Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3880

1 Wednesday, 3 March 2004

2 [Open session]

3 --- Upon commencing at 9.08 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Madam Registrar, can you please

6 call the case.

7 THE REGISTRAR: Good morning, Your Honours. Case Number

8 IT-01-47-T, The Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Madam Registrar.

10 Appearances for the Prosecution, please.

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

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

13 case manager.

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

15 Appearances for the Defence.

16 MS. RESIDOVIC: [Interpretation] Good morning, Your Honours. On

17 behalf of General Hadzihasanovic, Edina Residovic, counsel,

18 Stephane Bourgon, co-counsel, and Muriel Cauvin, legal assistant. Thank

19 you.

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

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

22 legal assistant.

23 JUDGE ANTONETTI: [Interpretation] Thank you. The Chamber would

24 like to greet everybody present in the courtroom, representatives of the

25 Prosecution, representatives of the Defence, the accused, as well as the

Page 3881

1 accused, as well as the court reporter, who is taking notes today, as well

2 as the representative of the Registry. In order for us to be able to

3 follow today's hearing, we have to say that we shall continue the

4 cross-examination of the witness whom we heard yesterday. Therefore, I'm

5 going to ask the usher to bring the witness into the courtroom.

6 [The witness entered court]

7 JUDGE ANTONETTI: [Interpretation] Good morning, sir.

8 THE WITNESS: [Interpretation] Good morning.

9 JUDGE ANTONETTI: [Interpretation] We continue your testimony

10 today. I'm going to give the floor to the Defence for the questions

11 within the scope of their cross-examination. The Defence has the floor.

12 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President.

13 WITNESS: SULEJMAN KAPETANOVIC [Resumed]

14 [Witness answered through interpreter]

15 Cross-examined by Ms. Residovic [Continued]

16 Q. Good morning, Mr. Kapetanovic.

17 A. Good morning.

18 Q. Yesterday, we spoke about numerous problems in detecting and

19 prosecution of perpetrators of crimes and efforts undertaken by the law

20 enforcement agency in order to elucidate crimes and punish the

21 perpetrators thereof. Is it true, Mr. Kapetanovic, that in some cases you

22 managed to detect the perpetrator of the crime immediately and undertake

23 prosecution measures immediately? Is that correct?

24 A. In response to that question, I would like to mention some

25 specific events and specific perpetrators. It's very hard to say whether

Page 3882

1 we did or whether we did not. But there were such cases despite the

2 difficulties that we spoke about yesterday.

3 Q. I would now ask the usher to present to the witness a number of

4 indictments that the Defence managed to come across during their

5 investigation in the court in Zenica. This is going to serve to

6 corroborate what the witness has just said in response to my previous

7 answer.

8 Mr. Kapetanovic, we have photocopied just the introduction into

9 the indictment. We have omitted the statement of reasons that is

10 contained in every indictment. Is this an indictment brought by the court

11 where you served as the prosecutor?

12 A. Believe me, I don't remember. I'm looking at the indictment. I'm

13 looking at the name. I have looked at the factual description of the

14 crime, but I don't remember.

15 Q. Thank you very much. It may have been our mistake not to have

16 given you the entire indictment. However, this is one of the indictments

17 where the incident and the indictment were made at the same time. Have

18 there been cases that because of the problems with the detection of

19 crimes, the prosecution did not take place at the same time because it was

20 necessary to verify facts about the crime and the perpetrator thereof?

21 Was that another situation that you faced during that year?

22 A. Can you please explain a little bit what you're aiming at? I did

23 not quite understand your question. Your question was rather broad.

24 Q. In the first case, that's what I've asked you, due to the

25 difficulties that you had in detecting and prosecution, and according to

Page 3883

1 the report there were hundreds of perpetrators at that time, is it true

2 that in some situations like the first one that I showed to you, you were

3 able to detect the perpetrator immediately and immediately prosecute such

4 a perpetrator?

5 A. We are still not able to do that, and especially this was not

6 possible during that period of time. This was a specific time, if we are

7 talking about the years 1993 and 1994. So it was not possible.

8 Q. However, if the law enforcement agency were to detect a

9 perpetrator immediately, then a procedure before the high court in Zenica

10 was instigated immediately.

11 A. If the perpetrator was detected and, especially if he was involved

12 in a grave crime, then this incident would be given a lot more attention

13 than a misdemeanor or an offence carrying a lower penalty. And the police

14 as law enforcement agency took statements, collected evidence, both

15 objective and subjective evidence and then they file a report to the

16 criminal prosecutor's office. In more serious cases, this was done in

17 cooperation with the prosecutor.

18 Q. Thank you. In such situation when the perpetrator was discovered

19 and if that perpetrator had committed a serious crime, it was customary

20 and even obligatory to remand such a perpetrator in custody. Is that

21 correct?

22 A. Yes, it is correct.

23 Q. Mr. Kapetanovic, I'm going to show you an example from your

24 prosecutor's office to illustrate what we have just been talking about.

25 This is one of the examples from the prosecutor's office.

Page 3884

1 MS. RESIDOVIC: [Interpretation] Can the usher please show the

2 document to the witness. We have enough copies for the Honourable Judges

3 and all the others present in the courtroom.

4 MR. MUNDIS: Mr. President.

5 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Mundis.

6 MR. MUNDIS: Just for the record, I'm not sure what my learned

7 colleague is intending on doing with the previous document. But just so

8 as to avoid confusion, perhaps it either should be withdrawn or marked for

9 identification so that we don't have numerous documents floating around

10 without numbers.

