Kapic Appeal Sets Precedent

For the first time since the establishment of the War Crimes Chamber of the State Court, an appeal will be filed with the third instance trial chamber.

This possibility was introduced through changes to the Law on Criminal Procedure which were enacted in August last year. A third-instance verdict appeal is possible only where an indictee has been acquitted of all charges by the first-instance verdict and found guilty by a second-instance verdict.

“This is the first and only case in which an individual was acquitted of all charges in the first-instance verdict and sentenced by the second-instance verdict. In this case he was sentenced to 17 years. Of course we will file an appeal,” Senad Kreho, Kapic’s Defence attorney, announced.

Kapic, a former member of the Third Corps with the Army of Bosnia and Herzegovina, was arrested in September 2007, charged with the murder of four prisoners-of-war in the Sanski Most area during 1995. His trial began on January 8 last year. In April a first-instance verdict was pronounced, acquitting him of all charges.

The Appellate Chamber of the Court of Bosnia and Herzegovina overturned the first-instance verdict and a retrial was conducted. At the end of the retrial Kapic was found guilty and sentenced to 17 years.

The Public Relations Office of the State Court says that the changes to the Law, introducing the possibility of filing an appeal with a third-instance chamber, were made at the initiative of a working group with the State Ministry of Justice.

“A third-instance chamber decides on second-instance verdict appeals. The Chamber consist of three judges of the Appellate Chamber,” the PR Office explained.

The Law allows appeals to be filed “if the Appellate Chamber revises a first-instance verdict acquitting the indictee of all charges and finds him guilty,” or “if the Chamber, acting on an appeal against an acquittal renders a decision finding the indictee guilty.”

According to the new provisions, no trials will be conducted before the third-instance chamber, but the chamber can overturn the second-instance verdict and acquit the indictee of all charges.

The Defence of Suad Kapic said the fact that the third-instance proceedings will be conducted in the same building as the second-instance trial and the judges will come from the Appellate Chamber of the State Court was “absurd”.

“The problem is that the new chamber will consist of judges from the same section. They have offices in the same building. They will find it embarrassing to overturn a verdict handed down by their colleagues. This now activates the issue of the need for a Supreme Court of Bosnia and Herzegovina,” said Kreho.

There are two state-level courts – the Constitutional Court of Bosnia and Herzegovina and the Court of Bosnia and Herzegovina. A supreme court exists only at the entity levels – one in the Federation of Bosnia and Herzegovina and the other in Republika Srpska. The Constitutional Court of Bosnia and Herzegovina is competent to handle appellate procedures pertaining to constitutional issues from the entity courts, but not in relation to criminal cases.