Tribunal Criminal Tribunal for the Former Yugoslavia

Page 151

 1                           Thursday, 19 January 2012

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 4.33 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone.  Madam Registrar, would

 7     you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honour.  This is case

 9     IT-09-92-PT, the Prosecutor v. Ratko Mladic.

10             JUDGE ORIE:  Thank you very much.

11             Good afternoon to everyone in and around the courtroom.

12             Could I have the appearances.  Prosecution first.

13             MR. GROOME:  Good afternoon, Your Honour.  Representing the

14     Prosecution this afternoon I am Dermot Groome.  I am accompanied by

15     Peter McCloskey, Roeland Bos, and Janet Stewart.

16             JUDGE ORIE:  Thank you Mr. Groome.  Could I have the appearances

17     for the Defence.

18             MR. LUKIC:  Good afternoon, Your Honour.  Branko Lukic and

19     Milos Saljic for Mr. Mladic.

20             JUDGE ORIE:  Thank you, Mr. Lukic.

21             Good afternoon to you as well, Mr. Mladic.

22             This, today, is the fifth Status Conference in this case, and as

23     with the previous Status Conferences, any guidance and decisions that

24     will be announced by me have been deliberated and adopted by the Chamber

25     as a whole.

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 1             The purpose of this and of other Status Conferences is to monitor

 2     the progress made with regard to the pre-trial work and preparation for

 3     trial, and like in earlier Status Conferences, this one has been preceded

 4     by a Rule 65 ter meeting, which was held earlier this week on Monday, the

 5     16th of January of 2012, and we then discussed certain pre-trial matters

 6     in more detail than this Status Conference allows.

 7             I would like to start with the pre-trial planning.

 8             On the 2nd of December of last year, the Trial Chamber filed its

 9     Rule 73 bis (D) decision, and in the Chamber's decision, the Prosecution

10     was ordered to file a new amended indictment and a new victims list.  At

11     the last Status Conference on the 8th of December, the Prosecution

12     requested that it be permitted to incorporate its previously filed

13     victims list related to Srebrenica rather than to refile the lists in

14     their entirety.  On the 14th of December, in an informal communication,

15     the Prosecution's request was granted, and that decision is hereby put on

16     the record.  On the 16th of December, the Prosecution filed the now

17     operative Fourth Amended Indictment and a List of Victims.

18             The Chamber had previously set the Defence deadline for any

19     Rule 67(B) notice of alibi and special defence to the

20     16th of January, 2012.  On the 12th of January, the Defence filed a

21     motion seeking a 30-day extension of the filing deadline, and on the 13th

22     of January, the Prosecution filed its response.  At the 16th of January

23     Rule 65 ter meeting, the matter was further discussed, and the Chamber

24     granted the Defence a three-day extension pending a final decision on the

25     motion.  The three days expire today.

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 1             The Trial Chamber now grants the 30-day extension up to and

 2     through the 16th of February as far as it relates to the names and

 3     addresses of witnesses and any evidence upon which the Defence is

 4     planning on relying for an alibi defence.  The Chamber denies the

 5     extension request as far as it relates to providing notice of the

 6     location of Mr. Mladic during the alibi defence period, and the Chamber

 7     instructs the Defence to provide its Rule 67(B) notice, limited to the

 8     date and location information, to provide that notice by Monday, the

 9     23rd of January.

10             Mr. Lukic, any questions in relation to what I just said?  So you

11     can continue to further explore evidence, but we would already like you

12     to inform in your notice about the time and the place.

13             MR. LUKIC:  Thank you, Your Honour.  We are satisfied with those

14     rulings.

15             JUDGE ORIE:  Then I move on.

16             Pursuant to Rule 67(B)(ii), the Chamber also sets the deadline

17     now for the Prosecution to notify the Defence of the names of witnesses

18     it intends to call in rebuttal of the alibi defence and that deadline is

19     set at the 16th of March, 2012.  So you've got one month after the notice

20     itself.

21             Any questions in relation to that?

22             MR. GROOME:  Not at this time, Your Honour.

23             JUDGE ORIE:  Then next, the Chamber reminds the parties of the

24     deadlines which were set at the 8th of December, 2011, Status Conference,

25     namely that the Prosecution's pre-trial brief and Rule 65 ter filings are

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 1     due on the 10th of February, 2012.  10th of February is also the deadline

 2     for the Prosecution to provide the Defence with copies of witness

 3     statements pursuant to Rule 66(A)(ii).  And further, the Prosecution's

 4     first Rule 92 bis and Rule 92 quater motions are due on the

 5     17th of February.  The Prosecution is, of course, welcome to file these

 6     Rule 92 motions in advance of this deadline.  That goes without saying.

 7     The Defence's pre-trial brief is due on the 2nd of March, 2012.

 8             The Prosecution has filed several motions and submitted informal

 9     requests related to these deadlines, and these were discussed at the

10     Rule 65 ter meeting, and the Chamber now issues the following decisions:

11             On the 13th of January, the Prosecution filed a motion to exceed

12     the word limit in its pre-trial brief.  At the Rule 65 ter meeting, the

13     Defence responded that they had no objections to the motion.  The Chamber

14     hereby grants the motion and sets the word limit at 45.000 words.  And I

15     immediately add that we here exceptionally grant an extension of the --

16     an extension of the word limit.  The parties should not expect the

17     Chamber to do that on a regular basis.  It is mainly because of the

18     special character of the pre-trial brief which exceptionally has led the

19     Chamber to grant this request.

20             Also on the 13th of January, the Prosecution sent an informal

21     communication to the Chamber related to two issues.  Let's start with the

22     first issue.

23             The Prosecution raised concerns about the effect on its

24     Rule 65 ter witness lists and summaries of certain delayed disclosure

25     protective measures for witnesses which were granted in other trials and

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 1     apply mutatis mutandis in these proceedings.  The Chamber appreciates the

 2     Prosecution's desire to present its Rule 65 ter filings in a manner that

 3     is useful and comprehensible to the Defence and the Chamber, while fully

 4     complying with the existing protective measures put in place to protect

 5     the security of witness -- witnesses.  So where I wasn't clear,

 6     comprehensible to the Defence and to the Chamber, still complying with

 7     the existing protective measures.

