14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf.

15 And the appearances for the Defence.

16 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President.

17 Good morning, Your Honours. On behalf of General Enver Hadzihasanovic,

18 Edina Residovic, counsel; Stephane Bourgon, co-counsel; and Muriel Cauvin,

19 our legal assistant. Thank you.

20 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On

21 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and our legal

22 assistant, Mr. Mulalic.

23 JUDGE ANTONETTI: [Interpretation] Thank you.

24 The Trial Chamber would like to greet everyone present,

25 Mr. Withopf and Mr. Mundis, the representatives of the Prosecution, as

1 well as the Prosecution's new case manager.

2 The Trial Chamber would also like to greet the Defence teams and

3 the accused, as well as everyone else present in the courtroom, in

4 particular the court reporter, whose work enables us to follow everything

5 that is being said in realtime.

6 The Trial Chamber has to rule on the admission into evidence of

7 two documents. One is in English and the other document is -- one is in

8 B/C/S and the other is in English. It's the translation that was written

9 by Senad Dautovic on the 12th of October, 1993. The Defence produced this

10 document in the course of its cross-examination, and the Prosecution has

11 objected to admitting this document into evidence.

12 The Trial Chamber would like to remind everyone that in principle

13 the Trial Chamber doesn't admit into evidence a document that has been

14 contested by the witness. In this particular case, the witness in

15 question was not familiar with this document and pointed out that at the

16 time that the document was drafted he was in detention.

17 Nevertheless, in the interests of justice, one may admit a

18 document into evidence, and in this case the Trial Chamber has noted that

19 this document related to the grammar school, the Gimnazija, which has been

20 mentioned both in the indictment and in the Prosecution's pre-trial brief,

21 this document has been signed by Mr. Senad Dautovic, whose name is also

22 contained in the pre-trial brief. This document also relates to a body

23 described as the civilian police, the MUP. And in addition, this document

24 appears in the Prosecution's footnotes in its pre-trial brief. For these

25 reasons, the document will be admitted into evidence and DH53, DH53/E for

1 the English translation will be the exhibit numbers given to these

2 documents. So the exhibit numbers are DH53 and DH53/E. That is our

3 ruling.

4 We are going to now continue and hear a new witness. I don't

5 think that any protective measures have been requested as of yet.

6 Could the usher go and call the witness into the courtroom.

7 [The witness entered court]

8 JUDGE ANTONETTI: [Interpretation] Good day, Witness. Can you

9 hear what I am saying? Can you hear the interpretation of what I am

10 saying?

11 THE WITNESS: [Interpretation] Yes, I can.

12 JUDGE ANTONETTI: [Interpretation] Thank you.

13 As you have been called to appear here as a witness for the

14 Prosecution, you have to make a solemn declaration, but it is also

15 necessary for the Trial Chamber to be able to identify the witness. Could

16 you tell us your first and last name.

17 THE WITNESS: [Interpretation] My name is Sulejman Kapetanovic.

18 JUDGE ANTONETTI: [Interpretation] Thank you. What is your date

19 of birth and where were you born?

20 THE WITNESS: [Interpretation] I was born on the 6th of January,

21 1936 in Vares, in Bosnia and Herzegovina.

22 JUDGE ANTONETTI: [Interpretation] What is your current address?

23 THE WITNESS: [Interpretation] Ajdancik [phoen] number 1 in

24 Zenica.

25 JUDGE ANTONETTI: [Interpretation] Very well. What is your

1 current position?

2 THE WITNESS: [Interpretation] I am currently the deputy cantonal

3 prosecutor in Zenica.

4 JUDGE ANTONETTI: [Interpretation] In 1993, over ten years ago,

5 what was your position?

6 THE WITNESS: [Interpretation] From the 20th of May, 1993 until

7 June 1997, I was the high public prosecutor for the territory of the

8 Zenica-Doboj canton and the Central Bosnia canton.

9 JUDGE ANTONETTI: [Interpretation] Very well. Have you already

10 testified before a national or international court, or is this the first

11 time?

12 THE WITNESS: [Interpretation] This is the first time, absolutely.

13 JUDGE ANTONETTI: [Interpretation] As you will now be testifying,

14 it is necessary to first make the solemn declaration. Could you read out

15 the text of the solemn declaration that the usher will show you in your

16 own language.

17 THE WITNESS: [Interpretation] I solemnly declare that I will

18 speak the truth, the whole truth, and nothing but the truth.

19 WITNESS: SULEJMAN KAPETANOVIC

20 [Witness answered through interpreter]

21 JUDGE ANTONETTI: [Interpretation] Thank you. You may sit down.

22 Before a witness testifies, the Trial Chamber usually provides

23 the witness with some information. Your profession might make this

24 unnecessary. But as the proceedings are very special and differ from the

25 continental proceedings, I would like to inform you that you will have to

1 answer the questions that will be put to you by representatives of the

2 Prosecution, who are to your right in this courtroom. We call this the

3 examination-in-chief.

4 After the Prosecution has concluded its examination-in-chief, you

5 will have to answer the questions put to you by the Defence. That will be

6 their cross-examination.

7 In addition, the three Judges sitting before you may at any time

8 ask you some questions in order to clarify some of your answers or if they

9 feel it is necessary. So these proceedings are very different from the

10 ones you are familiar with in your country, but there are certain aspects

11 that are nevertheless similar. So you won't be thrown off balance or

12 perturbed by such a procedure.

13 To the extent that this is possible, try to provide full and

14 precise answers to the questions put to you. Since the proceedings are

15 oral, your answers will be contributing to the determination of truth, and

16 this is why the witness's answers are so important. If you don't

17 understand the sense of a question, ask the person putting the question to

18 you to rephrase it. If you feel that there are any difficulties, inform

19 the Trial Chamber of the difficulties you encounter and we will deal with

20 the matter.

21 In addition, I would like to remind you of two provisions

22 contained in the Rules of Procedure and Evidence followed by this

23 Tribunal. But I'll just remind you of this, given your position. The

24 Rules provide that if false testimony is given, a witness could be

25 prosecuted. In addition, there is a Rule that concerns answers given by a

1 witness that might incriminate the witness. Depending on the nature of

2 the question put to a witness, the witness might realise that information

3 he might provide could be used against him. The Trial Chamber could force

4 the witness to answer the question, even if the witness doesn't want to

5 answer the question, but in such a case what is said can't be used against

6 the witness in any subsequent prosecution.

7 So I just wanted to outline the Rules that govern these

8 proceedings.

9 Without wasting any more time, I'll turn to the Prosecution. I

10 think Mr. Mundis will be conducting the examination-in-chief.

11 MR. MUNDIS: Thank you, Mr. President. And let me add my morning

12 greetings to everyone in the courtroom as well.

13 Examined by Mr. Mundis:

14 Q. Mr. Kapetanovic, you've told us that at the beginning of the war

15 you were the high public prosecutor for the Zenica-Doboj canton and the

16 Central Bosnia canton. Can you tell the Trial Chamber when you graduated

17 from law school and when you did your bar exams, please.

18 A. I graduated in Sarajevo, but at the first year of law school in

19 1958-1960, I enrolled in Belgrade. I completed my first year in Belgrade,

20 and then I moved to Sarajevo, and I graduated in Sarajevo in 1964. I then

21 immediately went to serve in the JNA. This lasted for one year. Then I

22 was an intern in the Zenica municipal court. After the internship, which

23 lasted for two years, I carried on for about half a year, passed the bar

24 exam, and was then immediately appointed as a judge of the municipal court

25 in Zenica. And while performing those duties, I was mostly involved in

1 criminal affairs.

2 If I may -- should I continue or do you have any other questions?

3 Q. Let me -- before you continue, Witness, let me ask you: What

4 types of cases were heard before the Zenica municipal court, in terms of

5 the seriousness of those cases, particularly criminal cases, as you've

6 mentioned?

7 A. Throughout that period and even today, municipal courts in Bosnia

8 and Herzegovina, there were trials which dealt with offences carrying

9 penalties of over [as interpreted] ten years. All such cases were tried

10 in municipal courts. And if it was over ten years, if there was the death

11 penalty, this was -- such cases were tried at the district court, which

12 was later named the high court. And in 1997, the high court was named the

13 cantonal court.

14 Q. Witness, perhaps there's a --

15 MR. IBRISIMOVIC: [Interpretation] Mr. President.

16 JUDGE ANTONETTI: [Interpretation] Yes.

17 MR. IBRISIMOVIC: [Interpretation] Mr. President, I think there's

18 just a slight error in the transcript. When the witness mentioned the

19 penalties in the municipal courts, he said that there were penalties for

20 up to ten years. And on page 7 of the transcript, line 9, it says "over

21 ten years."

22 JUDGE ANTONETTI: [Interpretation] Yes. Could we clarify this.

23 MR. MUNDIS: Yes.

24 JUDGE ANTONETTI: [Interpretation] But we've understood that the

25 limit was ten years, but please clarify this.

1 MR. MUNDIS:

2 Q. Mr. Kapetanovic, in the English transcript of your testimony, it

3 states that "At that period and even today municipal courts in Bosnia and

4 Herzegovina, there were trials which dealt with offences carrying

5 penalties of over ten years." My question, in order to clarify, is: Do

6 municipal courts in Bosnia and Herzegovina try cases with penalties of

7 over ten years or do they prosecute cases involving penalties of up to ten

8 years?

9 A. Only up to ten years.

10 Q. Thank you. Now, before I stopped you to discuss the jurisdiction

11 of the municipal courts, you were about to continue. Was there anything

12 you wanted to add about the period when you were initially a municipal

13 judge, following law school?

14 A. I don't think it's necessary. If you think it is, ask me a

15 question and I'll answer it.

16 Q. Well, let's continue, then. How long did you remain a municipal

17 court judge in Zenica? From what period of time until what period of

18 time?

19 A. I worked for about three years at the municipal court, and then I

20 found employment in an insurance organisation, the name of which is Zoil

21 Sarajevo, the Zenica branch. I worked there for two years, and then after

22 that, on the 1st of July, 1975, I was appointed as the judge of the

23 district court in Zenica, which was later called the high court, that is

24 to say, the cantonal court. These are all high courts, but when the name

25 was changed into the high court, I really don't remember.

1 I worked until the 20th of May, 1993 in those two courts, the

2 district court - that is to say, the high court - I worked there as a

3 judge, involved in criminal affairs, involved in trials, and in the

4 capacity of president of the chamber.

5 Q. Now, you've mentioned the date of 20 May 1993. On that date,

6 what position did you hold?

7 A. On that day, as of that day, or up until that day? I apologise.

8 Q. From the 20th of May, 1993 onwards, what position did you hold?

9 A. Thank you. On the 20th of May, 1993, the government of the

10 Zenica district was also named the district for the Travnik area for the

11 prosecutor, because I couldn't take an oath in Sarajevo, because at the

12 time Sarajevo was completely blocked. So I was the acting judge. And in

13 1993, I took an oath, again in Zenica - not in Sarajevo - I can't remember

14 before whom. But from the Presidency of the Republic of Bosnia and

15 Herzegovina there was a decision according to which I would be appointed

16 as the high public prosecutor definitely and officially as of that day.

17 Q. And for how long did you remain the high public prosecutor?

18 A. I remained in that position from the 20th of March -- sorry, the

19 20th of May, 1993 until the 4th of June, 1997, when the cantons were

20 formed and the high public prosecutor's office was called the cantonal

21 public prosecutor's office. The positions were the same. The

22 jurisdiction was the same. Only the name changed, given the formation of

23 cantons at the time.

24 JUDGE ANTONETTI: [Interpretation] Witness, we need a

25 clarification here. We have carefully followed your words, and I would

1 like to be absolutely sure that before the 20th of May, 1993 you were a

2 judge, and after that, after the 20th of May, 1993, you were appointed

3 prosecutor. Am I right? You know that there is a distinction between a

4 judge and a prosecutor under the continental law. Before the 20th of May,

5 you were a judge; and after the 20th of May, you were a prosecutor. Is

6 that right? Can you please clarify. Can you please be more precise.

7 THE WITNESS: [Interpretation] It's very difficult for me to say

8 anything more precise. A judge is a judge. Up to that time, judges also

9 conducted investigations. As of the 1st of August last year, the

10 investigating judge lost that power and now it is the prosecutor that

11 carries out investigations, submits evidence before the court. But before

12 that date, I was --

13 JUDGE ANTONETTI: [Interpretation] So you're saying that before

14 the 20th of May, you were a judge. Was there a prosecutor while you were

15 judge, before the 20th of May?

16 THE WITNESS: [Interpretation] Yes, absolutely. At that time,

17 there was a higher prosecutor, a higher prosecutor. I was a judge of the

18 higher court in Zenica, and there was also a higher prosecutor's office,

19 and the higher prosecutor had its deputies.

20 JUDGE ANTONETTI: [Interpretation] And on 20 May 1993, you were

21 appointed prosecutor, so you replaced the prosecutor who was in that

22 position up to then; is that correct?

23 THE WITNESS: [Interpretation] Yes, that is correct.

24 JUDGE ANTONETTI: [Interpretation] Thank you very much. We needed

25 that clarification. It was very important to the Judges.

1 Proceed, Mr. Mundis.

2 MR. MUNDIS: Thank you, Mr. President.

3 Q. Witness, at the time you were appointed the high public

4 prosecutor from 20 May 1993 onwards, what was the territorial jurisdiction

5 that your position had responsibility for?

6 A. From 20 May 1993 onwards, we mostly dealt with the following

7 municipalities, those which are called Tesanj, Zavidovici - not Zepce,

8 because it was under the control of the Croatian Defence Council - Zenica,

9 Kakanj, followed by Gornji Vakuf - that is in the Central Bosnia

10 canton - Gornji Vakuf, Donji Vakuf, Bugojno, Novi Travnik, but not Vitez

11 because it was under the absolute control of the HVO authorities. During

12 that period of time, while I was higher prosecutor, the municipalities of

13 Olovo, Vares, and Visoko belonged to the current Sarajevo canton, but for

14 the third time, I repeat, Sarajevo was encircled. The judiciary could not

15 function in that area, so a decision had been made to put me in charge of

16 those three municipalities. Actually, they were four municipalities:

17 Visoko, Breza, Vares, and Olovo.

18 Q. Mr. Kapetanovic, which public prosecutor had responsibility for

19 Maglaj municipality?

20 A. It was the municipal prosecutor, but he was within the

21 jurisdiction of the higher prosecutor, and the municipal prosecutor had

22 jurisdiction over the area where the municipal court in Maglaj has

23 jurisdiction and could prosecute crimes for which -- which carried

24 penalties of up to ten years in prison.

