Opposing the ICTY's decision of July to join the case of General Ante Gotovina with that of Generals Mladen Markac and Ivan Cermak, defence counsel for Gotovina cited possible conflict of interest on the part of attorney Miroslav Separovic. Gotovina's defence team said that they could call Separovic to take the witness stand considering the fact that during the time relevant to the indictment against Gotovina, Separovic was Croatia's Justice Minister.
On October 25 this year the Appeals Chamber granted that there was conflict of interest in Separovic's case, but that it existed regardless of whether the Gotovina case and the Markac and Cermak case were joined or not. The Appeals Chamber therefore called on Separovic to withdraw from the case unless he proved that his withdrawal could cause significant problems to Markac's defence.
Under the rules of the Hague tribunal, a person who may appear in a case as a necessary witness cannot be part of the defence team in the same case.
Markac's defence team therefore submitted a motion on November 7, containing a written statement by attorney Separovic saying that the Appeals Chamber had been misled by Gotovina's attorneys' claims that he was a necessary witness, and that there were other witnesses who could testify about the same questions. Separovic added that he had not conducted talks with the former Croatian President Franjo Tudjman or any other participant in the alleged joint criminal enterprise on the functioning of the Croatian judiciary or military courts.
The motion also contains a statement by General Markac who says that Separovic's withdrawal would cause irreparable damage to his defence because Separovic had been working on his defence since 2002 and enjoyed his confidence.
Markac said that his attorney Goran Mikulicic was dealing with procedural matters, while Separovic was establishing facts, collecting documents and interviewing witnesses and that in case he withdrew, Mikulicic would withdraw as well.
Responding to the motion, defence counsel for General Gotovina requested on November 22 that the parties to the proceedings be allowed to investigate the authenticity of Separovic's claim that there were other witnesses apart from him who could testify about the same matters, stating that the request by the Appeals Chamber that Separovic should withdraw was premature and should be withdrawn.
In making the decision, the Appeals Chamber bypassed the trial chamber in charge of the case, which should have dealt with this matter first, Gotovina's attorney Luka Misetic said. He said that the parties to the proceedings were yet to establish if the facts about which Separovic should testify were beyond dispute, in which case conflict of interest on the part of the attorney would be automatically ruled out.
With regard to claims by Markac's defence team, cited by Vecernji List daily, that Gotovina's defence team had decided not to call Separovic as a witness, Misetic said that the daily misquoted Markac's defence team.
Misetic also wrote in the motion that Gotovina believed that the tribunal should protect General Markac's right to choose his own defence and that excluding Separovic from his defence would do injustice to Markac.