 8             For the Prosecution's 10th of February Rule 65 ter filings, the

 9     Chamber instructs the Prosecution to provide the Chamber with the

10     complete lists and to provide the Defence as much information as possible

11     within the limitations of the protective measures in place, and that

12     should include providing the Defence with pseudonyms and, where

13     necessary, redacted witness summaries for those affected witnesses.  And

14     the Chamber leaves it to the Prosecution whether this should be done in

15     one filing with an ex parte annex or by two separate filings.

16             Mr. Groome, the fact that you're on your feet suggests that you

17     would like to address me.

18             MR. GROOME:  Yes, Your Honour.  Earlier this week during the

19     65 ter meeting, you asked me if I could provide the number of witnesses

20     on our anticipated witness list that are the subject of existing

21     protective measures which include the measure of delayed disclosure.  I

22     told you that I was unable but ventured a guess and undertook to provide

23     that information today.  Although we have not completed our verification

24     process, we believe with some confidence that there are 13 witnesses who

25     have delayed disclosure orders and that eight of these orders delayed

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 1     disclosure until 30 days before trial.

 2             And, Your Honour, if I could just simply put on the record that

 3     Your Honour has mentioned an informal communication from the Prosecution

 4     to Chambers.  Just so that the record is clear that all communications of

 5     that nature, including this one, have been copied to the Defence.  They

 6     have been no communications that have not been copied to the Defence.

 7             JUDGE ORIE:  Yes.  When I refer to them, the Chamber itself also

 8     always verifies whether, as in accordance with our instructions, whether

 9     the Defence is copied on any such communication.  Informality should

10     never lead to one of the parties being unaware of any exchange between

11     the Chamber and the other party.

12             The Chamber, and I continue, also encourages the Prosecution to

13     continue reviewing these delayed disclosure orders with an eye to

14     identifying protective measures and whether they could be appropriately

15     be rescinded.  We have now an impression of the quantity, but to what

16     extent they are still needed is a matter that should be constantly

17     reviewed.

18             Then I move to the second issue raised in this informal

19     communication.

20             The Prosecution raised concerns about complying in its

21     Rule 65 ter filings with the Chamber's guidance of the

22     10th of November, 2011, on the format of Rule 92 bis and Rule 92 ter

23     witness statements.

24             The Chamber accepts the Prosecution's proposal to not include

25     those former statements it does not intend to tender at trial to its

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 1     10th of February Rule 65 ter filing.  Those future statements, formatted

 2     in compliance with the guidance, which it does intend to tender, should

 3     be given to the Defence as soon as they are completed.  In this respect,

 4     the Chamber reminds the parties of the Chamber's guidance of the

 5     10th of November, 2011, that Rule 92 ter motions should be filed as soon

 6     as possible and no less than 30 days before the witness's anticipated

 7     start of testimony.  Further, any request for additions to the

 8     Rule 65 ter exhibit list could also be made in the 92 bis or the 92 ter

 9     motions.

10             Any questions in relation to what I just raised with you?  No

11     questions, no comments.  We'll then move on.

12             At the 16th of January Rule 65 ter meeting, the parties discussed

13     the possibility of scheduling an additional Status Conference in March.

14     The Chamber considers that an additional Status Conference before the

15     expected start of the trial would benefit the parties and the Chamber,

16     and, therefore, the Chamber informs the parties that it will hold an

17     additional Status Conference on the 7th of March, 2012.  The Chamber will

18     also issue a new Scheduling Order shortly containing this and other

19     upcoming scheduling dates.

20             Scheduling issues related to the start of trial were also

21     discussed at the Rule 65 ter meeting.  For example, the Defence has asked

22     for the Chamber to consider sitting in morning session only, and this is

23     just one example.  The Chamber has not yet reached a definitive decision

24     on how it will approach the scheduling of sitting weeks, but I inform the

25     parties that the issues they raised are part of the Chamber's ongoing

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 1     discussion on this matter.  This will all be a part of the upcoming

 2     Scheduling Order.

 3             Now, if the parties would have any comments or any further

 4     questions in relation to scheduling, this would be the right moment to

 5     put them on the record, to make any submissions in relation to future

 6     scheduling.

 7             Does any of the parties -- yes, Mr. Lukic.

 8             MR. LUKIC:  Yes, Your Honour.  Thank you for this opportunity,

 9     and we would basically state with our previous position that for the

10     Defence to have any kind of meaningful preparation for this case, any

11     start of the trial before the end of October this year would be almost

12     impossible to fulfil our obligations and to have preparations as it is

13     envisaged by the Rules.  So we hope that Your Honours will assess our

14     position and assess the amount of the documents and witness statements

15     and transcripts we received from the Prosecution and the amount of the

16     documents we have to collect, that any start before October will be

17     unjust for the Defence and for Mr. Mladic.

18             JUDGE ORIE:  Mr. Lukic, this is a rather general reference to

19     materials which were disclosed, and you say, well, not before the end of

20     October.  Could you be a bit more -- be a bit more specific on -- on what

21     specifically makes you conclude that the end of October would be the date

22     before which it is not possible to start?  Of course, the Chamber will

23     have to consider a lot of elements such as a matter which was discussed,

24     how many days we would sit, whether we would have an interrupted

25     schedule, what are the present schedules of the Judges who are Judges in

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 1     this Trial Chamber, et cetera.  We are -- just a general statement, end

 2     of October, that would be it, is not very precise and not very specific.

 3     If you could be any more specific, that would assist the Chamber in also

 4     specifically considering any concerns you may have.

 5             MR. LUKIC:  Yes, Your Honour.  Thank you.  As we all know, in

 6     this case we have actually three and a half cases.  We have Bosnian

 7     municipalities, we have Sarajevo, we have Srebrenica, and we have UN

 8     staff detained.  So we consider that as a half a case, but all other

 9     three cases were full cases tried before this Tribunal, and the

10     preparation granted for those cases were at least as if this Defence team

11     would get until the end of October.