25 Q. Let me ask for clarification. With respect to Maglaj

1 municipality, you said: "It was the municipal prosecutor but he was

2 within the jurisdiction of the higher prosecutor." When you say "the

3 higher prosecutor," which prosecutor or which prosecution office are you

4 referring to?

5 A. I'm referring to the higher public prosecutor in charge of the ZD

6 canton, as it is now, and it was me at the time; and also the Central

7 Bosnia canton, as it is now. At that time, they were called districts.

8 And I was in charge of those two districts, in terms of control, advisory

9 functions, and similar things, and there were other municipal prosecutors

10 and I was in charge of all of these municipal prosecutors in my districts.

11 Q. Okay. Mr. Kapetanovic, for clarification, when you refer to

12 "districts," what districts are you referring to?

13 A. The Zenica and the Travnik districts.

14 Q. Okay. Now, you've told us a little bit about the relationship

15 between the district or high public prosecutor and the municipal

16 prosecutors. Can you elaborate upon that, in terms of responsibilities

17 and supervision between the district prosecutor and the municipal

18 prosecutors?

19 A. At that time, it was the office of the higher public prosecutor;

20 although, that is not important. This person was in charge of crimes

21 carrying a penalty of up to ten years in prison. Criminal reports -- and

22 I'm talking about the civilian sector, it was only in 1992 when military

23 prosecutors' offices would be set up. So the public prosecutor was

24 independent in his work, but when it came to grave criminal acts,

25 aggravated criminal acts, where he was in doubt whether he was indeed in

1 charge and could be authorised, because it was likely that there might be

2 a penalty of over ten years, then after consultations such a case would be

3 referred to a higher public prosecutor in Zenica who would either accept

4 that case, or the public prosecutor would meet with his deputies and

5 conclude that they would continue hearing this case because this case

6 would probably carry a penalty under ten years. Then they would proceed

7 investigating that case. So this would be more or less the purview of the

8 public prosecutor.

9 Also, in such cases where a municipal prosecutor was facing a

10 dilemma whether there was a criminal act involved that was prosecuted ex

11 officio, then this municipal prosecutor would come for consultations to

12 the higher public prosecutor, who would give him oral instructions in most

13 cases, but sometimes he would also give him written instructions.

14 JUDGE ANTONETTI: [Interpretation] Again, I need some

15 clarification from you, sir. We would like to be absolutely positive that

16 when you were appointed, you were a prosecutor -- general prosecutor. You

17 had under you other prosecutors to whom you gave either oral or written

18 instructions. Can you please confirm that, that as of the 20th of May,

19 1993 you were the highest public prosecutor in the area.

20 THE WITNESS: [Interpretation] I believe that there is no doubt

21 about that. As far as the district is concerned, later on the canton, the

22 position of a prosecutor, a higher public prosecutor at the time - and now

23 the cantonal prosecutor - is the highest possible position, in terms of a

24 state body. At that time, a state body in charge of prosecuting persons

25 that may have committed crimes. As of the 1st of August last year,

1 prosecutors also carry out investigations, present evidence before

2 Trial Chambers during the main hearing.

3 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, proceed, please.

4 MR. MUNDIS: Thank you, Mr. President.

5 Q. So, Witness, at the time in 1993, from May 20th, 1993 onwards, as

6 the high public prosecutor for Zenica and Travnik, you had supervisory

7 responsibility over approximately 12 municipal prosecutors; is that right?

8 A. Correct.

9 Q. And to sum up, the municipal prosecutors could prosecute cases

10 carrying penalties up to ten years; is that right?

11 A. Yes.

12 Q. And any cases carrying penalties of greater than ten years would

13 automatically be handled by the high public prosecutor, rather than the

14 municipal prosecutors; is that right?

15 A. That is right.

16 Q. Witness, from -- or during the period from 20 May 1993 through

17 1994, what body of criminal law and criminal procedure was being applied

18 by the courts in Bosnia and Herzegovina?

19 A. Once the Republic of Bosnia and Herzegovina was recognised, the

20 Presidency started passing decrees with legal effect. Pursuant to these

21 decrees, a lot of the codes and laws that were in force in the former

22 Yugoslavia were adopted. There was also a decree, but I can't tell you

23 when it was published in the Official Gazette, by which the Criminal Code

24 of the former Republic of Yugoslavia was adopted, as well as the criminal

25 procedure code, and we continued implementing and applying those laws in

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1 our everyday practice.

2 Q. So to clarify, Witness, in 1993 and 1994 the courts in

3 Bosnia-Herzegovina were applying the Criminal Code and criminal procedural

4 code of the former Socialist Federal Republic of Yugoslavia; is that

5 right?

6 A. As far as I know, it is.

7 Q. What type of international crimes were set forth in the Criminal

8 Code of the SFRY that was applied by courts in Bosnia-Herzegovina in 1993

9 and 1994?

10 A. Pursuant to the regulations, Chapter 16, I believe it was, we

11 were in charge of the crimes of genocide and war crimes, crimes against

12 humanity, and the international law.

13 Q. What were the penalties for violation of the crimes of genocide,

14 war crimes, crimes against humanity, and the international law?

15 A. Such crimes carried a minimum of five years in prison, I believe.

16 I'm not sure. But I don't think it's important, because you can find it

17 in the law. Genocide was a minimum of 10 years or 15 years. There was

18 also a death penalty. The death penalty was abolished either in 1997 or

19 in 1998, if my memory serves me right. The death penalty could have been

20 substituted by a prison sentence of 20 years, especially if there were

21 mitigating circumstances, the death penalty could have been substituted

22 either during the first instance procedure or during the second instance

23 procedure. It could be substituted by a higher instance court.

24 Q. Mr. Kapetanovic, from the period when you were appointed high

25 public prosecutor on 20 May 1993 through 1994, which courts within the

1 districts that you were responsible for had jurisdiction over these crimes

2 set forth in Chapter 16 of the Criminal Code?

3 A. The courts responsible for such crimes were the higher prosecutor

4 and the higher court. There was a higher court and there was also a newly

5 established military court. When the military court was established - I

6 believe that it was in late 1992 - it had jurisdiction over all the crimes

7 carrying penalties under ten years and over ten years. But military

8 courts were also in charge of military personnel, all the military

9 structures, officers, cadets, reserve officers, members of the MUP, the

10 police, that is, if they were involved in war operations. Military courts

11 were also in charge of the civilians who may have committed a crime

12 targeting military facilities or objects of military importance. In this

13 specific case, I believe that it is important for me to say that the

14 military court in charge of crimes against humanity and the international

15 law was also in charge of civilians, if those civilians committed a crime

16 together with a military person.

17 They were also in charge of civilians if some other crimes were

18 committed jointly by a civilian and by a military person. On the other

19 hand, the civilian courts were only in charge of civilians. Truth be

20 told, there were a lot of dilemmas as to whether a person was a civilian

21 or a soldier. There was a state of chaos, and there were numerous cases

22 in which a civilian would steal or borrow clothes or weapons. He would

23 still be a civilian; however, he would be wearing a uniform, and in this

24 uniform he would commit a grave crime.

25 Q. Witness, let me ask you a few questions, in terms of

1 clarification from your answer. But first, let me return to the issue of

2 the civilian municipal courts. Did those courts, the civilian municipal

3 courts, in the area that you were responsible for, prosecute crimes or

4 cases under Chapter 16 of the Criminal Code during the period 1993-1994?

5 A. No, they couldn't be responsible for prosecuting this type of

6 crimes. I don't know of a single case in which a municipal court would

7 prosecute such a case. I suppose -- I hope it won't sound impertinent if

8 I say that this would not have made any sense at the time, to my mind.

9 Q. Okay. You've told us about a state of chaos, and there were

10 numerous cases in which a civilian would steal or borrow clothes or

11 weapons. What steps were taken to ensure that alleged perpetrators were

12 prosecuted in the correct court, in terms of the civilian court or the

13 military court? What steps were taken?

14 A. In such cases, I believe that there was an absolute cooperation

15 between the military and the civilian courts, and the prosecutor's office

16 as well, needless to say. It largely depended on the type of crime. If

17 we're talking about robberies, aggravated robberies, murders - and there

18 were a lot of such cases - and possibly rapes, as far as I remember all

19 the steps were taken in order to bring the perpetrator to justice.

20 During the relevant period of time, I believe that we have quite

21 a number of such cases. We're talking about civilians who either stole,

22 borrowed, or get hold -- got hold of both a uniform and weapons in some

23 other way.

24 Q. Witness, you've mentioned there was absolute cooperation between

25 the civilian and military courts. What -- again, what type of steps did

1 you take, or did this cooperation take to determine whether an alleged

2 perpetrator was a civilian or a member of the military?

3 A. I have to correct myself. There was an absolute cooperation

4 between the civilian and the military police, and needless to say there

5 was also cooperation between the civilian and military prosecutor's office

6 and the civilian and military courts.

7 And if you'll allow me, it was very often dubious whether a

8 person was a soldier or not. At the beginning, records were not kept, so

9 when we started prosecuting a certain case, we had to establish the truth

10 based on what the perpetrator himself told us.

11 Q. Now, Witness, you told us a few moments ago about the

12 establishment of district military courts. And I'll ask you more detail

13 about that in a moment. But among the persons that you told us those

14 courts had jurisdiction over were members of the MUP and the police. Can

15 you tell the Trial Chamber, if you know, why a military court would have

16 jurisdiction over the MUP and the police.

17 A. I don't know whether I said that. If I did, I'd like to deny

18 that. I'm talking only about cooperation. The times were chaotic, and

19 all I'm saying is that the military police and the civilian police

20 cooperated -- the civilian police, that is.

21 Then if you will allow me, we would then try to establish whether

22 the person had to be tried by the civilian court or the military court,

23 based on what I have just mentioned.

24 Q. Perhaps my question wasn't clear, Witness. A few moments ago you

25 told us whom -- over whom the district military courts could exercise

1 jurisdiction. Do you remember who could be brought before a district

2 military court?

3 A. Members of the army.

4 Q. Other than members of the army, who else could be brought before

5 district military courts?

6 A. Civilians too, if they had perpetrated a crime together with

7 soldiers. And this involved our cooperation. This is when we would have

8 to assess the type of crime committed. We had to assess whether something

9 had been perpetrated against armed forces, whether the soldier was the

10 main perpetrator. So it all depended on the particular case. There was

11 not just one set of rules.

12 Q. Witness, I'm going to return to this issue because in the English

13 transcript at page 16, lines 7 through 10 - and I just want to make sure

14 the transcript is correct - you said: "The military court had

15 jurisdiction all the military structures, officers, cadets, reserve

16 officers, members of the MUP, the police, that is, if they were involved

17 in war operations."

18 A. That's correct.

19 Q. This is transcript page 16, lines 7 through 10. So the military

20 courts did have jurisdiction over members of the MUP and the police when

21 involved in war operations; is that correct?

22 A. I think so. I think it's correct.

23 Q. Okay. Thank you, Witness.

24 At the time you were appointed the high public prosecutor on 20

25 May 1993, did you have a staff of other prosecutors to assist you?

1 A. At that time, I did. May I tell you how many? May I provide you

2 with their names? Would you like the names?

3 Q. Yes, please, if you can tell us how many and the names of those

4 prosecutors who worked in your office, that is, the high public

5 prosecutor's office from 20 May 1993 through 1994.

6 A. From the 20th of May, 1993 up to 1994 - that's how the question

7 was put - as I have already mentioned, I was the prosecutor. There was

8 Halilagic Suada, who is now the state court prosecutor; there was

9 Curic Semsa, who has now retired, as well as myself, given our age. There

10 was Dzemaludin Mutapcic, who at the time was the deputy of the republican

11 prosecutor. And as he couldn't go to Sarajevo because of the blockade, he

12 was sent to work with me. And this was a very diligent person, I have to

13 say that, whose work amounted to the work of two deputies.

14 Q. Witness, can you describe for the Court the conditions under

15 which your court operated or the -- the court that you appeared before

16 operated from 20 May 1993 through 1994?

17 A. Well, with regard to this period, the high prosecutor's office

18 and the court functioned, but the conditions were very difficult. We

19 didn't have paper. We didn't have ink. Often there was no electricity,

20 there was no food. Either there wasn't enough food or there wasn't any at

21 all. We were under blockade, and I wasn't able to coordinate with the

22 territory of the Travnik canton, not on a daily basis at least. So it was

23 difficult to work, but the work was done somehow. And I think that this

24 could be proved and supported by information from that period, information

25 about the number of criminal cases, about the number of trials,

1 judgements, naturally, the type of crimes perpetrated. All this can be

2 established with official information, and it would be far more reliable

3 than my answers to your questions.

4 Q. Witness, can you briefly describe for the Trial Chamber how your

5 office obtained information, how investigations were carried out, et

6 cetera, how your office functioned from the beginning of, perhaps, a

7 police complaint through the process. Can you briefly describe that for

8 the Judges, please.

9 A. At the time, and while those laws were in force, we dealt with

10 cases on the basis of criminal charges filed by the civilian police, that

11 is to say, the centre -- the security services centre, which covered a

12 number of municipalities and what is now the Zenica and Doboj canton. So

13 I'd like to repeat that this was done on the basis of criminal charges

14 filed by the civilian police. And if in the meantime the perpetrator of

15 the crime was identified by the military police and if he was identified

16 as a civilian, then naturally this case was sent to us. If you ask me

17 about the particular case in question, I couldn't tell you anything,

18 because a lot of time has passed since then. And all this information can

19 be reliably confirmed.