11 JUDGE ANTONETTI: [Interpretation] Yes. As regards the first

12 document, indictment brought against Mr. Atif Karic, what is your

13 intention? Do you want to tender this document into evidence or did you

14 just produce this document for the purpose of your cross-examination

15 without the intention of tendering it into evidence?

16 MS. RESIDOVIC: [Interpretation] Your Honour, I would first like

17 this document to be marked for identification. This is one of the

18 documents we found in the archives. Since the witness could not remember

19 this document, I would not tender it into admission of evidence, but I

20 would like it to be marked for identification.

21 JUDGE ANTONETTI: [Interpretation] We are going to give a number to

22 this document to be marked for identification, Madam Registrar.

23 THE REGISTRAR: DH57 and DH57/E, marked for identification,

24 Your Honours.

25 JUDGE ANTONETTI: [Interpretation] This document has been marked

Page 3885

1 for identification. DH57, B/C/S version, and DH57/E, English translation.

2 MS. RESIDOVIC: [Interpretation] Thank you. The second document I

3 have given to the witness, can it be given an exhibit number, please.

4 JUDGE ANTONETTI: [Interpretation] The document concerning

5 Osman Buhic, Madam Registrar, can you please give us a number for

6 identification.

7 THE REGISTRAR: DH58 and DH58/E, marked for identification,

8 Your Honours.

9 JUDGE ANTONETTI: [Interpretation] Very well, then. DH58, B/C/S;

10 DH58/E, English translation.

11 MS. RESIDOVIC: [Interpretation]

12 Q. Mr. Kapetanovic, is this a request to carry out an investigation,

13 the number is KT3873, dated 31st of August 1993. This was filed against

14 three persons who were immediately remanded in custody because there was a

15 suspicion that they had committed an aggravated robbery. Is that one of

16 the documents that we spoke about just a little while ago?

17 A. If you will allow me, I would like to draw a parallel between the

18 first document and this one. Yesterday, I told you that I was very busy.

19 I did not participate in the cases because I had a number of deputies at

20 that time. One of my deputies was Obrad Rajcevic, which I apologise if I

21 didn't mention him yesterday when I was giving you the name of my

22 deputies. And as far as your question is concerned, and this particular

23 case, this indeed was a very serious crime. Those persons were in

24 uniforms, and they misrepresented themselves as members of the army. They

25 were remanded in custody. What else could a prosecutor do? This was a

Page 3886

1 very difficult and critical year, and the person who was attacked was of a

2 different ethnic background. Nothing else could be done but what was

3 indeed done and what was described here.

4 MS. RESIDOVIC: [Interpretation] Since the witness has identified

5 the document and also recognised his deputy who drafted this document, I

6 would like to tender this document into evidence in order to prove that

7 the prosecutor prosecuted such crimes, qualified such crimes, and that

8 those crimes were tried in keeping with the law.

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

10 MR. MUNDIS: Mr. President, the Prosecution has no objection to

11 this document being admitted into evidence.

12 JUDGE ANTONETTI: [Interpretation] Thank you. You may proceed.

13 MS. RESIDOVIC: [Interpretation] Your Honours, are you going to

14 give us a number, and are you going to render your ruling on the admission

15 of this document into evidence, or shall I proceed with my

16 cross-examination before that?

17 JUDGE ANTONETTI: [Interpretation] Please proceed. You have two

18 other documents, don't you?

19 MS. RESIDOVIC: [Interpretation]

20 Q. Mr. Kapetanovic, in order to show the Trial Chamber an example of

21 what you just spoken about, I would like to ask you, is it correct that

22 some crimes, even serious crimes, despite all the efforts invested by the

23 law enforcement agencies and the prosecutor have never been elucidated,

24 and the perpetrators have never been discovered? Is that true?

25 A. Yes, it is true.

Page 3887

1 MS. RESIDOVIC: [Interpretation] Can we please show a document to

2 the witness, an investigation started in January 1993. However, the

3 perpetrator was not discovered even up to the year 2003.

4 Q. For clarification, the Defence found these documents during their

5 investigation in the archives of the cantonal court and the cantonal

6 prosecutor's office in Zenica. For the purpose of this cross-examination,

7 only the first and the last documents were taken. However, we have a lot

8 more documents illustrating efforts invested at that time by the law

9 enforcement agencies and by the prosecutor's office. And while the

10 witness is looking at this document, I would kindly ask for these two

11 documents to be given a number for identification.

12 JUDGE ANTONETTI: [Interpretation] Yes, we have the first document.

13 The date is 20 May 2003. The document was signed by Mr. Curic, who is the

14 deputy prosecutor.

15 Mr. Mundis, you have the floor.

16 MR. MUNDIS: Mr. President, for the record, the Prosecution would

17 object to my learned colleague's characterisation or statement that they

18 have numerous documents in their possession. The Prosecution submits that

19 that borders on testimony.

20 JUDGE ANTONETTI: [Interpretation] The Chamber has noted that the

21 Defence has a number of documents, but are only presenting a few. They

22 are not going to introduce other documents. We shall rely on the

23 documents that are discussed today, not on the whole number of documents.

24 The documents signed by the deputy cantonal prosecutor, Mr. Curic, the

25 date is 20 May 2003. Madam Registrar, can we please have a number for

Page 3888

1 this document.