12             We are still receiving documents from the Prosecution.  I just

13     got one batch of the documents today.  We -- as you know, we co-operate

14     with the Prosecution fully.  We have a friendly atmosphere in this

15     exchange.  They help as much as they can, because they are overburdened

16     by their work as well.  And if you want me, I can tell you the amount of

17     pages, but you probably know yourself that it is hundreds of thousands of

18     pages.  If we want to go and read at least the basic documents, we will

19     need to go and read them until the end of October, and I don't count all

20     the documents and all the pages but only the most important and the most

21     basic documents and witness statements.  And there is more to come.

22             JUDGE ORIE:  Your answer at least makes clear, Mr. Lukic, that

23     you're also aware, and I think that's good to establish that, that it is

24     also a matter of prioritising, making selections what to do first, what

25     to do after that.  Of course we also have not yet decided on what pace

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 1     we'll start the case or whether it would be interrupted at certain

 2     intervals.  That all still has to be considered, but I fully appreciate

 3     and understand that if the pages disclosed goes into the hundreds of

 4     thousands and then even in the higher scale of that, that no one expects

 5     you, of course, to read them all by yourself and to read them all in

 6     full.  I mean, for the disclosure primarily serves not to keep away

 7     anything from you, and then, of course, it is primarily for the Defence,

 8     and I think that's what I understood you to say as well, to find the most

 9     important ones to start with, what you called the basic documents.

10             Is there any other matter you would like to bring to our

11     attention so that we could include it in our considerations for

12     scheduling purposes?

13             MR. LUKIC:  You are also aware, Your Honour, that even our team

14     is not fully staffed.  I don't have a co-counsel appointed, and we have

15     only to incorporate into our electronic system all the documents we got

16     from the Prosecution and to name them.  It will take longer than the end

17     of the -- of October.  And EDS system that is established, as you know,

18     does not have all the data.  We hope that the Prosecution will cure

19     that -- that part of their disclosure.  So there is --

20             JUDGE ORIE:  I'll specifically address that matter in a minute,

21     Mr. Lukic.  So you say to organise the materials in the electronic system

22     is one thing you would like to draw our attention to.  Any other matter?

23     I'm insisting on asking whether there's more because we are in an ongoing

24     process to -- to deliberate on scheduling and what you would raise today

25     might, therefore, be at risk to be lost, and that's the reason why I'm

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 1     asking whether there's anything else you'd like to bring to our attention

 2     and preferably as specific as possible.

 3             MR. LUKIC:  To be more specific, I should have opened the

 4     documents in front of me and go with in very technical details, and I

 5     don't think that this is proper time and place for that, but I have a

 6     meeting with the Prosecution tomorrow at around 2.00, and I will discuss

 7     with your staff, Your Honour, as well, the same issues.

 8             JUDGE ORIE:  Yes.  That's -- that was what was on my mind and

 9     which I will address.  And you say, well, whatever the results will be of

10     those discussions should also be considered in -- for purposes of

11     scheduling.

12             MR. LUKIC:  Can you repeat, please?

13             JUDGE ORIE:  That whatever will be the results of those

14     discussions or what will be raised during those discussions, of course to

15     the extent the Chamber is aware of it, but you may report on the results

16     or you may inform Chamber's staff.  We'll then put that on the record.

17     But that the content and the possible results of these discussions should

18     also be considered when the Chamber is considering scheduling issues.

19             Any other matter?

20             MR. LUKIC:  That is all for now, Your Honour.

21             JUDGE ORIE:  Thank you.

22             Mr. Groome, or Mr. McCloskey, any comments in this respect?

23             MR. GROOME:  Your Honour, with respect to the -- one of the

24     issues that Mr. Lukic has raised, and that is the amount of information

25     that is available in the case-specific EDS, technically we have overcome

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 1     all the obstacles to that, and Mr. Lukic now has available to him all of

 2     the information from the disclosure log except for batches 4 and 5.

 3     Before coming to court today, I had a meeting with Ms. Stewart, and we

 4     are -- will be applying more staff to -- to place better descriptions in

 5     batches 4 and 5 of the disclosure, and as soon as that is done, they will

 6     be linked, and then the access or the information Mr. Lukic has with

 7     respect to the case-specific EDS will be comparable to the general EDS.

 8     And 4 -- batches 4 and 5 relates, in part, to some of the material that

 9     was disclosed in the Karadzic case.

10             With respect to the start of trial, the Prosecution defers to the

11     Trial Chamber and is -- and trusts that the Chamber will start the trial

12     at a time that fully guarantees the accused's rights under Articles 20

13     and 21 of the Statute, and the Prosecution will endeavour to meet

14     whatever trial state that the Chamber selects.

15             I can forecast for the Chamber and for Mr. Lukic that once we

16     have completed our 65 ter filings, we will turn our attention to drafting

17     a number of submissions that will lay out in greater detail the order of

18     the Prosecution case, the order of witnesses, as well as the exhibits

19     that will be used with those witnesses, and it is our present intention

20     to give Mr. Lukic as much notice as possible as to the order of witnesses

21     and the exhibits that will be used, and in this way we hope that we can

22     appropriately facilitate his preparations for whenever the eventual start

23     of trial is.

24             JUDGE ORIE:  You said that you'll lay out in greater detail the

25     order of the Prosecution case.

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 1             Now, Mr. Lukic referred to three and a half case.  Have you made

 2     up your mind already as to which of the three and a half cases would go

 3     first, second, third?  If not, then of course we have to wait, but if you

 4     have made up your mind, that might assist Mr. Lukic as well in focusing

 5     his preparations.

 6             MR. GROOME:  Your Honour, the Prosecution sees it as one case.

 7     It's one accused and one case.  Mr. Lukic is referring to what I think

 8     are some historical aspects of the case in that it could be separated

 9     into these topics --

10             JUDGE ORIE:  I'm not asking any commitment to, but I take it

11     since you didn't ask for a clarification, you understood, more or less,

12     what Mr. Lukic was talking about when he referred to the municipalities,

13     to Sarajevo, to Srebrenica, to the -- to the NATO people.  I took it that

14     you understood what he referred to in general terms.