20 Q. Perhaps, again, my question wasn't clear, Witness. I'm simply

21 asking for a brief explanation of how the process worked once your office

22 received a police report from the centre for security. What happened?

23 How was an investigation carried out? How was the procedure? How was an

24 indictment drafted? If you can briefly just tell the Trial Chamber how

25 that functioned in the period 20 May 1993 through 1994.

1 A. So we're talking about the procedure. When we received a

2 criminal report, we would examine it. If it didn't contain sufficient

3 information, we would ask the police to check up on certain information.

4 If the criminal report was complete, then we'd make a request for an

5 investigation, to the extent that this fell within our remit. We would

6 submit a request for an investigation to the investigating judge of the

7 cantonal court in Zenica. He would carry out the investigation on the

8 basis of our request. But if he saw that the request that we had

9 submitted was valid and complete, he would then decide on carrying out an

10 investigation. And according to the criminal -- the law on criminal

11 procedure in force at the time, the criminal procedure would be

12 instigated. The investigating judge would instigate this procedure on the

13 condition that everything was in order, provided that the accused could be

14 heard and provided that access could be gained to the accused, as well as

15 to witnesses and expert witnesses. Again, it depended on the type of

16 criminal case in question.

17 And once all this had been done, on the basis of the request for

18 carrying out an investigation, and on the basis of the instructions from

19 the prosecution, then the case would be referred to the cantonal court and

20 the deputy of the public prosecutor would be responsible for it -- I'm

21 sorry, of the high public prosecutor. That's the period we are talking

22 about. An indictment would be then issued, or if no crime had been

23 committed, the proceedings would be suspended.

24 Q. Thank you, Mr. Kapetanovic. From the period 20 May 1993 through

25 1994, what type of involvement did you as the high public prosecutor have

1 in issues relating to war crimes or crimes against humanity?

2 A. I don't know whether it would be superfluous to say the following

3 in the light of your question: My main concern was to gather information

4 on genocide and war crimes. To this very day, I have worked hard on this.

5 As soon as I was appointed, three or four days later I contacted all the

6 bodies that might be involved in this area and that should be involved in

7 this area, the area of genocide and war crimes. I contacted them with

8 regard to gathering information.

9 On that occasion - and I even have everything noted down in my

10 notebook, which I haven't consulted since then - I summoned the

11 representatives of the civilian police. I also summoned the military

12 prosecutor, who was present. And at the time, there was a centre for

13 investigating war crimes. There was a state commission for gathering

14 information -- for gathering evidence on war crimes. I believe there were

15 about 20 people to whom I assigned tasks as of that date, because you

16 could only gather information. You couldn't institute proceedings. So

17 this was done in Bugojno and in Zavidovici and even in Doboj. And my

18 colleagues from Tuzla, from Mostar, and from Bihac came to see how I

19 carried out this work on one occasion, because gathering statements in

20 centres, in police stations or at the state commission, where I happened

21 to be the president, such statements aren't that reliable and legally

22 valid, but I always insisted on this being forwarded to the investigating

23 judge, who should take statements according to the regulations. And quite

24 a lot of work was done in this way. If that is your question, I have

25 nothing more to add.

1 Q. Well, let me ask -- let me ask you this, Witness: In the period

2 again from May 20th, 1993 through 1994, from whom were you gathering this

3 information with respect to war crimes?

4 A. During that period, I exclusively received information from the

5 security services centre. And naturally, in cooperation with them and the

6 prosecutor, et cetera. Because this was quite new, as far as crimes were

7 concerned, so we were trying to find our bearings, and that is perhaps

8 still the case today. But on the whole, we received criminal reports from

9 the civilian police, reports which we were able to process in the standard

10 way. And if there was evidence, a request would be submitted to the

11 investigating judge, who would conduct an investigation. After having

12 conducted the investigation, he would refer the matter to the prosecutor

13 and so on and so forth.

14 Q. Again, Witness, I'm speaking specifically about investigations

15 with respect to war crimes from 20 May 1993 through 1994. You've told us

16 that you received information from the security services centre. Is that

17 correct?

18 A. Well, it's absolutely correct. It couldn't be otherwise.

19 Q. And do you recall who the victims that were being interviewed

20 about these war crimes from 20 May 1993 through 1994? Who was the

21 security service interviewing, in terms of the victims?

22 A. There was ethnic cleansing. I remember people expelled from

23 Kozarac who arrived in the territory of the Zenica. That was in 1992.

24 And likewise, from the area of Bratunac a large number of refugees arrived

25 and I insisted on them being interviewed so that they could provide us

1 with the relevant information. And then naturally, we insisted on having

2 the investigating judge interview those witnesses. Again, I would like to

3 repeat that only such statements were reliable.

4 And another thing: During the conflict between the BH army and

5 the HVO - and this is something I found out later - Bosniak refugees

6 arrived in the territory of Zenica. Again, the investigating judge would

7 take statements from them; although, the commissions I have mentioned also

8 got involved in this to a certain extent. And at the time of these

9 conflicts - and that was in the middle of 1993, as far as I can remember,

10 perhaps in April or May - Croats either withdrew or went to Vitez, where

11 they took refuge. This is where the HVO was in power. And colleagues

12 would then take statements from Croats and gathered evidence in this

13 manner, whereas, we gathered our evidence from Bosniaks.

14 In the meantime, after the cantons had been formed, in 1996 we

15 exchanged this evidence and the indictments. We sent them to these

16 people, to the court that had jurisdiction in Travnik, and in return they

17 would send us other cases. So with regard to gathering evidence, this is

18 how we did it during the conflict. This was the only way to do it. To do

19 it in any other way would have been impossible.

20 Q. Witness, let me return to several things that you said in

21 response to my last question. You talked about people being expelled by

22 Kozarac. The people -- what was the ethnicity of the people expelled from

23 Kozarac and what was the ethnicity of the perpetrators that you were

24 investigating with respect to those refugees from Kozarac?

25 A. At the time of the conflict between the BH army and the HVO, I as

1 a civilian prosecutor didn't have -- didn't know anything about this.

2 What I said a minute ago is something that I found out about later, after

3 we had exchanged information on the cases. And I realised that Croat

4 colleagues in Vitez had taken statements from them, just as they'd taken

5 statements from refugees. At the time, I wasn't in a position to know

6 whether they were refugees or not or whether they had left of their own

7 accord. Given the fact that there was a conflict, it would be absurd to

8 think that the civilian public prosecutor had any information about this.

9 Q. Again, Witness, perhaps my question wasn't clear. Let me ask

10 you. You mentioned refugees from Kozarac, and I'd like to focus your

11 attention on the refugees from Kozarac. What was the ethnicity of the

12 refugees from Kozarac and what was the ethnicity of the alleged

13 perpetrators who may have committed crimes against the people who arrived

14 from Kozarac?

15 A. Your question was well phrased a minute ago. I didn't answer it,

16 but I did answer it partially. As far as the refugees are concerned, I

17 found out later on in 1996, on the basis of information from colleagues

18 who had gathered information in Vitez from the district military court.

19 But as to the perpetrators, I was not able to know anything about this.

20 If there were any such perpetrators, I can't know anything about this.

21 Only the military prosecutor or the military police could have knowledge

22 about this matter. But as far as the information I had as a prosecutor, I

23 had none. When a war is raging, the situation is terrible. Naturally, a

24 civilian isn't in contact with anyone, and as a result has no information.

25 Q. Witness, during the period from 1993 or May of 1993 through 1994,

1 how many cases did the high public prosecutor's office in Zenica, that is,

2 your office, investigate where it was alleged crimes were committed by

3 soldiers of the Army of Bosnia-Herzegovina against Croat civilians?

4 A. As far as war crimes are concerned, in particular with regard to

5 Bosniaks, I can only remember one case in that period of time. Zahiragic

6 [phoen] Dzemal was the name of the person concerned. And if you will

7 allow me to say this -- yes, this happened later on. It was a matter

8 dealt with my the military court. Zahiragic, as a member of the Serbian

9 army, when he was in Batkovici he looted Bosniak property in the territory

10 of Bijeljina and other villages for the benefit of his superiors. He

11 would enter houses, get hold of property that was mobile, and surrender it

12 to his superiors. And I also remember that he would take jewellery from

13 detainees and everything else they had on them. And he even maltreated

14 them mercilessly. He would beat them.

15 One of the civilians detainees from that camp was so severely

16 beaten by him that he succumbed to his injuries. Again, as far as I can

17 remember, that case was dealt with in 1993 by the judge in the district

18 military court in Zenica. I even think that he was given the death

19 penalty. As to what subsequently happened in that case, I think that the

20 case was -- was suspended -- I think it was transferred to the civilian

21 court.

22 I have just remembered - but I'm not absolutely sure, but perhaps

23 there is information about this too - from October 1994, as the

24 international community had insisted on this, crimes against humanity or

25 international law were supposed to be dealt with by civilian courts. When

1 dealing with crimes of this nature, the military courts were supposed to

2 be excluded. When this decree law was adopted, the particular case that

3 you have asked me about was referred to a civilian court, which then

4 rendered an appeals judgement. That is one case I could mention.

5 When I was interviewed in September of last year, I remembered

6 four cases quite by chance, the one I have mentioned and another three

7 cases, and I know for sure that this was something that happened in 1993

8 again. In the middle of 1993, the military court tried Vinko Vidovic, if

9 I'm not mistaken, who together with a number of HVO members entered the

10 village of Loncari in Busovaca municipality. He was armed, and started

11 perpetrating ethnic cleansing. I don't know how many civilians he took

12 prisoner. I know it was an odd number, four, five, or nine -- five,

13 seven, or nine. And he shot those people and he took some of them to a

14 prison that had been formed by the HVO in Busovaca. And I remember that

15 this criminal case was dealt with by the district military court in Zenica

16 as far as the following two cases are concerned.

17 I can remember someone called Dusko Pasalic from the area of

18 Vozuca in the Zavidovici municipality and he committed a crime in an

19 identical manner, but in the year 1992, in the same way that Vinko Vidovic

20 had committed a crime. They shot about ten Bosniaks. Among other things,

21 we established that he had personally killed one Bosniak. So with regard

22 to Dusko Pasalic, they were involved in ethnic cleansing. They expelled

23 inhabitants from the village and then looted their property. And this

24 criminal case was dealt with by a civilian court. It would appear at a

25 later date because as I have said, the decrees I have mentioned were in

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1 force -- although, he was a member of the Serbian army.

2 Can I continue, or ...?

3 Q. Actually, Witness, we were at the time when we normally take a

4 short break for technical reasons. So perhaps you can tell us about the

5 fourth case after the recess.

6 JUDGE ANTONETTI: [Interpretation] Very well. We will now have a

7 break and resume at five to 11.00.

8 --- Recess taken at 10.31 a.m.

9 --- On resuming at 10.59 a.m.

10 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, you have the floor.

11 Please proceed.

12 MR. MUNDIS: Thank you, Mr. President.

13 Q. Mr. Kapetanovic, shortly before we broke, you were about to tell

14 us about the fourth case involving war crimes that you recalled being

15 prosecuted in 1993 or 1994. Can you tell us about that fourth case,

16 if -- if you remember anything about it.

17 A. I'll tell you what I remember. I remember the name, Vinko Kajic.

18 This is the name that came up very often. This person was a member of the

19 HVO. And together with a number of other members of the HVO, they were

20 armed and they stormed into a village. There may have even been more than

21 one village involved. I'm not sure. This was in the territory of

22 Gornji Vakuf or Prozor municipality. We collected evidence from the

23 statements from the victims, mostly women, older women and younger women

24 alike. He stormed into the village. The villagers -- the male villagers

25 were not in the village, or so it seems. They were either on the front

1 line or somewhere else. He ordered those women and girls to line up. He

2 took gold and jewellery from them. He provoked them. He insulted them.

3 He was very brutal to them. Maybe it's not the place for me to say and

4 describe all those bestialities.

5 Together with other members of the HVO, he took some young women

6 away. I don't know whether they raped them or not. I can't remember at

7 the moment. He either raped them or attempted to rape them. In any case,

8 I've had hundreds of cases of women and young girls who were raped, but

9 they were reluctant to speak about that in court. They were ashamed. So

10 this may have been the case as well.

11 This crime was prosecuted by a civilian court; although, he was a

12 member of the HVO. This crime was probably only heard after the decree

13 was passed for all the cases that were supposed to be seen by military

14 courts to be referred to the civilian courts. And this is all I can say

15 about this particular case, about this particular crime.

16 Two crimes were prosecuted by the military court and two crimes

17 were prosecuted by the civilian court during the relevant period of time.

18 Q. Mr. Kapetanovic, do you recall in the case involving Vinko Kajic

19 that you just described for us what the ethnicity of the victims in that

20 case was?

21 A. They were Bosniaks, all of them.

22 Q. Mr. Kapetanovic, of the four cases that you've just told us

23 about, did any of those cases involve alleged perpetrators of the Army of

24 Bosnia-Herzegovina against Croat civilians?

25 A. At that time, I did not have any such cases. Had I had them,

1 they would have been prosecuted. In any case, I believe you can consult

2 the official records and find information on that.

3 Q. Mr. Kapetanovic, during the period from 20 May 1993 through 1994,

4 how much involvement, if any, did you have with military leaders in the

5 3rd Corps of the ABiH?

6 A. I'm not clear on the question. Are you referring to my contacts

7 with them? Is that the gist of your question? Are you referring to my

8 possible contacts with these people?

9 Q. Let's start with any possible contacts. From 20 May 1993 through

10 1994, did you have any contacts with the military leaders of the 3rd Corps

11 of the ABiH?

12 A. I've already said that I had contacts -- official contacts with

13 the military prosecutor once I was appointed. As far as the officers are

14 concerned, I did not have any contact with them whatsoever, nor was this

15 contact required. They had other things and problems on their mind, so

16 they did not have time to contact me in my capacity as a civilian

17 prosecutor. They were in a very difficult position. There was no arms,

18 no clothes. They had their own problems pertaining to their purview.