2 THE REGISTRAR: DH59 and DH59/E, marked for identification,

3 Your Honours.

4 JUDGE ANTONETTI: [Interpretation] DH59 in B/C/S; DH59/E, English.

5 And we have a second document. The date is 2nd February 1993 signed by a

6 judge, Mr. Faik Spahic. This document should also be marked for

7 identification. Madam Registrar, can we have a number.

8 THE REGISTRAR: DH60 and DH60/E marked for identification,

9 Your Honours.

10 JUDGE ANTONETTI: [Interpretation] DH60 for B/C/S; DH60/E, English

11 version. Thank you. You may proceed.

12 MS. RESIDOVIC: [Interpretation]

13 Q. Mr. Kapetanovic, if you look at the document with the date 26

14 January 1996 [as interpreted], is this a record of the on-site

15 investigation into the murder of Bruno Skocilic?

16 A. Yes, I have looked at the record. I have looked at the decision.

17 I remember the case because the father of the victim came to see me on a

18 number of occasions. This incident was before my term of office. I

19 started my term of office on the 20th of May of that year. This is not

20 important. I'm just mentioning it -- this. You've asked me whether there

21 were such cases. Yes, there were such cases, and this incident also is

22 one of those where the perpetrator was not found, although we had a desire

23 to elucidate this event because of the -- event because of the family and

24 because of the fact that this young man, as far as I can remember, was a

25 member of the army or the police. Either of the army or of the police.

Page 3889

1 Q. Thank you very much. So you confirm that you are aware of this

2 case, that it was prosecuted by your prosecutor's office, that despite all

3 the efforts and investigation, the perpetrator was never discovered up to

4 the year 2003?

5 A. Yes, I can confirm that. And we are still investigating this

6 crime together with a number of other crimes.

7 Q. Thank you very much. My colleague has an objection to raise, it

8 seems.

9 MR. MUNDIS: No, Mr. President, actually page 9, line 11 in the

10 English transcript, the date of the document says 1996. And in fact, the

11 date of the document is 1993.

12 JUDGE ANTONETTI: [Interpretation] Yes, it's the 22 -- no, the date

13 on the document is the 26th of January 1993. It's not 1996.

14 Please carry on.

15 MS. RESIDOVIC: [Interpretation] Your Honour, I suggest that both

16 documents that have been recognised by the Prosecution as documents from

17 the archives of the high court in Zenica and the victim of the murder,

18 Bruno Skocilic, has also been recognised, as well as his father. As a

19 result, I think we have all the elements we need for these two documents

20 to be admitted into evidence.

21 JUDGE ANTONETTI: [Interpretation] I'll turn to the Prosecution. I

22 would like to point out that the Defence is requesting that four documents

23 be admitted into evidence. These are official documents. They're all

24 from the prosecutor's office in Zenica. The witness has recognised the

25 documents, and the documents deal with investigations conducted during the

Page 3890

1 period when the witness held his post as a judge. As far as the last

2 document is concerned, he wasn't holding his position, but as he took

3 office in May, he was competent because his position included -- covered

4 the investigation that was still ongoing. And this investigation wasn't

5 concluded because the perpetrators weren't identified. The witness has

6 identified these documents which relate to the duties that he performed.

7 The Defence has pointed out that crimes were committed apparently by

8 individuals who claimed to be members of the military.

9 What is the Prosecution's position in relation to the

10 admissibility into evidence of these documents?

11 MR. MUNDIS: Mr. President, the Prosecution has no objection to

12 DH59 and DH60 being admitted into evidence. Again, I would note page 10,

13 line 14 of the English transcript indicates the documents have been

14 recognised by the Prosecution. That should be "recognised by the

15 witness."

16 JUDGE ANTONETTI: [Interpretation] Yes. The documents were

17 recognised by the witness who worked as a prosecutor at the time.

18 After the break, we will render a decision about these four

19 documents, two of which haven't been objected to.

20 MS. RESIDOVIC: [Interpretation]

21 Q. Mr. Kapetanovic, yesterday, my learned colleague from the

22 Prosecution asked you a number of questions that concerned the information

23 you had about people who had been taken to the hospital in Zenica from the

24 Susanj and Ovnak area. They had been taken to the mortuary in June 1993.

25 Although these factors aren't contained in the indictment, I have a few

Page 3891

1 questions that I would like to ask you in relation to what the Prosecution

2 asked you about. Before I do so, I would like to point out, Your Honours,

3 that in the course of its investigations, Defence counsel found some of

4 the documents in the archives of the cantonal court in Zenica. They

5 concern this period, and they found some documents from the prosecutor's

6 office in Zenica. Before questions are put to the witness, I would like

7 these documents to be shown to the witness. We have a sufficient number

8 of copies for the Trial Chamber and for our colleagues in the courtroom.

9 I would also like to say that from that documents from the

10 prosecutor's office, we've changed a document, which is the official note

11 of Vlado Adamovic. We have exchanged it with an identical document

12 provided to us by the Prosecutor's office because that document has a

13 Prosecution title, and it's already been translated into English. We

14 wanted to use that document and not the one that was in the archives. And

15 I would like to reiterate that the document is identical; the only

16 difference is that it bears a Prosecution number.

17 As the witness has had a look at the document, I would like to ask

18 the witness to answer a number of questions. It's true that over ten

19 years have passed since the event. The Trial Chamber has pointed this out

20 on a number of occasions. And with regard to this subject,

21 Mr. Kapetanovic, would it be true to say that certain rumours and

22 information were obtained by you unofficially, at least initially? Is

23 that correct?