15             MR. GROOME:  Yes, Your Honour, but I just prefaced -- stated that

16     preface to say that many of the events in -- that occurred in Sarajevo

17     were occurring at the same time of events in municipalities.  It is our

18     general intention, at this stage, to present the case in a chronological

19     order and not be bound by artificial distinctions, but, again, we will be

20     presenting this in more detail in the submission where we will set out.

21             Now, having said that, many of the crimes in Sarajevo occur in

22     1993, 1994, and 1995, and most of the crimes in the municipalities are in

23     1992.  So even approaching the evidence in a chronological fashion, one

24     could say that there maybe some divisions, but I can't say at this

25     juncture that it will be our general intention to proceed

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 1     chronologically.

 2             JUDGE ORIE:  No, but these are your provisional thoughts on the

 3     matter, not binding yet, but perhaps Mr. Lukic at least good to read a

 4     bit of your professional mind.

 5             Then if there's nothing else to be said about scheduling, I move

 6     to the following item.

 7             Mr. Lukic, at the 65 ter meeting, the Prosecution informed you

 8     and the Chamber that -- of its proposal to utilise Rule 71 depositions

 9     for the more technical and administrative -- administrative aspects of

10     its case.  Have you had time to formulate any comment on this proposal,

11     and, if so, could you share you thoughts with us?

12             MR. LUKIC:  Yes, Your Honour.  Mr. Groome approached me before

13     this Status Conference and we discussed it shortly, but I have,

14     unfortunately, to tell you that I don't have formulated opinion on this

15     issue.  And as I told you on the 65 ter meeting, I'm not fully familiar

16     with the position procedure and I will have to discuss it with some of my

17     colleagues further, so I cannot give you the answer right now.

18             JUDGE ORIE:  Yes.  It's not commonly done.  It opens, perhaps,

19     some opportunities, and there may be reasons in favour and there may be

20     reasons against, perhaps also depending on what the subject matter is of

21     those.

22             I think it would be wisest for the Chamber to -- to give you a

23     bit of time to further think about it and to formulate your position and

24     perhaps to present it to the Chamber in response to any motions the

25     Prosecution may file in this respect.

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 1             MR. GROOME:  Your Honour, if it would assist Mr. Lukic and the

 2     Chamber in understanding this somewhat unconventional proposal to use

 3     Rule 71 for some aspects of the trial evidence, the Prosecution would be

 4     willing to place the proposal in the form of a written submission or a

 5     written motion for consideration.

 6             JUDGE ORIE:  Yes.  If -- if it could be part of your discussions

 7     as well so that you could already include in a submission any thoughts

 8     that have come up in your communications with the Defence, that might

 9     speed up the development on thoughts on the matter.  And whether you'd

10     first make it a general submission and then later transform the

11     submissions into a motion or just -- I leave that as a practical matter

12     entirely in your hands, perhaps even together with Mr. Lukic.

13             Then I move on.  Next chunk on my agenda is disclosure.

14             The 6th of January, the Chamber has received the Prosecution's

15     fourth pre-trial report, which included an update on the disclosure of

16     materials to the Defence.  Additionally, at the 8th of December

17     Status Conference, the Defence was invited to reply to the Prosecution's

18     response on its proposed EDS method of disclosure.  The Prosecution was

19     also invited to further reply in its fourth trial report.  The Chamber

20     received the Defence's reply on the 22nd of December, and the

21     Prosecution's further reply in its fourth pre-trial report of the

22     6th of January.

23             At the Rule 65 ter meeting on Monday, the Prosecution reiterated

24     its willingness to work to alleviate any technical problems of the

25     Defence related to electronic disclosure.  And when I say "technical

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 1     problems" to be understood in the broadest sense, and I just heard you

 2     repeat this commitment, Mr. Groome.

 3             A meeting was planned also with Chamber's staff on these

 4     technical matters.  I do understand that there is an ongoing discussion

 5     between the parties and that at this specific moment the need to have

 6     this meeting with Chamber's staff was not urgent, but as soon as you

 7     would consider it helpful to discuss the matters with Chamber's staff,

 8     Mr. Lukic, they're ready at any moment.

 9             As I said, the parties are encouraged to try to resolve these

10     matters among themselves and to come to an agreement, but for those

11     aspects on which no agreement finally will be reached, the Chamber hereby

12     informs the parties that it is in the process of carefully reviewing

13     these filings and the requests for relief which were contained in those

14     filings, and I hereby inform the parties that the Chamber aims to issue a

15     decision, to the extent still needed, of course, on the requested relief

16     within the next several weeks.

17             Any questions or any comments on these matters?  Then I move on

18     to the next item, adjudicated facts.

19             On the 9th of December of last year, the Prosecution filed its

20     adjudicated facts motion.  On the 19th of December, the Defence filed an

21     urgent motion to enlarge the time and the word count for its response.

22     One day later, on the 20th of December, in an informal communication, the

23     Defence request was granted and a new Defence response deadline is set --

24     was set for the 1st of February, 2012.  That decision granting this

25     request is hereby put on the record.

Page 167

 1             Mr. Groome, in the Prosecution's motion, in addition to

 2     requesting that the Chamber take judicial notice of the Prosecution's

 3     proposed facts, you also, one, proposed the procedure for potential

 4     rebuttal evidence where the Defence has, in the presentation of its case,

 5     offered evidence challenging an adjudicated fact, and two, requested that

 6     the Chamber invite the parties to make written submissions on the

 7     Chamber's guidance, announced at the 8th of December Status Conference,

 8     related to the Prosecution's proposed adjudicated facts and its upcoming

 9     Rule 65 ter filings.

10             For the first request about the potential rebuttal evidence, the

11     Chamber will not render a decision with regard to this procedure until

12     the Defence has had an opportunity to respond.  It is a complex matter

13     where the Chamber would not proceed without knowing exactly what the

14     position of the Defence is.