19 Q. Mr. Kapetanovic, from 20 May 1993 through 1994, how much contact,

20 if any, did you have with the military police of the 3rd Corps of the

21 ABiH?

22 A. I don't remember having had any contact, but the civilian police

23 cooperated with the military police in cases of aggravated crimes which

24 were committed jointly by civilians and by the troops. This was up to the

25 moment when the military prosecutor was in charge of prosecuting such

1 cases. I remember that they did cooperate; I didn't, however.

2 Q. Mr. Kapetanovic, from 20 May 1993 through 1994, how much contact,

3 if any, did you have with the military security service of the 3rd Corps

4 of the ABiH?

5 A. I remember this very well. It was in mid-June 1993 when I learnt

6 that from the area of Susanj, Ovnak, Janjac or that general area 17

7 corpses were brought to the pathology of the cantonal hospital in Zenica

8 and civilians. There were rumours about it, and I believe that Vlado

9 Adamovic told me about that. Vlado Adamovic was in charge of identifying

10 those bodies. I remember - and I will never be able to forget - that some

11 10 or 15 days later, at the proposal of my deputy, Suada Halilagic, who

12 had arranged a meeting, we went to see Ramiz Dugalic, the chief of

13 security of the 3rd Corps. He received us. We had a conversation with

14 him. When we learnt that civilians may have been involved in that, I must

15 admit that I was surprised because the army was absolutely loyal to the

16 late President Izetbegovic and he was the one who kept on saying, "Don't

17 touch the property or the civilians of other ethnic groups. Don't touch

18 their religious facilities." And that's why I was surprised, and that was

19 also the reason why I went to see Mr. Dugalic.

20 We had this conversation. On that occasion, he told us that he

21 was aware of the fact that the civilians had been victims of war

22 operations. They got involved in the conflict involving the BiH army. I

23 was curious to find out whether the civilians may have been involved in

24 this crime. He convinced me that they weren't, and this is how our

25 conversation ended. Later on I found out that some other bodies were

1 brought at a later date, but I wasn't interested, in my professional

2 capacity, and he assured me that if anything like that had happened, that

3 only the military prosecutor would have jurisdiction over that.

4 Q. Mr. Kapetanovic, do you recall what area or town or village these

5 17 corpses were recovered from that you have referred to?

6 A. I can repeat. It was Susanj, Ovnak, Janjac and some other

7 villages in that area in the territory where the HVO had already dug out

8 their trenches. I don't know who against. I know that there were

9 trenches in the area. I don't know where the barrels were facing. In any

10 case, it was on the border between Zenica and Vitez.

11 Q. These 17 corpses, do you know the ethnicity of these people that

12 were killed?

13 A. They were Croats to the last. According to the official

14 documents, they were all Croats.

15 Q. Do you remember whether they were civilians or members of the

16 HVO?

17 A. Both.

18 MR. IBRISIMOVIC: [Interpretation] Mr. President.

19 JUDGE ANTONETTI: [Interpretation] Yes, the Defence has the floor.

20 MR. IBRISIMOVIC: [Interpretation] Mr. President, the Defence

21 objects to these questions because this incident is not part of the

22 indictment. This incident is not covered in the indictment.

23 JUDGE ANTONETTI: [Interpretation] The Chamber turns toward the

24 Prosecution. You've heard the objection by the Defence. The Defence says

25 that the incident involving Croatian civilians and troops are not part of

1 the indictment. Can the Prosecution explain the reasons for putting these

2 questions to the witness.

3 MR. MUNDIS: Mr. President, the Prosecution would submit that

4 this line of questioning, which is virtually complete, goes to the issue

5 of notice to the accused. As the witness has testified, Ramiz Dugalic was

6 the chief of the security section of the 3rd Corps of the ABiH. One

7 would -- the Prosecution will be able to demonstrate throughout this trial

8 that that would be an issue that should have been reported -- that this

9 issue involving these 17 people should have been reported up the chain of

10 command to the accused, and it simply puts him on notice of crimes

11 committed within his area of responsibility, which the Prosecution would

12 submit would be part of the notice that the accused received that these

13 types of crimes were being committed, and should have either been

14 prevented or punished thereafter. So it goes, Mr. President, to the issue

15 of notice to the accused, with respect to criminal acts being committed

16 within his area of responsibility and of which his security chief was

17 aware.

18 JUDGE ANTONETTI: [Interpretation] Very well, then. The

19 Prosecution has explained why this question was put. According to the

20 Prosecution, it goes to the issue of notice to the accused that such

21 crimes were committed.

22 Mrs. Residovic, you want the floor?

23 MS. RESIDOVIC: [Interpretation] I would just like to object to

24 the comment by my learned friend from the Prosecution. The witness has

25 not spoken about crimes. The witness has spoken about the corpses, the 17

1 bodies which were brought to the mortuary of the hospital. This witness

2 has not provided any grounds based on which the Prosecutor might conclude

3 on any crimes having been committed.

4 JUDGE ANTONETTI: [Interpretation] The Chamber makes note of your

5 observation, and that is that the witness has never spoken about any

6 crime.

7 Is the Prosecution finished with the prosecution -- with the

8 examination-in-chief, or are there any other questions to be put to the

9 witness by you?

10 MR. MUNDIS: Mr. President, there are a couple of additional

11 lines of questions that the Prosecution would like to put to the witness.

12 JUDGE ANTONETTI: [Interpretation] Yes, you may proceed then.

13 MR. MUNDIS:

14 Q. Mr. Kapetanovic, during the period from 20 May 1993 through 1994,

15 how many cases, if any, were referred to your office by the 3rd Corps of

16 the ABiH?

17 A. I don't remember a single one. There may have been such cases.

18 I would like to refer you to the official records, because frankly

19 speaking I don't remember. I don't remember. If you had given me a task

20 to check, I would have done it and I would be able to testify about that

21 as I sit here today.

22 Q. Mr. Kapetanovic, earlier this morning, before the break, you told

23 us about the district military courts. Do you recall in the Zenica or

24 Travnik areas when the district military courts were established?

25 A. It was in autumn 1992, possibly in September. Most probably in

1 September.

2 Q. How long did the district military courts exist or when did they

3 stop functioning?

4 A. When they were established, there were two military district

5 courts, in Zenica and in Travnik. They operated up until the 30th of

6 June, 1996, when this decree came into effect. The handover was carried

7 out on the 1st of August, 1996. There are official records on the

8 handover listing all the crimes, their numbers, their perpetrators, all

9 the crimes that were handed over by the military courts to the competent

10 civilian courts.

11 Q. Where do you know -- do you know where the records from the

12 Zenica and Travnik military district courts are located today?

13 A. All these records are in the cantonal prosecutor's office in

14 Zenica or in the cantonal court in Zenica, depending on the stage of the

15 procedure.

16 Q. You've described for us earlier this morning how, on the civilian

17 side, there were both municipal courts and district courts. Did that same

18 structure apply to the district military courts? In other words, were

19 there lower-level military courts at the municipal level or were there

20 only the district military courts in Travnik and Zenica?

21 A. I've already answered that. I can only repeat. District

22 military courts were in charge of all the crimes carrying penalties under

23 ten years and over ten years, and the appeals were heard by the civilian

24 state court.

25 I would just like to add to that that Sarajevo was under

1 blockade. We established a department of the supreme court in Zenica, and

2 this was the appellate court which heard the appeals referred to it both

3 by the civilian district court and the military district court.

4 Q. During the period from May 20th, 1993 through 1994, do you recall

5 who was the military prosecutor for the Zenica district military court?

6 A. Mula-Arifovic Kemal was in that position. He is currently

7 retired.

8 Q. During the same period, that is, from May 20th, 1993 through

9 1994, do you recall who was the military prosecutor for the Travnik

10 district military court?

11 A. Behaja Krnjic.

12 Q. Earlier you told us -- or you mentioned the name Vlado Adamovic.

13 During the period 20th May 1993 through 1994, can you tell the

14 Trial Chamber who Vlado Adamovic is and what position he had in that

15 period.

16 A. Vlado Adamovic was a judge of the district military court in

17 Zenica. I know for a fact that he tried a lot of cases in his capacity as

18 a military judge. Currently Vlado Adamovic is a judge of the state court

19 of Bosnia and Herzegovina.

20 And if you will allow me to say that another judge was

21 Mladen Veseljak. The two of them were in charge of the military district

22 courts and presidents of trial chambers. They served both as

23 first-instance-court judges and appeals judges.

24 Q. Other than Vlado Adamovic, do you recall the names of any of the

25 other judges at the district military court in Zenica?

1 A. I remember Hidajet Halilagic. I remember Hilmo Ahmetovic. I

2 remember only the first names of the two, who were refugees; one was Hasan

3 and the other was Atif or Arif.

4 Q. You mentioned the name Mladen Veseljak. Which district military

5 court was he a judge of?

6 A. He was a judge of the military district court in Zenica, and

7 later he was a judge of the cantonal court, until a month or two months

8 ago.

9 Q. Do you recall the names of any of the judges at the Travnik

10 district military court?

11 A. Believe me, I can't remember any. I remember just one deputy;

12 his name was Meho Bradaric. When this military prosecutor's office was

13 disbanded, then the staff joined the civilian prosecutor's office, both

14 from Travnik and from Zenica. And that is why as of the 1st of August,

15 1996, I had as many as 16 deputies.

16 Q. Mr. Kapetanovic, during the period 20 May 1993 through 1994, do

17 you recall if your office had any involvement with cases that ultimately

18 ended up being prosecuted before this Tribunal?

19 A. Dusko Tadic, I remember. We even drafted an indictment. We

20 collected evidence. But at that time -- and I don't know how it happened

21 that you accepted that, because it was even before the Rome Accord, which

22 was passed on the 16th of February, 1996. We collected ample evidence for

23 Dario Kordic. We submitted a request for an investigation to be carried

24 out. And you probably know much better than I do, although I am a witness

25 here, how this case was referred here. There was just a request for an

1 investigation, and an investigating judge of the cantonal court in Zenica

2 issued a decision on carrying an investigation, and this was again

3 referred to the ICTY. And these are the two cases from the area that I

4 remember very well.

5 Q. Thank you, Mr. Kapetanovic.

6 MR. MUNDIS: The Prosecution has no further questions at this

7 time, Mr. President.

8 JUDGE ANTONETTI: [Interpretation] Before the Defence takes the

9 floor, I have a number of legal questions I would like to ask you in order

10 to clarify some of your answers, some of which appear quite vague.

11 Questioned by the Court:

12 JUDGE ANTONETTI: [Interpretation] As we don't have the criminal

13 procedural code from ex-Yugoslavia, as you are a legal person, your

14 answers can certainly provide us with additional information.

15 In your capacity as prosecutor, who was above you? Who was your

16 superior? Was there a Minister of Justice? Was there some body above

17 you, or was there no such body? What could you tell us about this?

18 A. At the time, there was the republican prosecutor, who was my

19 superior. But we were not actually able to establish contact. I have on

20 numerous occasions already said that it was the account of the total

21 blockade of Sarajevo. We could only communicate via fax. And there was a

22 republican prosecutor who was above me as well. And if you have no

23 objection to me saying the following, I'd like to say that the deputy of

24 the republican prosecutor, Dzemaludin Mutapcic, had been sent to work. So

25 I was able to contact someone from the republican prosecutor's office in

1 this manner.

2 JUDGE ANTONETTI: [Interpretation] We have taken note of the fact

3 that your superior was in Sarajevo but that because of the circumstances

4 you were unable to communicate with him.

5 I'd also like to know something else. You mentioned this a while

6 ago but it wasn't quite clear. When there was a complaint or when there

7 were facts that could be -- or events that could be described as criminal,

8 according to what you have said, the civilian police conducted an

9 investigation. This -- a report of the investigation was forwarded to you

10 in order to institute prosecutions. But in your capacity, could you

11 yourself conduct investigations?

12 A. The security services centre, that is to say, the police, carried

13 out the investigation, checked up on the information, and filed a criminal

14 report. The investigation at the request of the prosecution was carried

15 out by the investigative judge from the court, but they were involved in

16 the investigation. But there was a law, 145, paragraph 2 of the ZKP, the

17 Law on Criminal Procedure, which was in force at the time. According to

18 this law, if the prosecutor heard about the perpetration of a crime, it

19 was his responsibility to take the necessary measures. And because of

20 those provisions, I tried to carry out certain verifications. So if I had

21 any information, then I asked in writing that the security services

22 centre, that is, the police, check up on this matter. And after they had

23 done that, regardless of whether it was a criminal report or some sort of

24 report, the Prosecution had the right to -- and the possibility to conduct

25 an investigation, as it had certain evidence that had been gathered about

1 the matter.

2 JUDGE ANTONETTI: [Interpretation] Very well. So you have

3 provided a very precise legal answer to this question.

4 When Mr. Dugalic tells you that as far as he knows the civilian

5 or military victims -- well, apparently you didn't have any jurisdiction.

6 You didn't have the right to check up on what this person had said. Were

7 you satisfied with what he had said? In your capacity, were you not

8 supposed to check up on this?

9 A. On the basis of the decree law, I went to see Mr. Dugalic to

10 verify whether civilians had participated in the affair. He said that he

11 was aware of the fact that they were victims but that they were the

12 victims of an armed conflict. He persuaded me that this was the case.

13 But believe me, I didn't believe that the army could do something like

14 that, if the army actually did it. I was surprised. How could the army

15 do such a thing? I satisfied myself with that answer, and -- well, in any

16 event, civilians couldn't have participated in the armed conflict, so that

17 couldn't have fallen within my remit.

18 When the military court was in function, it was on the 10th of

19 June, 1993.

20 JUDGE ANTONETTI: [Interpretation] Thank you for this information.

21 In response to a question put to you by the Prosecution, you mentioned a

22 commission that had been established. Its responsibility was to carry out

23 investigations into war crimes. This is what you yourself said. Who were

24 the members of this commission? You were a member, but who were the other

25 members?