24 A. Of the 17 corpses that were taken to the mortuary -- well, I don't

25 remember having mentioned rumours. But perhaps I made -- perhaps I heard

Page 3892

1 rumours, too, and my colleague, Suada Halilagic, told me something about

2 that. She had more information about that than I did, at least as far as

3 I can remember. Vlado Adamovic, the judge, told her about this. He is

4 the person who compiled the official note. So I am telling you what I can

5 remember from that period. I'd like to repeat that she arranged a

6 meeting, and I remember that it was after 10 or 15 days at the most.

7 That's when we spoke to Mr. Ramiz Dugalic.

8 Q. In the documents that we found in the course of our investigation,

9 there's a document, number KT9793, dated the 5th of October 1993 which

10 your colleague forwarded to the district military court, to the judge,

11 Vlado Adamovic. In that document, she requests that the judge provide his

12 own information about this event. Is it possible that your prosecution

13 wanted to participate in clarifying the circumstances and also to see what

14 jurisdiction it had to deal with the particular case? Was that the

15 purpose of the document -- of the request?

16 A. I stand by everything that I said yesterday about this event. And

17 I wouldn't want to repeat anything. But the question you're asking me, as

18 to whether it was our desire, well, yes, absolutely it was. That is why

19 we went to discuss this matter, that apart from the fact that it's my duty

20 to tell the truth and nothing but the truth, I would also like to show

21 that my intentions are good. Believe it or not, what you have now shown

22 to me, KTI97/93, dated the 5th of October 1993, this is a document that my

23 colleague, Suada Halilagic, compiled on her own initiative. I haven't

24 seen such a document before. Perhaps I saw it, but I don't remember.

25 But I would like to repeat that I don't know the reasons for which

Page 3893

1 my colleague compiled this document on her own initiative. And if you

2 will allow me to comment, I don't see that she erred in compiling this

3 document. She showed her goodwill in clarifying the matter.

4 Whether -- the body she wanted to do this with is not important, what is

5 important is she wanted to discover the perpetrator.

6 Q. Mr. Kapetanovic, I wasn't suggesting that something wrong had been

7 done here. The procedure followed seems to be quite legal. Is it correct

8 to say that this document, which is in the archives of the court and of

9 your office, on the same date at the request of your colleague, the judge

10 from the military court responded to the document and attached documents,

11 his own official note and information that he provided to the executive

12 committee of the assembly of Zenica Municipality?

13 A. With regard to this document and my colleague's request, I have

14 nothing that I'd like to repeat. As far as the official note is

15 concerned, I told the investigator when he was in Zenica that a record was

16 made, and my colleague Vlado Adamovic went to the site. And when the

17 investigator showed me the record, I read it. And I remember, in spite of

18 the fact that I have the document before me now, that an official note was

19 made. And it was on the basis of the fact that some individuals had

20 recognised the corpses.

21 Q. So the note compiled by your colleague, Mr. Adamovic, which you

22 were familiar with then as you are now, did not show the crimes had been

23 committed against these persons. Is that correct?

24 A. I went to see Mr. Dugalic for the sake of caution to check up on

25 this, to make sure that I hadn't made an error.

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Page 3895

1 Q. Thank you.

2 So Mr. Kapetanovic, could I draw the conclusion that in addition

3 to those efforts, communication with the court, with the security organ of

4 the 3rd Corps, in 1993, you didn't obtain any information that would

5 support the suspicion that a crime had been committed?

6 A. That's correct. And the reason is as follows: I thought in each

7 case that this was a matter for the military prosecutor's office or the

8 court or the military police to deal with. And I have spoken about

9 this -- I spoke about this yesterday.

10 Q. Would it be correct to say that after the Dayton Agreement was

11 signed and peace was established in Bosnia-Herzegovina, prosecution

12 offices in Herceg-Bosna and the prosecution in the part of the state that

13 was under the control of the BH army exchanged information on many events

14 that transpired in the course of the war?

15 A. That is absolutely correct. But if you have any specific cases

16 you would like to mention, I might be able to remember them. As far as I

17 can remember, that was an exchange that had to do with court decisions in

18 1996, perhaps a little later too.

19 Q. Would it be correct to say that immediately after the war, a large

20 number of indictments appeared, were issued, and there were investigations

21 into scores, sometimes hundreds of individuals. And as a result, the

22 international community had to respond to this. And with the cooperation

23 of the ICTY, it had to adopt the so-called "rules of the road." Is that

24 correct?

25 A. For the sake of caution, I just want to be brief. Bosniaks fled

Page 3896

1 in one direction; Croats in other. The HVO, their bodies, took statements

2 from Croatian victims, and we took statements from Bosniaks. So we had

3 proof about crimes committed by HVO members and they allegedly had proof

4 of crimes committed by the army. When this exchange took place, I

5 remember very well that in one request for an investigation and in a

6 decision on conducting an investigation, we were provided with cases

7 concerning 55 persons. Spahic Besim, and I think I can say he wouldn't

8 even kill an ant. I was surprised to see they had submitted these cases

9 to the Tribunal so they could assess it. And the Tribunal, and this also

10 has to do with the music school, the Tribunal pronounced itself on about

11 four or five individuals. I think they -- I think I could remember

12 certain names and numbers in relation to category A. I don't know if this

13 answer is sufficient.

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7 JUDGE ANTONETTI: [Interpretation] Mr. Mundis.

8 MR. MUNDIS: Mr. President, the Prosecution would like to briefly

9 address the Trial Chamber (Redacted), if that's possible, please.

