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”.[1]

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”.[2] 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.[3]

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.[4] 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.[5] On the basis of this factual nexus some of the evidence, including that of the Appellant, may be the same.