1 A. That was the state commission for gathering evidence on war

2 crimes. I was its president. Someone important from Sarajevo insisted on

3 me being the president, because they had heard that I was successful in

4 dealing with this. The others were colleagues, lawyers, who hadn't passed

5 the bar exam but they were only working in the field and tried to check up

6 on where the injured parties were located, and they would provide me with

7 information. They were investigators of a kind. They tried to determine

8 who the relevant witnesses might be. We then forwarded the information to

9 the prosecution or to the court so that reliable statements could be taken

10 from these persons. Naturally, at the time it was not -- you couldn't

11 conceive of me being both the prosecutor and the president of the state

12 commission, but the situation was such. So I allowed this to happen and I

13 had people, apart from the civilian police, who went into the field to

14 determine the location of various persons and to take brief statements

15 from them. And we would then forward these statements to the

16 investigating judge of the cantonal court in Zenica, for them to be

17 further examined.

18 JUDGE ANTONETTI: [Interpretation] Very well. As a prosecutor,

19 did you have any competence with regard to matters of personal liberty.

20 If someone had been detained or captured, did you have any competence as

21 far as personal liberty is concerned? Your procedural code, did this code

22 allow you to play a role in that matter or not?

23 A. I don't remember anything of that kind happening. It was never

24 necessary for me to intervene. If anything happened and when it happened,

25 this was following a suggestion from the Prosecution. The investigating

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1 judge should decide on carrying out an investigation and on the detention.

2 But I don't remember anything of this kind. Whether something of this

3 nature existed in the military prosecutor's office, that is to say, the

4 military court, I really don't know.

5 JUDGE ANTONETTI: [Interpretation] Very well. My last question,

6 which concerns legal affairs: At the end of the examination-in-chief, you

7 said that the military courts, when appeals were filed, you said that the

8 civilian courts were competent if there was an appeal. Is that what you

9 said?

10 A. Yes. I said that in agreement with the president of the supreme

11 court of the Republic of Bosnia and Herzegovina, we decided to form a

12 department in Zenica which would deal with appeals from the civilian high

13 court and the military court. There was no higher body that would cover

14 the military or high court in Zenica.

15 JUDGE ANTONETTI: [Interpretation] Very well. You have clarified

16 these legal issues, which might have appeared a little vague. But you

17 have provided us with all the necessary information.

18 I'll now turn to the Defence, who will commence their

19 cross-examination.

20 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President.

21 Cross-examined by Ms. Residovic:

22 Q. [Interpretation] Good day, Mr. Kapetanovic. My name is

23 Edina Residovic. I represent General Enver Hadzihasanovic.

24 Mr. Kapetanovic, we know each other from before the war; isn't

25 that correct?

1 A. Yes.

2 MS. RESIDOVIC: [Interpretation] Mr. President,

3 General Hadzihasanovic's Defence, in the course of its investigation, in

4 the archives of the military court obtained a certain number of documents,

5 so I will be asking Mr. Kapetanovic if he could also tell us something

6 about these matters. I wanted to inform the Trial Chamber of this, as I

7 will be using a number of these documents in the course of my

8 cross-examination.

9 Q. Mr. Kapetanovic, in response to a question from my learned

10 colleague from the Prosecution, you said you were a judge in the municipal

11 court in Zenica and then you were a judge in the Zenica high court up

12 until the 20th of May, 1993; is that correct?

13 A. Absolutely correct.

14 Q. On the 20th of May, 1993 - and I am only repeating what you

15 yourself have said - you were appointed as the prosecutor of the high

16 public prosecutor's office in Zenica.

17 A. Yes. I was named as the acting high public prosecutor, as I

18 couldn't take an oath, given the fact that Sarajevo was under a complete

19 blockade. So I only took an oath on the 5th of October of the same year.

20 I have already said that, and I am repeating it now.

21 Q. Thank you. Would it also be correct to say - and I think that

22 this is something you have said already - that as a judge of the municipal

23 court and then as a judge of the high court, and in particular in your

24 capacity as a prosecutor, you were involved in criminal affairs

25 exclusively; is that correct?

1 A. Yes, that's what I said, and that is absolutely correct. And I

2 worked on these affairs as the president of the chamber.

3 Q. When holding these positions, you performed your duties in

4 accordance with the law which was in force at the time; is that correct?

5 A. Yes.

6 Q. For these reasons and also because of the fact that the

7 Prosecution asked you many questions that had to do with the application

8 of law and the functioning of the judicial system, allow me to ask you

9 some questions that relate to this sphere. Would it be correct to say

10 that the high public prosecutor's office in Zenica before the war covered

11 the territory of the high court in Zenica and at the time it covered 12

12 municipalities, Zenica, Zavidovici, Bugojno, Busovaca, Donji Vakuf,

13 Gornji Vakuf, Kakanj, Kupres, Novi Travnik, Travnik, Vitez, and Zepce? Is

14 that correct?

15 A. I think that is quite correct.

16 Q. However, in the course of the war, there were occasional changes

17 in the territorial jurisdiction of the high court and the high public

18 prosecutor's office because of the situation that was as a result of the

19 war; is that correct?

20 A. Yes, it is.

21 Q. In fact, some of the municipalities that were under the

22 jurisdiction of the high public office -- high prosecutor's office were

23 under the control of the Serbian forces, so it wasn't possible to carry

24 out the legal functions of the high public prosecutor's office and the

25 high court; is that correct?

1 A. Absolutely.

2 Q. In addition, at the end of 1992, and in particular in 1993, the

3 so-called Croatian Community of Herceg-Bosna issued decisions on

4 establishing special courts and prosecutor's offices that were to be

5 active in the area of Herceg-Bosna; that is to say, in the area under the

6 control of the Croatian Defence Council. Is that correct?

7 A. Yes, that's correct. And in particular, in Vitez, Zepce,

8 Busovaca, and I can't remember the other places.

9 Q. Would it be correct to say that in a number of municipalities

10 where the population was mixed, for a certain period of time there were

11 parallel judicial organs and prosecution organs because Croatian staff

12 would withdraw from the prosecution and from the Court and form special

13 prosecutor's offices and courts, for example, in Travnik?

14 A. Yes, that's absolutely correct.

15 Q. Would it be correct to say that not a single judge and not a

16 single prosecutor who had been elected as a judge or a prosecutor in the

17 area under the control of the BH army was never dismissed from a court or

18 from a public prosecutor's office because they were members of another

19 community?

20 A. No. This was done at their own request.

21 Q. However, in Zenica and from May 1993 you were the high public

22 prosecutor, you noticed that your colleagues, judges, and prosecutors were

23 members of the various peoples. You mentioned Vlado Adamovic, who was a

24 Croat; and your colleague, Mladen Veseljak, a Serb; the president of the

25 high court was also a Croat. Is all of this correct?

1 A. Absolutely.

2 Q. Would it be correct to say that in the municipalities in which

3 the HVO took over complete control, the high public prosecutor's office in

4 Zenica and the high court in Zenica weren't able to function properly;

5 namely, in the municipalities of Busovaca, Vitez, Novi Travnik, part of

6 Gornji Vakuf, and as of mid-1993, the municipality of Zepce too? Is that

7 correct?

8 A. Yes, that's absolutely correct.

9 Q. Would it also be correct to say that the territorial jurisdiction

10 of your public prosecutor's office sometimes -- was sometimes more

11 extensive when compared to the pre-war period, covered a greater area,

12 because certain municipalities came under your jurisdiction,

13 municipalities which had previously come under the public prosecutor's

14 office in Doboj, and they were municipalities that were the jurisdiction

15 of Sarajevo, for example, Visoko, Breza, Olovo, and Vares?

16 A. Yes. I have already also mentioned Sarajevo.

17 Q. In fact, in 1993 because of the relationship with the HVO and the

18 establishment of a parallel legal system provided for by the Constitution

19 of Bosnia and Herzegovina, the territorial jurisdiction of the high public

20 prosecutor's office and the high court changed. And as I have already

21 said - and you have confirmed this - the high public prosecutor's office

22 was no longer able to function properly in the municipalities of Busovaca,

23 Vitez, Gornji Vakuf, and Zepce; is that correct?

24 A. No. This was impossible.

25 Q. However, one may say that throughout 1993, your territorial

1 competence covered Zenica, Tesanj, Maglaj, Zavidovici, Kakanj, Visoko,

2 Breza, Olovo, Vares, Travnik, Donji Vakuf, Bugojno, and part of

3 Gornji Vakuf as well.

4 A. Yes, it is. Did you mention Zavidovici as well?

5 Q. Yes, I did.

6 A. Then it's absolutely correct.

7 Q. You have already answered a question put to you by my learned

8 friends. The higher court and the higher prosecutor's office in Zenica

9 had a jurisdiction over perpetrators who committed crimes for -- which

10 carried a penalty of over ten years in prison; is that correct?

11 A. Yes.

12 Q. In the territory of your prosecutor's office, there were also

13 basic prosecutor's offices in Zenica, Kakanj, Bugojno, Zavidovici, and

14 Travnik; is that correct?

15 A. Yes, that's absolutely correct.

16 Q. These prosecutor's offices, as far as I understood - and I

17 believe that you've confirmed it in replying to my learned friend's

18 question - had territorial jurisdiction over the territories of the basic

19 courts with the same names; is that correct?

20 A. Yes, it is.

21 Q. Their jurisdiction, which arises from the law - and you have

22 confirmed it for this Trial Chamber - was to prosecute perpetrators of

23 crimes which carried penalty of up to ten years in prison; is that

24 correct?

25 A. Yes, it is.

1 Q. Is it true, Mr. Kapetanovic, that both the higher prosecutor's

2 offices and basic prosecutor's offices before the war were in charge of

3 all the perpetrators who committed crimes that pertained to their

4 jurisdiction in the area covered by these offices? Is that correct?

5 A. Yes, it is.

6 Q. You spoke about that already, but I would like to clarify certain

7 things by you confirming the following: In the second half of 1992, the

8 Presidency of Bosnia and Herzegovina, which acted as the Assembly of

9 Bosnia and Herzegovina, passed a decree with legal effect on establishing

10 district -- district prosecutor's offices and district courts; is that

11 correct?

12 A. Yes, I've already said that.

13 Q. Is it true that pursuant to these decrees the competence and the

14 authorities of public prosecutor's offices were somewhat changed with

15 regard to the perpetrators of crimes? Is it true that these decrees

16 changed the jurisdiction of prosecutor's offices with regard to the

17 prosecutors of crime, depending on whether they were military personnel or

18 civilians? Is that correct?

19 A. Yes. And this is what is set out in this decree.

20 Q. In the territory of the higher prosecutor's office of Zenica,

21 first there was a military court established and then the military

22 prosecutor's office was established, and then at the beginning of 1993 the

23 district court and the district prosecutor's office were established in

24 Travnik; is that correct?

25 A. Yes, it is quite possible.

1 Q. You've already spoke about that, but I would like you to confirm

2 once again that Bosnia and Herzegovina on the day when it was

3 internationally recognised was also attacked. It was on the 6th of April,

4 1992. Is that correct?

5 A. There's no doubt about that.

6 Q. You are also going to agree with me when I say that this was

7 probably the only country which first was involved in a war and then

8 started building its defence system and started defending itself from a

9 much more powerful enemy; is that correct?

10 A. I believe that is another indisputable fact.

11 Q. In order to avoid legal voids and allow for the functioning of

12 the state, Bosnia-Herzegovina as early as April 1992 passed a decree

13 pursuant to which it adopted a number of laws of the former Yugoslavia in

14 order for these laws to be applied as the laws of Bosnia and Herzegovina;

15 is that correct?

16 A. Yes. I've already said that, but I wasn't aware of the period

17 when this happened, but it is true.

18 Q. The Presidency also adopted the law on the criminal legal

19 procedure and the Penal Code of the former Yugoslavia; is that correct?

20 A. Yes.

21 Q. Although you and I are absolutely clear on that, Mr. Kapetanovic,

22 for the benefit of my learned friends and for the benefit of the

23 Trial Chamber, I would like to ask you: Is it true that all the judicial

24 procedure in the former Yugoslavia were regulated by the federal law? Is

25 that correct?

1 A. Yes, it is absolutely correct.

2 Q. However, the area of substantive law was split between the

3 federal state and the republics and provinces; is that correct?

4 A. Yes, it is.

5 Q. The federal law regulated the area of general crimes dealing with

6 certain principles on which the criminal law was based, the principle of

7 legality, dual procedure, the purpose of punishment and other things, and

8 certain crimes; is that correct?

9 A. Yes, it is.

10 Q. You've already said that the federal law regulated the issues,

11 that is, the crimes against humanity and the international law; however,

12 this law also regulated the issue pertaining to the crimes against the

13 state order, the armed forces, the unity of market and other crimes

14 perpetrated by the officials of the federal bodies. Is that correct?

15 A. Yes, it is.

16 Q. All the other crimes were regulated by the penal law of Bosnia

17 and Herzegovina or other states -- other republics and provinces; is that

18 correct?

19 A. Yes, it is.

20 Q. When these laws were adopted by the Presidency of Bosnia and

21 Herzegovina, the legal assumptions were created for the activities of the

22 prosecutor's offices and the courts in the territory of Bosnia and

23 Herzegovina; is that correct?

24 A. Yes, it is.

25 Q. Because of the war situation, the Presidency, acting as the

1 Assembly, on several occasions issued amendments to the laws but those

2 were never major amendments; is that correct?

3 A. Yes, it's correct.

4 Q. The only major amendment was relative to the Criminal Code of

5 Bosnia and Herzegovina in November 1992. It was at that time that many

6 crimes were assigned a lot stricter penalties. So, for example, a theft

7 became a crime within the purview of a higher prosecutor's office pursuant

8 to these amendments. Is that correct?

9 A. Yes, it is.

10 Q. On several occasions, you have said on your testimony that the

11 city of Sarajevo throughout 1992 and 1993 was under total blockade. I

12 would say that it was a typical medieval blockade. Would you agree with

13 me?

14 A. Yes, I would.

15 Q. Sarajevo was cut off from the rest of the republic. It was cut

16 off from Zenica and whoever went to Sarajevo was exposed to a possible

17 death threat. Is that correct?