10 JUDGE ANTONETTI: [Interpretation] Can we please go into private

11 session, Madam Registrar.

12 [Private session]

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13 [Open session]

14 THE REGISTRAR: We're in open session, Your Honour.

15 JUDGE ANTONETTI: [Interpretation] Now that we are in open session,

16 Defence counsel has requested that a number of documents be tendered into

17 evidence. The Prosecution has no objection with regard to DH58, 59, and

18 60. With regard to DH57 marked for identification, the Prosecution is not

19 under the impression that the Defence wants to tender this document into

20 evidence. And as far as the subject of the 17 victims is concerned that

21 were carried out by the witness's deputy, the Defence is requesting that

22 this document be tendered into evidence. So what is the Prosecution's

23 position with regard to having these documents tendered into evidence, the

24 documents which come from Suada Halilagic and the competent military

25 court, as well as documents that have to do with autopsies?

Page 3908

1 MR. MUNDIS: Mr. President, if I could just get a clarification

2 from my learned colleague, is she intending to tender this entire case

3 file as one exhibit? Is that the intention of the Defence?

4 MS. RESIDOVIC: [Interpretation] Yes.

5 MR. MUNDIS: I assume from the Registrar this would be DH61?

6 THE REGISTRAR: Yes, Your Honours.

7 MR. MUNDIS: The Prosecution has no objection to DH61 being

8 admitted into evidence, Mr. President.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis.

10 We will withdraw now to have our break. And we will render our

11 decision at 10 to 11.00, after the break.

12 --- Recess taken at 10.24 a.m.

13 --- On resuming at 10.52 p.m.

14 JUDGE ANTONETTI: [Interpretation] We'll now resume and the

15 Trial Chamber will render its decision regarding the documents. The

16 bundle that was just presented, the number that will be given is 61.

17 DH61, B/C/S, DH61/E will be the number for the English translation. We

18 also admit into evidence DH60, DH59, and DH58. DH57 which is a document

19 which hasn't been recognised by the witness will not be admitted. That

20 deals with the documents.

21 Madam Registrar, we will now go into private session.

22 [Private session]

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21 [Open session]

22 THE REGISTRAR: We're in open session.

23 JUDGE ANTONETTI: [Interpretation] We're in open session. You may

24 proceed with your questions, and the Trial Chamber will also ask the

25 witness some questions, if the questions that you have don't relate to the

Page 3911

1 questions that the Trial Chamber would like to ask the witness, which

2 concern certain legal, technical matters. You may take the floor.

3 Cross-examined by Mr. Ibrisimovic:

4 Q. [Interpretation] Yesterday, you discussed the problems that the

5 high prosecutor's office had working in 1993 and 1994.

6 A. Yesterday, I spoke not only about the problems in the prosecutor's

7 office, but also about judicial problems in general. I was also referring

8 to the military prosecutor's office, to the military court and to the

9 cantonal, that is to say, the high court during the relevant period. And

10 naturally, to my own office. It was extremely difficult to work at the

11 time. The judicial system was functioning. We did perform our duties,

12 but the borders were closed off. We were under a blockade. There was a

13 shortage of everything, paper, water, electricity. I'm referring to this

14 particular period of time. And we were only able to function thanks to

15 the BH Army at the time. This enabled us to function to a certain extent.

16 Q. Another particular problem was collecting evidence and finding

17 witnesses who weren't in Zenica or who were in the territory under the

18 control of the HVO. And it was then difficult to process certain cases

19 immediately. Is that correct?

20 A. Yes, that's absolutely correct. If you need certain

21 clarifications, I can go into that. If not, please tell me.

22 Q. Would it be correct to say that representatives of the

23 prosecution, the civilian police, and the military police weren't able to

24 perform any duties in the territory under the control of the HVO? They

25 weren't able to collect evidence?

Page 3912

1 A. During this period of time, it was impossible to establish contact

2 of any sort, especially if it concerned crimes or if it related to Chapter

3 16, that is to say, crimes against humanity and international law. In

4 spite of the fact that we knew each other very well before the war, both

5 sides knew each other very well before the war, but in spite of this fact

6 it was difficult.

7 Q. Yesterday, in response to a question from Ms. Residovic, you said

8 if you had left, perhaps you wouldn't have returned.

9 A. Yes, that's what I said. And I was referring to that period, and

10 I stand by what I said. I know what the situation was.

11 Q. Did you think that you might have been arrested or detained at

12 that time?

13 A. Well, I don't know. All I can say is that I doubt that I would

14 have returned had I left. But as to what would have happened to me, I

15 don't know. I'm again referring to that period in time.

16 Q. When an agreement was reached about an exchange of information

17 between the courts, the prosecutor's offices and the competent organs, the

18 prosecutor's office was able to process cases far more efficiently because

19 all the evidence and relevant facts were at his disposal. Is that

20 correct?

21 A. That's correct. It wasn't an exchange of information; it was an

22 exchange of documents. Prosecution documents and court documents. But

23 the documents that we received which had to do with war crimes, we would

24 supplement them. I could provide you with an example; when I say that we

25 supplemented this evidence and asking for further clarifications, we even

Page 3913

1 interviewed the same witnesses who had been interviewed by HVO

2 representatives.

3 Q. One of the cases that you mentioned a while ago and after

4 agreement had been reached on carrying out a case, it concerned the music

5 school. It was a request for investigating Isic Jasmin, a person whose

6 name has been mentioned quite frequently here. It also concerned certain

7 other individuals. And you personally submitted a request for carrying

8 out an investigation to the competent court in Zenica. Is that correct?

