Appearing as necessary witness
|Decision on Conflict of Interest (Markač) - 04.05.2007||
GOTOVINA et al.
17. […] After the question of whether the Appellant would in fact be a “necessary witness” was remitted to the Trial Chamber, pursuant to the Clarification Decision, the Trial Chamber found that it “reasonably foresees the likelihood that the Appellant will be called as a witness in this case because of his position as former Minister of Justice at the time of alleged crimes”.
18. The Appeals Chamber finds no error in this conclusion. Article 26 of the Code of Professional Conduct only envisages that “Counsel shall not act as an advocate in a proceeding in which counsel is likely to be a necessary witness”. The Appeals Chamber notes that because their trials have been joined, Gotovina, Cermak and Markač are in the same proceeding. Although the Prosecution did not envisage calling the Appellant as a witness, and Markač and Čermak appear to hold the view that their respective defence strategies will not involve calling the Appellant as a witness, Gotovina has not ruled out the possibility of calling him as a witness. Further, the Trial Chamber has not ruled out at this stage that it might choose to call him as a witness.
19. In addition, should the Appellant be called to testify, the Trial Chamber is not precluded from using his evidence in support of or against Čermak or Markač. The Appeals Chamber recalls that the Trial Chamber found that the cases of the three accused are inherently connected because they took place in the same geographic area, in the same time period and in the course of the same military operation, and that they were allegedly committed pursuant to the same joint criminal enterprise of which all three accused are alleged to be members. On the basis of this factual nexus some of the evidence, including that of the Appellant, may be the same.
 [Second] Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-PT, Decision on Finding of Misconduct of Attorney Miroslav [eparović, 6 March 2007], p. 8 (emphasis added).
 Emphasis in original.
 First Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-PT, Decision on Conflict of Interest of Attorney Miroslav Šeparović, 27 February 2007], p. 7.
 See Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of the Accused, 27 January 2006, paras 14 and 15.
 Appeals Chamber Decision on Joinder [Prosecutor v. Ante Gotovina, Case No. IT-01-45-AR73.1, Prosecutor v. Ivan Čermak and Mladen Markač, Case Nos. IT-03-73-AR73.1 and IT-03-73-AR73.2, Decision on Interlocutory Appeal Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006], para. 20.
|Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal.|