18 A. Yes, it is.

19 Q. Such a situation resulted in certain problems because the

20 regulations that were passed by the Presidency of Bosnia and Herzegovina

21 were not regularly published. There was no electricity in Sarajevo or

22 other things conducive to the publication of such regulations. And it was

23 even harder for such regulations to reach other areas of Bosnia and

24 Herzegovina. Is that correct?

25 A. Yes, it is.

1 Q. With regard to that issue, the constitutional court of Bosnia and

2 Herzegovina carried out an analysis and established that it sometimes

3 takes over 70 days from the moment a decree is passed to the moment of its

4 publication. Are you aware of that fact?

5 A. Yes, I'm very well aware of that fact.

6 Q. To my learned friend's question, you spoke about the jurisdiction

7 of prosecutor's offices, and I would like to seek some clarification from

8 you on that issue. Before that, I would like to show you some excerpts

9 from the Penal Code that was in effect at the time. We have translated

10 some of the articles of this Penal Code. I would kindly ask the usher to

11 show the witness an excerpt from the Law on Criminal Procedure of the

12 Republic of Bosnia and Herzegovina.

13 MS. RESIDOVIC: [Interpretation] Can this document be marked for

14 identification. This is an excerpt from an official document. After the

15 questions that I'm going to put to the witness, if the witness is able to

16 answer the questions, I'm going to tender this document into evidence as

17 Defence exhibits.

18 Q. Mr. Kapetanovic, do you have an excerpt from the Law on Criminal

19 Procedure?

20 A. Yes.

21 Q. Can you please look at Article 45, which regulates the

22 competencies of the public prosecutor.

23 Is it true that, as you have already testified, that the basic

24 duty of public prosecutor's offices was to prosecutor perpetrators of

25 crimes and that within this jurisdiction the prosecutor was in charge

1 of -- first, in charge of ordering measures to discover the perpetrators;

2 then ordering and investigating before the competent court; thirdly, to

3 raise an indictment; and fourth, to appeal against court decisions? Am I

4 right? Have I quoted correctly the duties of the prosecutors?

5 A. According to Article 45, you have quoted everything correctly.

6 Q. With regard to the actions carried out in order to discover the

7 perpetrators of a certain crime, the prosecutor acted upon receiving a

8 criminal report or upon receiving information that a crime was committed.

9 A. Yes, you are right in both instances.

10 Q. Criminal reports were submitted to the prosecutor in a written

11 form or in an oral form; is that correct?

12 A. It was done in a written form.

13 Q. Most commonly these criminal reports were filed by the law

14 enforcement agencies, the civilian police. However, reports could have

15 been filed by other bodies or by the aggrieved persons. Is that correct?

16 A. Yes, it is correct.

17 Q. In keeping with this provision of the law, the prosecutor would

18 take measures in order to investigate the crime, even based on information

19 that the crime has been committed. And you have explained that to --

20 after the question of the Presiding Judge.

21 A. Yes, this is correct, and this is provided for by the law.

22 Q. In a situation when the information in the criminal report were

23 not -- was not complete, and especially when the perpetrator was unknown,

24 or if the prosecutor received rumours or information, then the prosecutor

25 could order the law enforcement agencies to carry out an investigation in

1 order to discover the perpetrator and complete the report; is that

2 correct?

3 A. Yes, that's correct.

4 Q. In such a situation, the prosecutor was dominus solitus over the

5 previous criminal procedure and the law enforcement agencies had to act on

6 his orders; is that correct?

7 A. Yes, and I believe this is exactly what they did.

8 Q. What I have just said was regulated by Article 153, paragraph 2

9 of the Law on Criminal Procedure, which is also in the excerpt that I have

10 provided you with; is that correct?

11 A. That is correct, yes.

12 Q. In addition to the request given by the prosecution, there were

13 also situations provided for by the law in which an investigating judge,

14 on the information that the crime has been committed, could also carry out

15 certain investigation even before a decision on the investigation was

16 made, but if such an order was issued he had to inform the prosecutor

17 immediately.

18 A. Yes, this was in urgent cases. This was the procedure that could

19 be followed.

20 Q. You have also spoken about the competencies that stemmed from the

21 decree with legal effect on military courts and military prosecutor's

22 offices. So these are the decree laws that were passed. These decree

23 laws to a certain extent amended the general competencies of the public

24 prosecutor. In order to clarify these competencies, I would like to show

25 you, Mr. Kapetanovic, the decree law on district military courts, and I

1 believe that this decree law is of some significance for this procedure.

2 MS. RESIDOVIC: [Interpretation] I have an ample number of copies

3 of this document for the Trial Chamber and the parties in the court.

4 However, Your Honours, before that, I asked for the previous document to

5 be given an identification number, so can this be done in order to avoid

6 confusing the previous document with the document that I'm just about to

7 show to the witness.

8 JUDGE ANTONETTI: [Interpretation] Yes, the Prosecution.

9 MR. MUNDIS: Mr. President, it's unclear -- it's unclear from the

10 English transcript whether my learned colleague wants the criminal

11 procedural code excerpts marked or whether she's tendering them.

12 MS. RESIDOVIC: [Interpretation] Your Honours, for the time being

13 I would only like the document to be marked for identification. But at

14 the end of my cross-examination, I will probably suggest that some of the

15 documents be admitted into evidence.

16 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, with regard to

17 the excerpt we have been provided with, we have the document in B/C/S and

18 the English translation of the document. These are articles obtained from

19 an Official Gazette, number 26. So we should conclude that this was

20 something that was in force in 1993.

21 I'm turning to the Defence. Because it's not quite clear. I see

22 that this has been extracted from a gazette. It's number 26, so it must

23 be the year 1986. It was published in 1986, and you say that it was in

24 force in 1993. Very well.

25 You appear to have the original in your hands. Could the Defence

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1 confirm this.

2 MS. RESIDOVIC: [Interpretation] Your Honours, the Assembly of the

3 SFRY adopted this law in 1977. It was published in the Official Gazette

4 of the SFRY -- no, I apologise. I was reading from something else. This

5 law was published in 1979.

6 I would just like to check when the last amendments were made.

7 It was adopted in 1976 but amended on a number of occasions.

8 Your Honours, we have the law here. Perhaps it would be appropriate to

9 provide the Trial Chamber with the law that was in force at the time and

10 the translation of the law, because the Prosecution's library has both

11 documents.

12 This law was adopted by Bosnia and Herzegovina in 1992, and it

13 was in force in 1993.

14 JUDGE ANTONETTI: [Interpretation] Very well. Yes, the

15 Prosecution.

16 MR. MUNDIS: Mr. President, if it would perhaps be of assistance

17 to my learned colleagues and to the Trial Chamber, perhaps during the next

18 break, if Ms. Residovic would like to tell us exactly which part she's

19 interested in, the Office of the Prosecutor does have both the Criminal

20 Code and the criminal procedural code in full and available in English and

21 perhaps parts of it even in French, so we can certainly assist her with

22 respect to obtaining copies of all of that material, if that would be of

23 help.

24 JUDGE ANTONETTI: [Interpretation] The Trial Chamber only wanted

25 to point out to the Defence that the excerpt, which must have been

1 photocopied from the book that you have and the document that was

2 translated, in the English version of this document we have a page which

3 summarises the code. This page, which appeared in English -- well, it

4 appears that we don't have the B/C/S equivalent of this page. The

5 document you have provided us with contains an English translation. There

6 are chapters from 1 to 34. It's in English, but apparently we don't have

7 the document in B/C/S. This is just a minor detail which I wanted to

8 point out to you. The main thing is that we have Article 45 and articles

9 from Article 45.

10 The registrar should mark this document for identification, but

11 the document will probably be given an exhibit number after the

12 cross-examination has been concluded. So a number both for the B/C/S and

13 English text, Mr. Registrar.

14 THE REGISTRAR: Your Honours, the exhibit number for the B/C/S

15 version will be DH54 marked for identification; and for the English

16 translation, DH54/E, marked for identification.

17 JUDGE ANTONETTI: [Interpretation] Thank you.

18 Please proceed.

19 MS. RESIDOVIC: [Interpretation] Thank you. I would also like to

20 thank my colleagues from the Prosecution. We will probably ask our

21 colleagues to provide us with a translation of this document, which was

22 published in 1979. We'll ask for translations in both languages to

23 facilitate the Trial Chamber's understanding of the questions that I am

24 putting to the witness. Thank you very much.

25 I have now asked the witness to be provided with the Official

1 Gazette of the BH army in which at the end of 1992, the 26th of December,

2 1992, all the instructions concerning military matters were published in

3 this document. And there is a decree law that was published about

4 district military courts in the document. It was adopted on the 13th of

5 August, 1993. And likewise, a decree law on the district military

6 prosecutor's office, dated the 13th of August, 1993. So these two

7 documents, together with these translations should be provided to the

8 Trial Chamber, the witness, and to my colleagues in the courtroom.

9 As this has already been done, I would like to ask you to mark

10 these documents for identification too. After this has been done, I will

11 ask my learned colleague a number of questions.

12 JUDGE ANTONETTI: [Interpretation] Very well. So we have a

13 document from the Republic of BH army. This document is dated 26th of

14 December, 1992 in Sarajevo. And we also have the translation of the

15 document, the English translation of the document, which follows the B/C/S

16 document. It has to do with the district military courts.

17 Mr. Registrar, could we have a number for this document.

18 THE REGISTRAR: Your Honours, the B/C/S version will get the

19 exhibit number DH55, marked for identification; and the English

20 translation gets the exhibit number DH55/E, marked for identification.

21 JUDGE ANTONETTI: [Interpretation] Thank you.

22 You may proceed.

23 MS. RESIDOVIC: [Interpretation]

24 Q. Mr. Kapetanovic, as we studied in the same school of law, with

25 regard to military rules and instructions we always examined the law,

1 isn't that correct, when we wanted to check this?

2 A. Yes.

3 Q. Could you now confirm that the basic rule concerning the

4 jurisdiction of the public prosecutor's office was that they should

5 prosecute civilians who had perpetrated crimes? Is that correct?

6 A. Yes, that's what I said, and I think it's correct.

7 Q. The main rule to be followed when prosecuting persons before the

8 district military court was that they should prosecute military persons

9 who had committed crimes; is that correct?

10 A. Yes, it is correct.

11 Q. However, the law provides for certain exceptions. So could you

12 please have a look at Article 9 of this decree. Would it be correct to

13 say that this article provides that if members of the military or

14 civilians perpetrate crimes, co-perpetrators, the regular court will

15 be -- have jurisdiction over the civilians but the same court will be able

16 to try members of the military? Is that correct?

17 A. I have already said how they proceeded. In this case, the

18 military public prosecutor's office had priority when dealing with these

19 cases if a soldier and a civilian had perpetrated a crime. It depended on

20 the nature of the crime. Sometimes we would try to reach an agreement. I

21 haven't even had a look at this decree. It was not essential for me at

22 the time that I performed my duties. I stand by what I have already said.

23 Q. The laws have provided which crimes the military court had

24 jurisdiction over, the district military court when the crime was

25 perpetrated by crimes -- by civilians [as interpreted]. This is contained

1 in Article 7 of this decree. Is that correct?

2 A. Yes, it is.

3 Q. But as you have just said, because the instructions arrived

4 belatedly and as it was often impossible to determine whether the crime

5 had been perpetrated by a civilian or a soldier or by a civilian and a

6 soldier acting together, there were numerous problems which you solved

7 together with the military prosecutor; is that correct?

8 A. Yes, we would agree to try and assess what the situation was.

9 Q. You attempted to conduct the proceedings in such conditions in

10 the most effective way and to see that justice was done.

11 A. Yes, absolutely.

12 Q. In the course of the examination-in-chief, you briefly mentioned

13 all the problems you encountered when you detected and prosecuted

14 perpetrators of crimes. As a result, I would now also like to ask you

15 about certain matters. I'd like you to say whether they had an influence

16 on the way you performed your duties. In fact, could one say that in 1993

17 there were numerous problems as far as the organs of investigation were

18 concerned and as far as prosecutions were concerned, so as a judge and a

19 prosecutor it was hard for you to imagine that one could work in such

20 conditions?

21 A. I have already said that we managed to work, but the conditions

22 under which we worked were very difficult. And yet again, it's thanks to

23 the army that we were able to perform our duties to a certain extent.

24 Q. So in 1993 in Zenica, there was a lack of various items, the

25 items you required to live and also the legal organs were not functioning

1 properly. The territory under the control of the HVO and the fact that

2 Serbian forces also controlled other areas, as a result of these facts

3 Zenica was completely surrounded in 1993; is that correct?

4 A. Yes, absolutely.

5 Q. At the same time, Zenica was confronted with a population

6 problem. The population structure changed significantly and several

7 thousand refugees would sometimes arrive in one day in Zenica; is that

8 correct?

9 A. Yes.

10 Q. In addition to the blockade and daily armed attacks, many areas

11 for which your office was responsible were very far away and sometimes you

12 didn't have any contact with certain municipal public prosecutor's offices

13 in your area for weeks or for months; is that correct?

14 A. Yes, it's correct. But it's difficult to say which areas this

15 concerned exactly. But it's quite correct.

16 Q. In the surroundings of Zenica, there was a permanent armed

17 conflict. And as you yourself said, at the exit from Zenica towards Ovnak

18 there were HVO fortifications so that the road between Zenica and Travnik

19 had been completely blocked off. Is that correct?

20 A. Yes.

21 Q. However, as you said, in those impossible conditions you

22 attempted to perform your duties as best you could.

23 A. Yes. And I think that we managed to do that.

24 Q. However, when detecting persons and prosecuting them, you often

25 discovered that many crimes were perpetrated at night by unidentified

1 persons; is that correct?

2 A. Yes. In particular, by people in uniform. But they weren't

3 soldiers. Nevertheless, they had managed to get hold of uniforms or

4 weapons in some manner or they managed to get hold of both.

5 Q. Among the thousands of refugees who arrived in the Zenica area,

6 there were also persons who had previously been engaged in combat; for

7 example, in the defence of Jajce or certain other areas in Bosanska

8 Krajina, in Bosnian Krajina. And upon arriving in Zenica, they would

9 retain the weapons that they had brought with them. Was that a

10 significant problem in Zenica?