9 A. Yes, among those 55 cases, 55 individuals I have mentioned today

10 whom we had brought from the district military court in Travnik, this

11 trial provided evidence and Isic was categorised under A and the two

12 Osmanovic brothers and someone called Karamuja Vehid. I didn't instigate

13 any proceedings with regard to this individual, though I can clarify why.

14 MR. IBRISIMOVIC: [Interpretation] Could the witness please be

15 shown document from the cantonal prosecutor's office in Zenica that he

16 himself compiled. It's a request for conducting an investigation into

17 these persons, and the period is 1993. And it also concerns a war crime

18 against the civilian population and prisoners. We have a sufficient

19 number of copies for everyone in the courtroom, and we have informed the

20 Prosecution of this document before the hearing today.

21 Q. Mr. Kapetanovic, did you draft this document, the request for

22 investigation?

23 A. The date is 5 November 2001. I drafted it myself, and I'm in

24 charge of this case.

25 MR. IBRISIMOVIC: [Interpretation] The witness has recognised the

Page 3914

1 document. He drafted it himself. The Defence believes that this document

2 is very relevant for this procedure and tenders this document into

3 evidence as a Defence exhibit.

4 JUDGE ANTONETTI: [Interpretation] You may ask your question to the

5 witness based on this document.

6 MR. IBRISIMOVIC: [Interpretation]

7 Q. Having filed this request for investigation to the competent

8 court, the investigating judge of the cantonal court in Zenica issued a

9 decision on investigation to be carried out. The investigation was

10 carried out in order to investigate war crimes against the civilian

11 population. Is that correct?

12 A. Yes, that is correct. But an addition is in order if this is

13 allowed. On the 1st of August 2003, a new Law on Criminal Procedure of

14 the Republic of Bosnia-Herzegovina came into effect, and this

15 investigation was returned to the cantonal prosecutor's office in Zenica,

16 and this investigation is now run by this prosecutor's office. As far as

17 the brother Osmanovic and Isic, this is continued, and witnesses are being

18 heard as mentioned in the preamble of this request for investigation.

19 Dragan Janjic has been heard already, and he denied whatever he had

20 already said to members of the HVO. Amongst other things, he says that

21 this statement is not his, that the signature was not his. So we had to

22 verify all these checks. We conducted an interview, and he said that he

23 knew Karamuja, but that he had never touched him. That is exactly what he

24 said.

25 Q. Let me interrupt you, sir. With regard to other individuals which

Page 3915

1 are indicated in the request for investigation, what is happening with the

2 investigation?

3 A. The investigation is underway in the cantonal court in Zenica.

4 MR. IBRISIMOVIC: [Interpretation] Can the usher please now show

5 another document to the witness. This is the decision on conducting the

6 investigation pursuant to the request that was filed.

7 JUDGE ANTONETTI: [Interpretation] Very well, then. First, we're

8 going to render a decision on this document. This document was drafted by

9 the prosecutor's office in Zenica and referred to the investigating judge.

10 The request was for an investigation to be carried out with regard to the

11 events that involved military policemen of the BiH Army. The period is

12 between 19 April 1993 and the 5th of September of the same year. The

13 witness has recognised the document. However, he has told us that after

14 the amendments to the Law on Criminal Procedure, this investigation, as

15 far as we understood the witness, was referred back to the prosecutor's

16 office so the investigating judge was no longer in charge of this after

17 the amendments to the Law on Criminal Procedure which took place on the

18 5th of November 2003. What can the Prosecutor tell us about the

19 admissibility of this document into evidence?

20 MR. MUNDIS: Mr. President, the Prosecution has no objection to

21 this document being admitted into evidence. However, we would

22 respectfully request that it be put under seal in light of the Chamber's

23 ruling at the beginning of this session. There is reference in there to

24 matters which were the subject of the Trial Chamber's ruling. But we have

25 no objection to its admissibility. We will simply ask that it be admitted

Page 3916

1 under seal.

2 JUDGE ANTONETTI: [Interpretation] Can you please tell us what

3 facts should be under seal? You're saying that this document is linked

4 with what has been said previously. We are going to go into private

5 session first. Madam Registrar, can you please make sure we are in

6 private session.

7 [Private session]

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Page 3926

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10 [Open session]

11 THE REGISTRAR: We are in open session, Your Honours.

12 MR. IBRISIMOVIC: [Interpretation]

13 Q. Mr. Kapetanovic, yesterday in the course of the cross-examination,

14 you mentioned reports that you submitted to the republican public

15 prosecutor's office and to the civilian organs of power in 1993 and 1994.

16 These reports concerned the work of the prosecutor's office. Is that

17 correct?

18 A. Yes, I discussed this subject yesterday, and I stand by everything

19 I said.

20 Q. In order to clarify matters, I don't think it entered the

21 transcript when you mentioned the reports that had to be submitted on

22 behalf of the municipal prosecutor's offices in Travnik, Bugojno, and

23 Zavidovici. You said that because it was difficult to establish contact,

24 you couldn't obtain such reports.

25 A. That's probably the case.

Page 3927

1 Q. Were these simple communication problems or was it because of the

2 total blockade and the impossibility of gaining access to reports from

3 these prosecutors offices?

4 A. Could you tell me the date of the report?

5 Q. 25 February 1994.

6 A. That's quite possible, that that was the reason.

7 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. Kapetanovic. We

8 have no further questions for this witness. Thank you very much.