15             As to the second request, the Chamber recalls that at the

16     8th of December, 2011, Status Conference, the Prosecution was instructed

17     to compose its Rule 65 ter witness and exhibit lists acting under the

18     assumption that the Chamber would take judicial notice of all its

19     requested facts and that should the Chamber ultimately decide not to take

20     judicial of certain facts, then the Prosecution would have a possibility

21     to supplement its witness and exhibit list.

22             The Chamber does accept the concerns raised by the Prosecution in

23     its adjudicated facts motion on this matter, and therefore the Chamber

24     informs the Prosecution that it may submit its Rule 65 ter filings as it

25     originally envisioned, namely including all the evidence it intends to

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 1     present at trial regardless of the upcoming adjudicated facts decision.

 2     When the Chamber's adjudicated facts decision is rendered, the

 3     Prosecution will be expected then to review its witness and exhibits

 4     lists with an eye to removing those witnesses and exhibits that are no

 5     longer necessary in light of the decision.

 6             Mr. Groome, does this for the time being adequately address the

 7     concern you expressed in this respect?

 8             MR. GROOME:  Your Honour, the Prosecution appreciates the

 9     Chamber's consideration of the matter, and it does, indeed, alleviate the

10     concerns that we had.

11             JUDGE ORIE:  Then I continue addressing you again, Mr. Groome.

12     The -- in the Prosecution's adjudicated facts motion, at paragraph 32, it

13     states that, and I quote:

14              "Once the Prosecution files its exhibit list, it anticipates

15     filing a comprehensive application seeking judicial notice of prior

16     determinations of the admissibility of some of its evidence."

17             As was discussed during the Rule 65 ter meeting, the Chamber

18     instructs the Prosecution, before it files such a motion, to carefully

19     explore with the Defence whether there is a dispute about the

20     authenticity of the documents.  And I also remind the Prosecution about

21     the procedures of Rule 65 ter (E)(iii).  In addition, the Chamber would

22     prefer that the Prosecution link such a motion or motions to their

23     presentation of evidence.  This means that before tendering one or more

24     documents, the Prosecution can find out from the Defence whether

25     authenticity is challenged, and if it is, the Prosecution could consider

Page 169

 1     this kind of motion as a way forward.  The Chamber would prefer this

 2     rather than one comprehensive motion covering a large number of documents

 3     that might, or might not, be tendered into evidence in the future.

 4     Therefore, the Chamber would prefer to consider such matters in the

 5     context of the actual presentation of evidence.

 6             MR. GROOME:  That's understood, Your Honour.

 7             JUDGE ORIE:  Then on the 13th of January, the Prosecution filed a

 8     request for leave to reply to the upcoming Defence response to the

 9     Prosecution's adjudicated facts motion and to extend the time to file its

10     reply to the 24th of February.

11             Mr. Groome, given that the response you're seeking leave to reply

12     to has not yet been filed, the Chamber considers that your request is

13     premature and therefore the request is denied without prejudice.

14             MR. GROOME:  Your Honour, can I simply ask that we did this in an

15     effort to give the Chamber as much advance notice about the possibility

16     and also in light of Mr. Lukic's statement that he would be filing a

17     comprehensive response.  Can I simply ask the Chamber if it should be

18     after reading the response when it is filed the Prosecution is of the

19     view that it will need to reply and will need additional time, can we

20     reinstate the application informally, or will we be required to re-file

21     it on an urgent basis.

22             JUDGE ORIE:  We'll consider that and I take it that Mr. Lukic

23     would not oppose, objection to any practical solution for that.  If only

24     it would save paper, there are many ways of doing it without formally

25     filing.

Page 170

 1             And another solution would be to freeze this motion until the

 2     matter materialises in such a way that you would want to reactivate it,

 3     Mr. Groome.  Now, I have said already that the motion was denied, but it

 4     may well be worth to reconsider it, but as I said before, all decisions

 5     here are presented as the result of being adopted and deliberated by the

 6     Judges, and I'm here on my own, but -- one second, please.

 7                           [Trial Chamber and Senior Legal Officer confer]

 8             JUDGE ORIE:  Let's try to find a -- the motion on which I just

 9     decided on behalf of the Chamber is hereby frozen again for the purposes

10     of reconsidering within the Chamber whether the rejection of the motion

11     stands or not.  The parties will be informed about the status of the

12     motion once I have been able to discuss it with my colleagues.

13             It goes without saying that if the result would be that at any

14     moment the motion will be reactivated that, of course, with the then

15     knowledge of what has been submitted by the Defence, that the motion

16     might well be in need of adjustment of its reasons, but we'll then

17     communicate about the time you would need, and you would be granted to do

18     that.

19             MR. GROOME:  Your Honour, if the Chamber were to hold the

20     decision in abeyance rather than deny the decision or the application

21     outright, the Prosecution would undertake to notify the Chamber and the

22     Defence within 48 hours after receiving the Defence response of its

23     position with respect to whether it would seek to withdraw the motion,

24     seek to have it stand, or seek to amend it.

25             JUDGE ORIE:  Yes.  That's hereby on the record.  The fate of your

Page 171

 1     offer finally depends on what the Chamber will decide, but it's good to

 2     know in advance.

 3             Mr. Lukic, any comments on this matter?

 4             MR. LUKIC:  No, Your Honour.  We have nothing to add.

 5             JUDGE ORIE:  Then last matter in relation to adjudicated facts.

 6     In the motion of the Prosecution, it has proposed nearly 3.000 facts.

 7     Given the large number of the proposed adjudicated facts, the distinct

 8     and separable areas they address, and the importance of the parties

 9     having the Chamber's decision for other upcoming filings and ongoing

10     trial preparations, the Chamber hereby informs the parties that its

11     adjudicated facts decision will be divided into three separate decisions.

12     We're working hard on it.

13             Any questions or comments in -- on this matter?  Then I move to

14     my next item, agreed facts.