11 A. Yes, of course. It was a very big problem, especially for the

12 army.

13 Q. Would it be correct to say that you and the army in particular

14 had to face a certain problem; namely, people in uniform would

15 misrepresent themselves and claim that they were members of the BH army?

16 A. Or they would say that they were members of the military police.

17 This is what happened most frequently.

18 Q. In fact, you also had to prosecute such persons who had falsely

19 claimed to be members of the military police or of some of the brigades

20 that were part of the 3rd Corps.

21 A. Yes. I came across such cases, but I couldn't mention any

22 particular ones unless you provided me with more information. It wasn't

23 my task to check up on this and testify about it before this Court.

24 MS. RESIDOVIC: [Interpretation] Mr. President, unfortunately, I

25 haven't been able to have a judgement translated, one of the numerous

1 judgements in which the high court in Zenica, with regard to an indictment

2 issued by the prosecutor's office sentenced three persons for having

3 claimed -- having falsely claimed that they were members of the military

4 police. I have provided this judgement in B/C/S to the translators, to

5 the interpreters, so could we show the witness this document so that he

6 could confirm that this is one of the many judgements concerning persons

7 who had misrepresented themselves.

8 JUDGE ANTONETTI: [Interpretation] Yes. Before we deal with this

9 judgement, I'd like to go back to the document that you have had marked

10 for identification, DH55. This is the document that concerns the

11 establishment of district military courts. The document that you have

12 provided us with was published in the army's gazette, because we have the

13 army seal. And the English translation refers to the Official Gazette of

14 the BH Republic.

15 If we have a look at the contents of the document and the

16 temporary and final provisions, Article 42 - and could the Defence have a

17 look at Article 42 - states that this order, signed by

18 President Izetbegovic will enter into force when published in the

19 republic's Official Gazette. The date of the document is the 13th of

20 August. Whereas, the document from the army is the 26th of December,

21 1992. That's the date. Reference was made to the Official Gazette of the

22 republic. This reference was made in the English translation, but

23 apparently we don't have it.

24 MS. RESIDOVIC: [Interpretation] Mr. President, we have already

25 been faced with a similar problem. The English translation contains the

1 Prosecution's number. With the documents for the expert witness Reinhardt

2 we got the English text, the English translation of the text, and it was

3 published in the Official Gazette. As the witness has confirmed, it was

4 very difficult to print and deliver to areas outside of Sarajevo, the

5 Official Gazettes of Bosnia and Herzegovina. So on the 26th of December,

6 1992 the army decided that all laws that had previously been adopted and

7 published in Official Gazettes should be published in one gazette.

8 JUDGE ANTONETTI: [Microphone not activated]

9 THE INTERPRETER: Microphone for Mr. President.

10 JUDGE ANTONETTI: [Interpretation] We'll deal with that in a

11 minute. Unfortunately, we have to stop for technical reasons now. We

12 will deal with the matter after the break.

13 --- Recess taken at 12.33 p.m.

14 --- On resuming at 12.59 p.m.

15 JUDGE ANTONETTI: [Interpretation] We resume. I shall give the

16 floor to the Defence to complete their intervention.

17 MS. RESIDOVIC: [Interpretation] Mr. President, I have just

18 explained to you that the previously published laws in the Official

19 Gazette - this was in August 1992 - were again repeated in a special

20 edition of the Official Gazette of the Army of Bosnia and Herzegovina

21 towards the end of 1992. This was done in order to publish in one place

22 all the laws that concern the army. Again, we find ourselves in the same

23 situation. The Defence is using this because we have received

24 translations from the Prosecution within the Reinhardt -- expert Reinhardt

25 bundle. We had an identical text from the Official Gazette of the Army of

1 Bosnia and Herzegovina. Thank you very much.

2 Now I would kindly ask the witness, since before the break he

3 said that there was misrepresentation, and this is a crime for which a

4 number of persons were prosecuted and tried, I would like to ask the

5 witness to look at a judgement which we only have in B/C/S. I'm not going

6 to use it as an exhibit. The copy is not legible. It reflects the fact

7 that the witness drew our attention to at the time the Judges did not have

8 supply so the copy is rather illegible, but maybe the witness is going to

9 recognise the perpetrators and the crimes for which they were tried. Can

10 this judgement please be given to the witness, to the Trial Chamber, and

11 to the parties in the courtroom.

12 Q. Mr. Kapetanovic, do you remember that in 1993 you raised

13 indictments against Osman Buhic, Kresimir Zivanovic and Ramiz Buhic for

14 the crimes they committed by misrepresenting themselves as members of the

15 military police?

16 A. I've already said, and I can repeat it, I don't know whether the

17 term is adequate for this occasion. The crimes that were committed during

18 the war were committed under such circumstances. The perpetrators of

19 these crimes abused the uniform and the weapons that they got hold of in a

20 certain way, and they misrepresented themselves as military policemen. As

21 such, they committed crimes against civilians of all ethnic groups. They

22 would misrepresent themselves. They would enter the civilian premises.

23 They would use force. They even killed some civilians. The ultimate goal

24 was to illegally obtain certain property.

25 MS. RESIDOVIC: [Interpretation] Your Honours, I'm using this

1 document just to refresh the witness's memory.

2 Q. Thank you, Mr. Kapetanovic.

3 Please tell me: Is it true that because of such circumstances

4 under which the crimes were perpetrated during the night by unknown

5 perpetrators in 1993, despite all the efforts by the police and the law

6 enforcement agencies, a number of crimes remained elucidated?

7 A. That is true.

8 Q. Is it true that your prosecutor's office, as well as other law

9 enforcement agencies, had an additional problem? Many persons who may

10 have been victims of crimes --

11 [Defence counsel confer]

12 MS. RESIDOVIC: [Interpretation] Your Honours, I apologise. There

13 is a mistake in the translation. Give us a minute to resolve this. Page

14 66, line 24. My question was: A number of crimes were not elucidated and

15 perpetrators remained unknown, unidentified. The word was not recorded,

16 but the witness answered on line 25.

17 Q. I'm going to repeat my last question: Is it correct that

18 prosecutor's offices and the law enforcement agencies were facing a number

19 of problems and that the victims of crimes would leave the area under your

20 jurisdiction to the areas controlled by other military formations and that

21 you did not have any possibility to get in touch with such victims?

22 A. Yes, this was the case, because there was a lot of mistrust and

23 due to the mistrust and the activities of some individuals, there were

24 such cases.

25 Q. So the law enforcement agencies or you as prosecutors could not

1 go to the areas of Busovaca, Vitez, Kiseljak in order to interview certain

2 persons or collect other evidence; is that correct?

3 A. If I had gone there, chances are I would not have returned. So

4 yes, you're right.

5 Q. Is it true, Mr. Kapetanovic, that all of these problems had a

6 significant impact on the fact whether an investigation would take place

7 at all, because there was no evidence and there were no known

8 perpetrators? Is that correct?

9 A. Yes, it is correct; however, the official data may show you

10 exactly where conditions were in place, where conditions were not in

11 place. The records will show all the decisions, the evidence, and the

12 proof why investigations were not conducted.

13 Q. Is it true, Mr. Kapetanovic, that in 1993 you never received a

14 report from a possible victim of a crime, this victim being a Croat, nor

15 you received a report from a commission or a group which allegedly

16 investigated crimes committed against the Croatian population of Zenica?

17 Is it true that you never received any such report?

18 A. I cannot tell you anything about that. I cannot answer this. I

19 remember that this was really difficult. But for the most part, the

20 civilian police, in cooperation with the military police, worked together

21 on elucidating crimes and reported to the prosecutor about the

22 circumstances of such crimes.

23 Q. However, the victims themselves never came to your office to file

24 official reports.

25 A. Yes, they would arrive. They would complain. They would be

1 referred to the police. We would be in contact with the police over the

2 phone. We would instruct them to check the allegations and inform the

3 prosecutor's office. But this happened very rarely. It didn't happen

4 often. It happened very rarely. Cases like the ones that you have

5 mentioned were very rare.

6 Q. Is it true, Mr. Kapetanovic, that when you were talking about

7 problems that you faced that in 1993 you were understaffed in basic

8 prosecutor's offices? For example, in Zenica, there was no deputy, so you

9 engaged a refugee from Rogatica. In the basic prosecutor's office, there

10 was no deputy; there was just a prosecutor. And a similar situation was

11 in Travnik and in Zavidovici; is that correct?

12 A. Yes, that is correct. And when a question was raised about a

13 number of other prosecutor's offices, I've already testified about that,

14 who was there and how they operated.

15 Q. It was very difficult to establish who the perpetrators of crimes

16 were, and on the black market in Zenica property started appearing for

17 sale. You focussed on identifying the perpetrators of crime of illegal

18 trade because you believed that it was an indirect way for you to

19 establish who the perpetrators of crime were. Is that correct?

20 A. Yes. For that reason, we organised actions involving both the

21 civilian police and the military police, in order to prevent the illegal

22 trade and in order to discover the perpetrators of theft.

23 Q. Although the majority of the population in Zenica were Bosniak,

24 especially after the arrival of refugees, you paid a lot of attention to

25 discovering and prosecuting of those perpetrators who committed crimes at

1 the expense of the population of Zenica who belonged to the Croat and Serb

2 populations; is that correct?

3 A. Yes, that's correct.

4 Q. The number of criminal report files and measures you took, as

5 well as the problems you faced were reported to the republican

6 prosecutor's office in your reports, and you used the methodology

7 requested by the republican prosecutor's office.

8 A. Yes. Both the republican prosecutor's office, as well as the

9 political bodies in the area of Zenica, because they insisted on that.

10 MS. RESIDOVIC: [Interpretation] Can the witness please be shown

11 the report that the higher prosecutor's office submitted on the 25th of

12 February, 1994 to the republican prosecutor's office which gives an

13 overview of the situation in the course of 1992 and 1993. I'm going to

14 put to the witness several questions based on this report. At the same

15 time, I would like this document to be given a number for identification.

16 If the witness recognises this document as his own, I will tender this

17 document for submission.

18 JUDGE ANTONETTI: [Interpretation] Before we proceed, you have

19 also submitted a document which is in B/C/S and which is an excerpt from

20 the army gazette, and we do not have -- we have an English translation

21 from the Official Gazette, number 38/92. Are you going to tender this

22 document or are we going to give it a provisional number? The number is

23 00630021.

24 MS. RESIDOVIC: [Interpretation] Are you talking about the law on

25 military district courts?

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12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

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1 JUDGE ANTONETTI: [Interpretation] Yes.

2 MS. RESIDOVIC: [Interpretation] Yes. I want it to be marked for

3 identification, but I believe it already had a number, DH55.

4 JUDGE ANTONETTI: [Interpretation] No. Those are two different

5 documents of a different nature.

6 MS. RESIDOVIC: [Interpretation] Your Honours, the second document

7 was just for the witness to recognise it and to identify the law on

8 military prosecutor's offices, but we're not going to tender this document

9 either for identification or for admission. We are only tendering the law

10 on military district courts, which has been given an exhibit number,

11 DH55/E.

12 JUDGE ANTONETTI: [Interpretation] So maybe you should have

13 tendered both documents at the same time. The document that has been

14 translated that concerns the military courts provides additional

15 clarifications. However, if you don't want to tender it, we shall not

16 admit it.

17 We are going to give an exhibit number for the document which is

18 the report submitted to the republican prosecutor's office in Sarajevo.

19 Mr. Registrar, can we please have an exhibit number for this

20 document.

21 THE REGISTRAR: Your Honours, the B/C/S version gets the exhibit

22 number DH56, marked for identification; and the English translation gets

23 the exhibit number DH56/E, marked for identification.

24 MS. RESIDOVIC: [Interpretation] Mr. President, just for

25 clarification, the second document, I'm not tendering this document

1 because the document which is the translation of the document on military

2 district prosecutor's offices is not a translation of our document, so we

3 don't want to confuse the matter. We will have witnesses from the

4 military prosecutor's office, and we will prepare the document for the

5 Trial Chamber in a more appropriate way at that stage.

6 Q. Mr. Kapetanovic, is this your report to the republican

7 prosecutor's office in Sarajevo?

8 A. This report that you have provided me with is not signed by me.

9 It is probably a photocopy. But it is not important. However, I remember

10 this report very well. This report is dated 25 February 1994. I adhere

11 to all that has been said in this report. And if there are any

12 discrepancies between my testimony and the information contained in this

13 report, I would like to adhere by the information contained in this

14 report.

15 Q. Thank you very much.

16 I have another question about this report: Here we have

17 information provided by the higher prosecutor's office in Zenica which was

18 drafted according to the methodology of the higher prosecutor's office in

19 Zenica. Since we don't know anything about the methodology, can you

20 please tell us: The information under the column headed "1993," is this

21 the number of reports received, the number of reports pending, the number

22 of investigation requests, the number of indictments raised? And if all

23 this is true, would that mean that in 1993 you had over 1.000 individuals

24 being prosecuted?

25 A. I've already said - and I repeat - that I adhere by everything

1 stated herein, and I believe that this is a true representation of what

2 was going on at the time.

3 Q. Thank you. Since this was also stated in the report, do you

4 remember that in fact in 1993 the greatest number of criminal reports were

5 filed since the establishment of the high court in Zenica -- the high

6 public prosecutor's office in Zenica?

7 A. Yes, most likely.

8 MS. RESIDOVIC: [Interpretation] Your Honours, I would like to

9 tender this document into evidence, but at the same time, although the

10 Trial Chamber will probably decide about this after the Prosecution has

11 stated its position, the decree law forwarded to the military courts,

12 which was published in the Official Gazette of the army is something I

13 would also like to tender into evidence, as well as the excerpts from the

14 Law on Criminal Procedure. These documents are relevant for the testimony

15 of this witness. These documents have been marked for identification

16 DH54, DH55, and DH56.

17 JUDGE ANTONETTI: [Interpretation] What is the Prosecution's

18 position with regard to the official documents that concern the criminal

19 procedure followed in military courts? We're listening to what you have

20 to say.