9 JUDGE ANTONETTI: [Interpretation] Thank you.

10 The Trial Chamber has a few minor questions for you, Witness.

11 Questioned by the Court:

12 JUDGE ANTONETTI: [Interpretation] In the report that you forwarded

13 to your superior that was presented yesterday, mention was made of the

14 fact that a state of war was declared and you mentioned the Official

15 Gazette in your report, and the number 7/92 was mentioned. Either that

16 was July 1992 or it's number 7 in 1992. The declaration of a state of

17 war, did this involve amendments in your texts as far as applicable law in

18 a state of peace is concerned? Was the penal procedure changed as a

19 result of the declaration of a state of war?

20 A. When a state of war is declared, everything is changed.

21 Everything changed physically and in legal terms. There was confusion.

22 People were mobilised, and then a number of decrees were issued. I can't

23 remember which decrees were adopted at the moment. But in legal terms,

24 there were very significant changes.

25 JUDGE ANTONETTI: [Interpretation] Very well. And the date of the

Page 3928

1 declaration of the state of war, can you remember it, or are you not able

2 to remember it?

3 A. I can't remember the date.

4 JUDGE ANTONETTI: [Interpretation] Very well. You said that there

5 were two military courts, one of which was in Zenica. Where was the

6 actual geographical location of this military court?

7 A. The cantonal, that is to say, the high court was located where it

8 is located to this very day. As far as the military court is concerned,

9 it was located about 200 metres as the crow flies from that court. It was

10 located in the residential premises of a company that moved out. Those

11 premises were empty. And when that military court was established, they

12 moved into those facilities, both the military court and the

13 district -- both the military court and the military prosecutor's office.

14 JUDGE ANTONETTI: [Interpretation] Thank you. In response to a

15 question, you said that there were two military courts. There was the

16 court in Zenica and there was another one in Travnik that you mentioned.

17 The establishment of these military courts referred to in the Official

18 Gazette of the army, the gazette also mentioned the establishment of the

19 court in Zenica but not the one in Travnik. Is this perhaps a mistake you

20 have made, or can you confirm that there was a military court in Travnik?

21 In Article 5 of the text signed by Mr. Izetbegovic, it states that the

22 military districts of the courts are in Banja Luka, Bihac, Mostar,

23 Sarajevo, Tuzla, and Zenica. But Travnik isn't mentioned. What could you

24 tell the Trial Chamber in order to clarify this?

25 A. I don't have reliable information. Most probably the district

Page 3929

1 military court in Travnik was established somewhat later.

2 JUDGE ANTONETTI: [Interpretation] Very well, then.

3 Another question for you, sir, in your capacity as a prosecutor,

4 you were authorised to order investigations to be carried out. Who would

5 be issued with that order? I'm not talking about the investigative

6 judges; I'm talking about investigators themselves. Who did investigators

7 belong to? Which body did those persons who conducted the investigations

8 belong to?

9 A. During that period of time, up to the 1st of August 2003, based on

10 the request of the conducting investigation, the investigations were

11 conducted by the investigative judge of the cantonal court.

12 JUDGE ANTONETTI: [Interpretation] But when you were the one to

13 issue an investigation to be carried out, and if you didn't issue that

14 order to the investigative judge, who was it who went to the site? It was

15 not the judge or yourself who went there; this was probably police

16 officers. Who were they?

17 A. They were authorised personnel of the public security centre,

18 currently the MUP of the ZB canton who were charged with certain

19 investigative operations before the official request for investigation was

20 filed. They were sent to the site in order to verify information.

21 JUDGE ANTONETTI: [Interpretation] So it was the public security

22 centre in the municipality?

23 A. No, in the district.

24 JUDGE ANTONETTI: [Interpretation] Very well, then.

25 In your capacity as a prosecutor, did you have any contacts with

Page 3930

1 other bodies of authority, civilian or military, or were you in your

2 office all the time and you didn't see anybody?

3 A. There was no way for me not to see people. I was in contact,

4 because of the food, with the president of the municipality. It was a

5 matter of survival. I had to ask for a paper, for carbon paper. We had

6 old typewriters. There was no electricity. So most of my contacts were

7 with the president of the municipality to provide for the survival of the

8 prosecution and the survival of the court, because the court cannot work

9 out the prosecutor's office.

10 JUDGE ANTONETTI: [Interpretation] And now just to clarify another

11 thing, did you have any contact with the military authorities at the time?

12 A. As for the military authorities, I virtually had no contacts with

13 them, no contacts at all. Yesterday, I testified that the Security

14 Services Centre and the authorised personnel of that centre cooperated

15 with the military; to be more specific, with the military police.

16 Whenever necessary through the Security Services Centre, we cooperated

17 with the military police. But it was via them, never directly, or at

18 least I can't remember such cooperation.

19 JUDGE ANTONETTI: [Interpretation] I am turning to the Prosecution

20 to see whether they have any re-examination of this witness.

21 MR. MUNDIS: Mr. President, we have just a couple of questions.

22 And they relate to Exhibit DH56. And I would ask that that be document be

23 returned to the witness, please.

24 THE REGISTRAR: Your Honours, this exhibit is marked for

25 identification.

Page 3931

1 Re-examined by Mr. Mundis:

2 Q. Witness, if you could please turn to page 4 of that document and

3 look again at the table listing the various statistics as set forth in the

4 three columns, yesterday, the Presiding Judge asked you about the numbers

5 on the far left. That is, the numbers 1 through 18. It's not clear from

6 the transcript what those numbers refer to. Do you have any recollection

7 what the numbers 1 through 18 on the left margin of DH56 for

8 identification refers to?