15             On the 9th of January, 2012, the parties jointly submitted their

16     third progress report on their agreed facts negotiations.  In this

17     report, the parties informed the Chamber that no progress has been made

18     since the filing of the last report, that of the 25th of November, 2011.

19     The Chamber reminds the parties that they are to continue to file monthly

20     progress reports on their agreed facts negotiations through the end of

21     the pre-trial stage of the trial.  Therefore, notwithstanding the lack of

22     progress in the last two reports, the Chamber expects a fourth progress

23     report to be jointly filed by the 10th of February, 2012.  And some of

24     the observations of the parties during the 65 ter conference made the

25     Chamber confident that in the future progress may well be made.

Page 172

 1             The parties are reminded that on the 10th of November, 2011,

 2     Status Conference that they were instructed to submit a joint filing

 3     including all those facts upon which they have agreed, and the Chamber

 4     now sets the deadline for such a filing at the 2nd of March, 2012.  That

 5     filing should include all the facts the parties have agreed on up to that

 6     date, and the Chamber expects the parties to continue their discussions

 7     to identify and agree on matters for which there is no real dispute

 8     beyond the two -- the 2nd of March deadline.  In due course, the Chamber

 9     will set deadlines for further progress reports for these discussions.

10             Any questions or comments in relation to agreed facts and

11     reporting?  And then I move on to my next item which is about experts.

12             At the Rule 65 ter meeting, the Prosecution's planned list of

13     expert reports was discussed.  The Prosecution has indicated that it will

14     not be able to make a final determination on whether it will tender all

15     of the currently listed expert reports until it has reviewed the

16     Chamber's adjudicated facts decision.  However, the Prosecution did

17     indicate that its proposed expert reports on the military will be

18     tendered regardless of the adjudicated facts decision.  These expert

19     military reports are in different stages of completion and, therefore,

20     the deadlines for the Defence's notice under Rule 94 bis (B) are not

21     triggered in all cases.  For example, while some version of most of the

22     reports have been disclosed to the Defence, some reports are still in the

23     drafting stage, some may require updating, while still others have been

24     disclosed already in their finalised form.

25             After consulting the Prosecution's expert report status update

Page 173

 1     contained in Annex C of its fourth pre-trial report, the Chamber issues

 2     the following decisions:

 3             For the Theunens, the Dannatt, and the Brown reports, the

 4     Prosecution is instructed to file these reports as soon as they are

 5     finalised, and the Defence -- Defence's 30-day notice deadline will run

 6     from that date of filing.

 7             For the Butler report, the Chamber understand that this report

 8     was disclosed in its finalised form.  Therefore, the Prosecution is

 9     instructed to file the report, and the Defence's 30-day notice deadline

10     runs from today, the 19th of January.

11             Finally, for the Phillips report, the Prosecution is instructed

12     to indicate in its fifth pre-trial report whether this report remains in

13     process or is ready to be filed in its finalised form.  Should the

14     Prosecution determine that this report is in fact finalised, it is

15     instructed to file the report and the 30-day notice deadline will run

16     from the day of that filing.

17             MR. GROOME:  Your Honour?

18             JUDGE ORIE:  Yes.

19             MR. GROOME:  I can indicate at this time that the Prosecution

20     does not intend to seek an update from Mr. Phillips of his report, and we

21     will file the report as it has already been disclosed to the Defence.

22             JUDGE ORIE:  Yes.  Which also means that the 30-day notice

23     deadline will run from today.

24             Now with regard to the remaining reports on the list, the

25     Prosecution is hereby instructed to file them as soon as they have been

Page 174

 1     finalised and they have been reviewed in light of the Chamber's

 2     adjudicated facts decision.  The 30-day notice deadline pursuant to

 3     Rule 94 bis under (B) starts running from the date of the filing of these

 4     reports.

 5             And I'd like to remind the Defence of something that was said at

 6     the Rule 65 ter Conference on Monday, the 5th of December last year, and

 7     I read from the transcript:

 8             "And once the Defence has filed its notice with regards to one or

 9     more of the reports, the Chamber would expect it to be as specific as

10     possible to which portions of the report it challenges."

11             Mr. Lukic, just to remind you that we'd like to know exactly what

12     portions, what parts of the report are challenged.

13             With regard to one of the experts where there's no report, there

14     was some discussion of this during the Rule 65 ter meeting.  The

15     Prosecution contends that previous testimony of this expert will meet the

16     Rule's requirements.  The Defence, on the other hand, argues that this

17     type of procedure for expert testimony is not envisioned in the Rules.

18             Let me first verify whether I have understood the position of the

19     parties correctly.

20             MR. GROOME:  Yes, Your Honour.

21             JUDGE ORIE:  Mr. Lukic.

22             MR. LUKIC:  Yes, Your Honour.  That was our position.

23             JUDGE ORIE:  Would you, that means the Prosecution and Defence,

24     would you like to add anything to what was submitted at the Rule 65 ter

25     meeting, because these are rather general approaches.  You would have an

Page 175

 1     opportunity to do so, but I would also like to ask the parties then to

 2     indicate on what case law they are relying, because Rule 94 bis, of

 3     course, deals with expert reports, but by the text of it, just referring

 4     to the text, it doesn't exclude other ways of introducing expert

 5     evidence.  I'm not saying that this should be possible under the Rules or

 6     not, but I'd like -- if you would like to make any further submissions, I

 7     would like you to draw the attention of the Chamber to specify case law

 8     in this respect.

 9             Mr. Lukic.

10             MR. LUKIC:  Thank you, Your Honour.  We would address your

11     attention to the case of Prosecutor v. Milosevic, decision on Defence

12     expert witness from the 21st August 2007 at paragraph 6 to 10; then

13     Prosecutor v. Stanisic and Simatovic, decision on Prosecution's

14     submission of expert report of Nena Tromp and Christian Neilsen, pursuant

15     to Rule 94 bis from 18th of March 2008 at paragraph 7; then

16     Prosecutor v. Popov et al., decision on the admissibility of the

17     narratives of expert witness Richard Butler from 27th of March, 2008, at

18     paragraph 9; then Prosecutor v. Perisic, decision of -- on expert report

19     by Richard Butler, 4 of March, 2009, at paragraph 8; and then we

20     should -- we would like to draw your attention to -- also to the case of

21     Prosecutor v. Peric, order on Defence submissions regarding various

22     expert's reports disclosed by the Prosecution pursuant to Rule 94 bis

23     from 2nd February 2007.