21 MR. MUNDIS: Mr. President, the Prosecution has no objection to

22 DH54 being admitted into evidence. The Prosecution has no objection to

23 DH55 being admitted into evidence. With respect to DH56, the Prosecution

24 would respectfully request that a decision as to the admittance of that

25 document be deferred until the Prosecution has had the opportunity to

1 re-examine the witness with respect to that document, because we do have

2 some questions that -- that we would like answered prior to a decision

3 being taken with respect to DH56. Thank you.

4 JUDGE ANTONETTI: [Interpretation] With regard to DH54 and DH55,

5 which have been marked for identification, these two documents will now be

6 given definitive exhibit numbers.

7 As far as DH56 is concerned, we'll put it on standby while

8 waiting for additional questions.

9 Nevertheless, this document raises a certain number of problems,

10 and the Trial Chamber would like the witness to provide some

11 clarifications about the categories from 1 to 18 that appear in this

12 document. Does this have to do with offences, these categories that

13 relate to offences?

14 In addition, how is it that the document which he drafted hasn't

15 been signed? It doesn't contain his signature.

16 And in addition, how is it that an official document doesn't

17 contain the stamp of the Republic of Bosnia and Herzegovina? There is no

18 legal stamp in the document. Can the witness answer those question, those

19 three questions?

20 THE WITNESS: [Interpretation] As far as this report is concerned,

21 I have already said that I don't know why there isn't a signature, I don't

22 know why there isn't a stamp. Similarly, I don't know how the document

23 was obtained by the Defence. But I do remember this and I drafted this

24 report with Mr. Mutapcic. I can remember all this information. I

25 remember this report. And I don't believe that anyone could abuse this or

1 provide some sort of falsified report containing false information. So I

2 accept this report and I can confirm the contents of the report, if this

3 is an adequate answer to your question. But it is also possible to obtain

4 the original report with a signature and a stamp. It really is not a

5 problem.

6 JUDGE ANTONETTI: [Interpretation] Very well. And as far as the

7 categories 1 to 18 are concerned -- we can see, for example, 212 adults

8 under 1 and then 2 must be minors, and then there are 32 minors in 1993.

9 It says "82." This is under paragraph A. What does this correspond to?

10 Are these offences? And you were mentioning the number of persons who

11 were involved in the offences.

12 THE WITNESS: [Interpretation] These are the perpetrators, adults,

13 and it doesn't concern offences. These are the crimes. And it comes

14 under the jurisdiction of the high public prosecutor's office or the high

15 court. These are crimes that carry a sentence of ten years or more.

16 JUDGE ANTONETTI: [Interpretation] Very well. But we have no

17 information about paragraph 1, for example. What does this correspond to?

18 Theft, physical attacks? What does it correspond to? We know nothing

19 about it. You must have compiled this on the basis of a classification

20 which must have been mentioned in the letter from your superior which was

21 sent to you, A252, date 14th of January, 1994; the 28th of December, 1994;

22 and you received it on the 18th of February, 1994.

23 THE WITNESS: [Interpretation] Under this number, all the crimes

24 that are -- that fall within the jurisdiction of the high public

25 prosecutor's office are contained.

1 JUDGE ANTONETTI: [Interpretation] Very well. Carry on,

2 Mrs. Residovic.

3 MS. RESIDOVIC: [Interpretation].

4 Q. Mr. Kapetanovic, would it be correct to say that the organs of

5 the interior existed before the war and continued to work in the course of

6 the war itself?

7 A. Yes, absolutely.

8 Q. These were organs of the interior that had professional

9 employees, good equipment, and they were able to work in 1993; is that

10 correct?

11 A. Yes, on the whole, the personnel was the same. As far as the

12 equipment is concerned, it was never good, and that's the case today. Far

13 inferior to the equipment used in Western Europe. But the personnel was

14 the same and the equipment was the same, during the period that you have

15 asked me about and also during the pre-war period.

16 Q. However, as opposed to the civilian police - it was trained and

17 professional and equipped, to the extent that that was possible at the

18 time - the military police wasn't formed before the beginning of 1993, and

19 on the whole it was composed of people who had been mobilised and whose

20 duty it was to perform police tasks for the first time.

21 A. Yes, that's quite correct. But they had some agreement among

22 themselves. I don't know whether it was written or oral. And according

23 to this agreement, they had to cooperate when trying to detect any sort of

24 crime, especially when a crime was committed jointly by civilians and

25 members of the military.

1 Q. And in fact, that was my following question. Are you aware of

2 the fact that the civilian police in many cases assisted both

3 professionally and in terms of the equipment they had, they assisted the

4 military police, attempted to train them and enable them to carry out

5 their work to the extent that it was possible in those difficult

6 conditions?

7 A. The civilian police was better trained than the military police;

8 although, the military police followed certain courses, this was

9 insignificant. They cooperated - I'd like to repeat that - they

10 cooperated in detecting serious crimes, when these crimes were committed

11 by civilians and members of the military. And if the military police

12 asked for such assistance, I know that they provided that assistance.

13 Q. Mr. Kapetanovic, I'd now like to move on to another area. This

14 is an area you haven't discussed with my learned colleague from the

15 Prosecution, but I think that it's part of the duties -- concerns part of

16 the duties that you performed at the time. Would it be correct that as a

17 prosecutor you weren't bound by the legal assessments made by the police

18 when criminal reports were filed?

19 A. Well, if the prosecutor wasn't bound, neither was the court, with

20 regard to the legal description of a given act.

21 Q. And that's my following question: Would it be correct to say

22 that in our country the rule was that the court was familiar with the law

23 and the law was only bound by the factual description contained in the

24 indictment, the indictment that you issued; whereas, the court itself

25 provided the legal description, legal qualification of the acts referred

1 to in the indictment?

2 A. That's correct.

3 JUDGE ANTONETTI: [Interpretation] Following this answer, this

4 legal answer, does it mean that the courts in your country are only seized

5 of facts and it's the judges that qualify acts in legal terms, acts which

6 may subsequently be prosecuted?

7 To simplify the question: If the prosecutor legally -- provides

8 a legal description of an act, do the judges have the right to change this

9 legal description of an act?

10 THE WITNESS: [Interpretation] The judge has the right to change

11 the legal description. He is not bound by the legal description that the

12 prosecutor provides. But if the judge is convinced of the legal

13 description given by the prosecutor on the basis of the facts -- well, he

14 can only complain in that case and do nothing else.

15 JUDGE ANTONETTI: [Interpretation] Very well.

16 MS. RESIDOVIC: [Interpretation]

17 Q. However, the appeals court is finally not bound by the legal

18 position of the prosecution. The legal assessment is issued quite

19 independently by the appeals court. Is that correct?

20 A. Yes, that's correct.

21 Q. In connection to the excerpt from the Law on Criminal Procedure,

22 I provided you with Article 346 on the Law on Criminal Procedure, which

23 covers the subject that the witness is now referring to.

24 A. And what should I do now?

25 Q. I just wanted to draw the Trial Chamber's attention to the

1 provisions in this article which provides that the court is not bound by

2 the legal description of an act provided by the prosecutor.

3 Mr. Kapetanovic --

4 JUDGE ANTONETTI: [Interpretation] You're referring to Article

5 146 -- 346?

6 MS. RESIDOVIC: [Interpretation] Yes. 346, paragraph 2: "The

7 Court isn't bound by the suggestions made by the prosecutor with regard to

8 the legal description of a given act."

9 Q. Mr. Kapetanovic, the Prosecutor put a number of questions to you

10 that had to do with war crimes. You said that according to the criminal

11 law of the SFRY, which was adopted and applied as the law of Bosnia and

12 Herzegovina, such crimes were covered under Chapter 16 of the criminal

13 law; is that correct?

14 A. Absolutely.

15 Q. One of the most frequent crimes unto this law was war crime

16 against the civilian population.

17 A. Yes.

18 Q. As part of this crime, certain acts were described which came

19 under this description, and it also referred to murder, serious bodily

20 injury, physical injury, rape, theft of personal property, et cetera; is

21 that correct?

22 A. Yes, that's correct. That is contained in those legal

23 provisions.

24 Q. According to what you have testified, you very frequently

25 prosecuted the perpetrators of crimes for murder, rape, aggravated

1 robbery, theft, and you described these acts in your requests for

2 investigations and in your indictments; is that correct?

3 A. Yes, it is.

4 Q. Those acts were treated as special crimes according to the

5 criminal law of Bosnia and Herzegovina; is that correct?

6 A. Yes, it is.

7 Q. You never thought that such acts, that the acts that you

8 prosecuted, might be described as war crimes against the civilian

9 population because you had evidence that this was done sporadically, that

10 it was not something that had been organised, and that the persons

11 involved committed these acts with some sort of a criminal intent. So you

12 never described these acts as war crimes committed against the civilian

13 population. Is that correct?

14 A. There were many such crimes, and each act was assessed

15 independently. If anything of that kind had been organised, for the

16 purpose of ethnic cleansing or genocide or for the purpose of committing a

17 crime against the civilian population, then naturally I would describe the

18 crime in the terms referred to under Chapter 16.

19 Q. Would it be correct to say that you prosecuted tens -- scores of

20 Bosniaks or Muslims for having committed crimes against the Croatian

21 population in Zenica? You prosecuted them for theft, some of them for

22 murder, some for aggravated robbery, et cetera.

23 A. We prosecuted both communities. But since the Bosniak community

24 was in the majority, they committed more crimes. According to the

25 information we have, they were in the majority, and there were far more

1 crimes that they had committed. So we would just assess whether an act

2 had been committed, if there was enough evidence collected, et cetera.

3 But as to who the perpetrator was, this wasn't something that was taken

4 into account.

5 Q. Would it be correct to say that the acts that you have described

6 in numerous indictments, acts that you have described as the murder of,

7 for example, a Croatian citizen in Zenica or the act of stealing the

8 property of a Croat or the act of raping a Croatian civilian, would it be

9 correct to say that not even the court, who had the final say in

10 describing such acts, not even the court described such acts as war

11 crimes?

12 A. Yes, that's absolutely correct. But I would like to repeat the

13 following: Each event, each act was assessed on an independent basis,

14 regardless of whether it was a war crime or something else, rape or

15 murder. But often many acts of aggravated robbery were committed. The

16 perpetrators' objective was only to obtain property, given the fact that

17 many items were lacking, and it was easier for such perpetrators to commit

18 these crimes against Serbs because they were in a particular position,

19 they were in a minority, they were afraid, et cetera, et cetera. So many

20 members of this community withdrew. The elderly remained. And it was

21 very easy for these people to commit such acts. Aggravated robbery was

22 often committed against the elderly and the exhausted, and in fact there

23 were many such crimes.

24 Q. Would it be correct to say that your office received criminal

25 reports for the murder and rape of some members of the Croatian

1 population, as well as reports concerning theft by armed groups, and it

2 received these reports from Bugojno too?

3 A. I really can't remember.

4 Q. Is it true that your assessment of events and facts that you

5 described and the final assessment of the Court, which decided on whether

6 a murder or rape committed was just an ordinary murder or rape, or was

7 it -- could it be considered a war crime, that your assessment could not

8 be influenced either by the civilian or the military police? It was the

9 exclusive right of the Court to decide that; is that true?

10 A. Yes, it is.

11 MS. RESIDOVIC: [Interpretation] Mr. President, I have another

12 area that I wish to address with this witness. I'm looking at the time.

13 We only have one minute before the end.

14 JUDGE ANTONETTI: [Interpretation] Witness, just a clarification:

15 The Defence asked you about the assessment of the situation and the facts

16 and your feeling with regard to that. In this report that the Defence has

17 submitted, the Prosecution is now going to tell us what they think about

18 that. At the end of this report, you mentioned that you did not have any

19 statistical data coming from the prosecutor's offices in Bugojno, Travnik,

20 and Zavidovici. Why did you not have any statistical data from those

21 offices, from these three offices? That's the last paragraph of your

22 report. If you are the one who drafted this report, you will probably

23 remember the gist of this document.

24 THE WITNESS: [Interpretation] I can't tell you whether this

25 information is available or not. I can't remember. I would like to

1 answer your question, but I can't, because I don't know -- I don't

2 remember the times that were at the time.

3 JUDGE ANTONETTI: [Interpretation] Very well, then. Since there's

4 nobody scheduled after us in the courtroom, maybe we can continue. But we

5 would have to hear from the Defence how much time they need. If they

6 cannot tell us, then maybe we can continue tomorrow. How much time do you

7 still need, the Defence?

8 MS. RESIDOVIC: [Interpretation] Your Honours, I believe that I

9 would need at least 20 minutes to half an hour, because I have an entire

10 area to address. I believe that my colleagues from the Kubura Defence

11 team also have a number of questions, so it seems to me that it would be

12 appropriate for us to adjourn at this point and continue tomorrow because

13 tomorrow, as far as I know, we have only one witness scheduled for

14 cross-examination.

15 JUDGE ANTONETTI: [Interpretation] Mr. Mundis.

16 MR. MUNDIS: I was just going to alert the Trial Chamber to the

17 fact that my learned colleague just pointed out, Mr. President, we -- we

18 do only have one witness scheduled for tomorrow, and that is a 92 bis

19 witness who's been called for cross-examination only. So the Prosecution

20 would concur with the Defence, in terms of being able to stick to the

21 schedule by resuming tomorrow morning.

22 JUDGE ANTONETTI: [Interpretation] Witness, as far as you are

23 concerned, are there any problems for you to come back tomorrow morning?

24 Did you understand my question?

25 THE WITNESS: [Interpretation] Yes, I understand. No problems at

1 all. I accept whatever you say. Any decision that you make, I will abide

2 by it.

3 JUDGE ANTONETTI: [Interpretation] Since the Defence needs another

4 half an hour and since our schedule tomorrow allows us some time for this

5 witness as well, we will adjourn. I invite all of you to come back

6 tomorrow morning at 9.00. We shall proceed with the cross-examination. I

7 thank you all, and I'll see you at 9.00 tomorrow morning.

8 --- Whereupon the hearing adjourned at 1.47 p.m.,

9 to be reconvened on Wednesday, the 3rd day of

10 March, 2004, at 9.00 a.m.

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