On 6 March 2007, Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia (ICTY) refused Miroslav Šeparović audience before the Trial Chamber. The Chamber determined that he is no longer eligible to represent Mladen Markač pursuant to Rule 44 of the Rules of Procedure and Evidence. Markač was ordered to immediately engage new counsel to represent him.

Markač is charged together with Ante Gotovina and Ivan Čermak with criminal responsibility ‘for the criminal acts and/or omissions of their subordinates’ which they ‘knowingly failed to prevent or punish’. During the period in which these crimes were allegedly committed, Šeparović held the position of Minister of Justice of Croatia. The Appeals Chamber of the ICTY found it relevant for the trial to determine whether the Croatian Ministry of Justice or the Ministry of Defence was responsible for the military court system during the timeframe set out in the indictment.

Šeparović stated that he would not be raising a defence which would involve shifting responsibility from the Ministry of Defence to the Ministry of Justice and that Markač himself had signed a statement of consent for Šeparović to continue representing him. The Trial Chamber noted that all accused could raise this defence strategy and that Šeparović did not deny that he was in a prominent governmental position with personal knowledge about which ministry had power over the military courts. The Trial Chamber considered that these factors and his position would make it probable that Šeparović would be called as a witness and that his continued representation of Markač would place him in a situation of having his professional judgement adversely affected by divided loyalties. In addition to that, his representation of Markač would foreclose a potential defence which might reasonably be raised at trial. The Trial Chamber also considered Markač’s consent, but it was not persuaded that it would remedy the conflict of interest. It found that the continuing conflict of interest would prejudice the administration of justice and the integrity of the trial.

On 12 March 2007, Šeparović requested certification to file an interlocutory appeal.