24             JUDGE ORIE:  Thank you for this detailed reference to the case

25     law.

Page 176

 1             Mr. Groome.

 2             MR. GROOME:  Your Honour, the Prosecution would ask for an

 3     opportunity to fully brief the Chamber or brief the issue not only with

 4     respect to the law but we are also discussing it in the abstract.  The

 5     Prosecution would submit that the issue can be more carefully focused and

 6     considered with respect to a specific application, and as soon as the

 7     Prosecution finishes filing its 65 ter filings, it will turn its

 8     attention to some of these expert reports and will file the applications

 9     dealing with the different types of experts that we intend to rely upon

10     and have a full account and full discussion of the applicable case law.

11             JUDGE ORIE:  Yes.  And you already have the privilege of knowing

12     what case law Mr. Lukic relies upon.  Of course the Chamber would prefer

13     this issue not to be hanging in the air for too long.  You may have

14     noticed that our approach to the expert reports is to have matters clear

15     as quickly as possible.

16             We'll consider, unless you would have any specific thoughts on

17     the matter, Mr. Groome, whether we should set a time-line for such

18     submissions.

19             MR. GROOME:  Your Honour, I would just say that the Prosecution

20     would appreciate an opportunity to complete these three very large

21     filings that we have in -- in the next two and a half weeks to complete

22     where everyone is fully engaged.  We can provide more substantive and

23     carefully considered submissions any time after that.

24             JUDGE ORIE:  Mr. Lukic, any objection to what the Prosecution

25     requests?

Page 177

 1             MR. LUKIC:  No, Your Honour.  We never oppose those requests from

 2     the other party.

 3             JUDGE ORIE:  Be careful in saying these kind of things,

 4     Mr. Lukic, but I do understand that you're referring to a practice in

 5     which you do not unnecessarily object to these kind of requests.

 6             MR. LUKIC:  And we hope that we will get the same kind of

 7     lenience from the other side when our turn comes.

 8             JUDGE ORIE:  Yes.  I -- I'll refrain from any comments on it, but

 9     I leave it to that at this moment.

10             Then I'm at the end of the clearly defined issues.  What I'd like

11     to invite the parties to do is to address the Chamber on any additional

12     matter, whether in public session or in private session.  If Mr. Mladic

13     feels any need to raise any matter, Mr. Lukic, you will assist him in

14     finding the appropriate way of raising matters.

15             MR. LUKIC:  Yes, Your Honour.  I think that open session is fine

16     and Mr. Mladic would like to address you shortly.

17             JUDGE ORIE:  Yes.  Then I give an opportunity to Mr. Mladic to

18     address me and through me the Chamber at this moment.

19             Mr. Mladic, proceed.

20             THE ACCUSED: [Interpretation] Comrade Orie, I would like to say

21     something, and it may not be pleasant.  I expect this trial to be fair,

22     and I expect that trials of others that you try are to be fair as well.

23             I believe that something that my people has been experiencing for

24     ages is happening here too.  You're charged and tried by the same person.

25             Number one, as of 1918, the technical equipment has become far

Page 178

 1     more advanced than earlier.  I see a screen before me, and I can read and

 2     understand numbers on them.  I can see the date or the hour, but the

 3     language that appears on it is something that I cannot understand.  I am

 4     a bit slow because of my health condition, and it takes a while for me to

 5     digest what the interpreter is saying.

 6             Now, the second question I would like to protest, although

 7     perhaps for you this is irrelevant, but I have to say it for the benefit

 8     of the public, I am a very sick man, not of my own choosing.  The right

 9     side of my body is not fully functional because of a stroke that I had

10     two years ago on the 18th of August.  Of course this is not your fault.

11     Perhaps it was God's will, or perhaps it's the Vietnamese syndrome,

12     because I carry a heavy burden as I have carried for a while.  And I'm

13     not saying this just for my own benefit but also for my people's benefit,

14     the benefit of my nation who have been shackled and are experiencing and

15     undergoing pressure from all sides.

16             Mr. -- Comrade Orie, I address you as a human being, because I

17     believe we are the same age.  I do not mean to be insulting, but I would

18     like to warn you.  It is not fair that I should be brought here with

19     handcuffs, that I'm not allowed to wear a cap, whereas there is something

20     blowing from the ceiling straight at me, cold air.  I am not allowed to

21     use the attorney of my choosing, who is from Moscow, probably because

22     he's Russian, and maybe you won't like this, but when you did not allow

23     Mezyaev to be my Defence team, that wasn't fair.

24             Now, there were also -- there are reputable people, men and

25     women, experts in Moscow, in China, even in America, but I'm not allowed

Page 179

 1     them to visit me.  You're not allowing my friends to visit me, probably

 2     because they're Russian, and I have to say that I came here with a

 3     Russian cap on on purpose last time that I appeared before you, and I

 4     have to say that under the Geneva Conventions you should not commit

 5     violations and breaches of the Geneva Conventions and showing -- and

 6     having all this show before the cameras, whereas you keep me handcuffed,

 7     whereas the other detainees are not handcuffed.

 8             JUDGE ORIE:  Mr. Mladic, I'm going to stop you here, because to

 9     some extent you're going beyond what is appropriately addressed in a --

10     in a Status Conference.

11             First of all, you addressed me as "Comrade."  I do understand

12     that "Comrade" is the -- if I could say the old fashioned and traditional

13     way of addressing people in a Communist regime.  If you would not mind, I

14     will continue to address you as "Mr. Mladic," which, in my view, is the

15     appropriate way of addressing persons in this courtroom.

16             Second, you said that you are charged and tried by the same

17     persons.  Just to clarify matters, you are charged by the Prosecution,

18     and you're tried by the Trial Chamber.