9 A. I can just interpret what I see in front of me. 212, 212 adults;

10 43 minors, and so on and so forth.

11 Q. Perhaps, Witness, my question isn't clear. I'm looking at the

12 numbers on the far left margin that are numbered 1 through 18. What do

13 the numbers 1 through 18 refer to?

14 A. It's a certain order of data, an order of information.

15 Q. How is the information ordered? That's my question. What data or

16 what order of information does this -- these numbers 1 through 18 refer

17 to?

18 A. Whatever has been entered was entered by the person who entered

19 the information. The statistical data that were obtained were put in a

20 systematic order in this particular way.

21 JUDGE ANTONETTI: [Interpretation] Witness, I have already put that

22 question to you, and you didn't answer me. The Prosecution is putting

23 this same question to you again. You're a professional. You must have an

24 explanation with regard to the sequence and the classification. Do these

25 numbers in a certain way correspond to certain crimes that were committed?

Page 3932

1 You should be in the position to know the answer to this question.

2 Yesterday, you didn't answer this question, and the Prosecution is now in

3 a position to ask this question again. Maybe you don't know what these

4 numbers represent. Maybe the Defence will provide us with an explanation.

5 Maybe they can assist us in that respect because the Defence used to be a

6 prosecutor at one time.

7 MS. RESIDOVIC: [Interpretation] Your Honours, I would like to draw

8 your attention to page 3, the last paragraph in which it says that the

9 data was given according to the methodology requested by the republican

10 prosecutor's office. I do not want to testify before this Trial Chamber,

11 but given the experience that we have had, every year a higher

12 prosecutor's office requests certain information from a lower prosecutor's

13 office. And these data can be found in the records, and that is the

14 number of criminal reports filed, the number of perpetrators, the number

15 of requests for investigations, the number of persons who were charged,

16 that is, indictments brought, the number of persons who were charged, and

17 the number of suspects. I am not saying that all that I have just said

18 corresponds entirely with the table we have in front of you, however, the

19 Defence may try and find the methodology which was in place in 1993. We

20 can provide it to the Trial Chamber so as to give a proper explanation to

21 all of these figures. Thank you very much.

22 JUDGE ANTONETTI: [Interpretation] Thank you. But maybe the

23 witness could provide us with an answer.

24 Sir, you must have sent such reports a number of times, so you

25 must know what this is all about. Can you please answer the question.

Page 3933

1 THE WITNESS: [Interpretation] I believe that the explanation that

2 we have heard is good enough, and there is nothing else that I could add

3 to the explanation. This is just an administrative matter, and I was not

4 very familiar with that. It was Mr. Dzemaludin Mutapcic who was involved

5 in that, and I'm really not in a position to provide you with any

6 additional explanation.

7 MR. MUNDIS: Thank you, Mr. Kapetanovic.

8 The Prosecution has no further questions. And Mr. President, we

9 would have no objection to DH56 being admitted into evidence.

10 JUDGE ANTONETTI: [Interpretation] This document was on stand by,

11 still is on stand by. The decision is still pending. This document is

12 now going to be given a number, DH56 for B/C/S version, and DH56/E for the

13 English version. Mr. Kapetanovic, the Trial Chamber would like to thank

14 you for coming to The Hague and answering the questions put to you both by

15 the Prosecution and the Defence, as well as the questions put to you by

16 the Judges. Thank you for staying here for two days. We wish you a happy

17 return home.

18 THE WITNESS: [Interpretation] Thank you. I am leaving this place

19 with wonderful impressions.

20 [The witness withdrew]

21 JUDGE ANTONETTI: [Interpretation] We have a new witness who should

22 testify in keeping with Rule 92 bis. The Trial Chamber understands that

23 the Prosecution is not going to examine the witness, that the statement of

24 this witness will be introduced into the file. The witness will be

25 cross-examined. However, may I ask the usher to go and bring the witness

Page 3934

1 into the courtroom.

2 Can we hear from the Prosecution whether there is an application

3 for protective measures, Mr. Withopf.

4 MR. WITHOPF: Mr. President, Your Honours, as Defence has already

5 been informed about, we will make an oral application for protective

6 measures for the next witness. And for that purpose, I would like to go

7 into private session, please.

8 [Private session]

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3 [Open session]

4 JUDGE ANTONETTI: [Interpretation] And we need to raise the blinds.

5 THE REGISTRAR: We're in open session, Your Honour.

6 JUDGE ANTONETTI: [Interpretation] We are now in open session. The

7 Trial Chamber has been informed that the Prosecution intends to have

8 witnesses testifying by having recourse to the videoconference system. If

9 that is the case, the Defence should inform me of any comments it has

10 about this matter as soon as possible so that the Trial Chamber can render

11 a decision on Friday at the latest. At this point in time, could the

12 Prosecution tell us how many witnesses will be testifying via videolink,

13 and could they inform us of the reasons for requesting that the witnesses

14 testify in this manner.

15 MR. WITHOPF: Mr. President, Your Honours, for that purpose, can

16 we please go into private session.

17 JUDGE ANTONETTI: [Interpretation] Very well. We'll go back into

18 private session.

19 [Private session]

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14 --- Whereupon the hearing adjourned at 1.56 p.m.,

15 to be reconvened on Thursday, the 4th day of March,

16 2004, at 9.00 a.m.

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