19             Third, you referred to being a very sick man.  We have received

20     medical reports, and to the extent these medical reports are justified to

21     do so, we'll consider them in whatever decisions we'll have to take.

22             You expressed that what you did was not only for yourself but

23     also on behalf of your people, your nation.  I earlier explained to you

24     that it -- that Mr. Lukic could advise you on what to be concerned about,

25     primarily about yourself or about your people or the nation.  One thing

Page 180

 1     is for certain:  You, and not your nation, is indicted before this

 2     Tribunal.

 3             Then you issued a warning.  I'll ignore that, because I think

 4     there's no reason to warn me at this moment.

 5             Composition of your Defence team and a few other matters such as

 6     being handcuffed during transportation are matters which are, to some

 7     extent, beyond the primary competence of the Trial Chamber.  Not to say

 8     that under circumstances they may come within the competence of the

 9     Trial Chamber, but as a rule, they are not.  They are primarily

10     competence of, for example, the Registry, and they are -- usually there

11     are legal avenues, legal remedies, to address those matters, sometimes by

12     launching an appeal through the President.

13               Mr. Lukic will certainly be able to deal with those matters in

14     the appropriate procedural way.  And to the extent the Chamber is

15     informed about it, the Chamber, again to the extent it would not go

16     beyond its competence, is always willing to seriously address them as I

17     think we did, Mr. Lukic, during the last 65 ter meeting as well.  The

18     Chamber takes always a positive approach to see whether problems which

19     are not necessarily there, whether these problems can be resolved.

20             This is what I'd like to say.  If you want to address any other

21     matter, I instruct you hereby to first briefly tell Mr. Lukic what you

22     want to address and then seek his advice before you raise any further

23     matter.  For example, our violation of the Geneva Conventions, if there

24     is any reason to believe that it's done, then Mr. Lukic -- one -- one

25     second, please.

Page 181

 1                           [Defence counsel and Accused confer]

 2             JUDGE ORIE:  Mr. Lukic, is there any other matter that Mr. Mladic

 3     would like to raise and which you consider to be appropriately raised by

 4     himself?

 5             MR. LUKIC:  Actually, he wants to address you.  He doesn't want

 6     to tell me what he wants to address you with.

 7             JUDGE ORIE:  Mr. Mladic, you may mention to me the subject you

 8     want to address, and you may not yet elaborate on it.  So you could say

 9     "health," then I might allow you to briefly address matters of health.

10     If, for example, you say "violation of Geneva Conventions," then I would

11     not allow you to do that because Geneva Conventions are legal

12     instruments, and from your previous observation, I was totally unable to

13     understand in what context you wanted to raise that matter.  So for those

14     matters, I would instruct you to introduce them through Mr. Lukic.  Is

15     there any specific subject you would like to address?  You may mention

16     the subject and then I will decide whether or not I will allow you to

17     elaborate on it.  You may mention a subject.

18             THE ACCUSED: [Interpretation] To be fair, Mr. Orie, I would like

19     to raise two issues, the issue of my notes.  Those are not diaries.

20     They're notes.  And the issue that I've already mentioned earlier, which

21     is the year of 1918.  Those are the two topics that I would like to raise

22     here, but whether you like them or not, well, that's your problem.  If

23     you allow me three minutes, fine.

24             JUDGE ORIE:  Well, Mr. Mladic, if you want to speak about your

25     notes, that is the -- whether you call them diaries or notebooks and

Page 182

 1     whether they're written by you or not, that is a matter of evidence, and

 2     evidence is not a matter to be discussed at a Status Conference.

 3     Evidence -- evidentiary issues come up at trial, and to some extent

 4     before trial, but they should be properly introduced.  Therefore, if

 5     you're talking about notes or diaries -- Mr. Lukic, and may I take it

 6     that this is a reference to evidential material which was seized at the

 7     premises of where Mr. Mladic lived, then I think it's not the time and

 8     the place to discuss them.

 9             Therefore, if the matter needs to be introduced, Mr. Mladic,

10     please discuss the matter with Mr. Lukic, and he will find an appropriate

11     way, either now or at a later stage, to introduce them.

12             Second, the year 1918, if that is any reference to the background

13     of the conflict which developed in the former Yugoslavia, then it is a

14     background evidence issue which the Chamber, of course, will hear after

15     we have seen pre-trial briefs if evidence on these matters is introduced,

16     is tendered, in the appropriate procedural way, and Mr. Lukic knows

17     exactly how background information, how historical information, can find

18     its place in the proceedings, but again, not a matter to be further

19     discussed or to be commented during the Status Conference.

20             So on these two subjects, I'll not allow you to elaborate at this

21     moment, and I assure you that to the extent you consider them relevant,

22     that at the future stages of the proceedings, there will be ample

23     opportunity to raise them.

24             Any other subject?

25             THE ACCUSED: [Interpretation] Mr. Orie, I will take on board what

Page 183

 1     my young attorney is advising, but I do have to touch upon this issue of

 2     the year 1918, and that would be in a compound sentence.

 3             Now, you see, there was a officer, Serbian person called Gavrilo,

 4     who then in Terezin Polje --

 5             JUDGE ORIE:  Mr. Mladic, my ruling was that the subject matter

 6     could not be raised by you at the moment, and that ruling stands.  Any

 7     other subject?  Any other subject?

 8             THE ACCUSED: [Interpretation] Well, whatever -- if I were to tell

 9     you anything, you can always switch off the microphone.  So I just wanted

10     to say Gavrilo Princip sacrificed his life for our nations just as I

11     have.

12             JUDGE ORIE:  Mr. -- Mr. Mladic.  Mr. Mladic.

13             THE ACCUSED: [Microphone not activated].

14             JUDGE ORIE:  Mr. Mladic, would you please behave.

15             THE ACCUSED: [Microphone not activated].

16             JUDGE ORIE:  Mr. Mladic, would you please stop speaking.

17             Mr. Groome, is there anything the Prosecution would like to

18     raise?

19             MR. GROOME:  There's nothing from the Prosecution, Your Honour.

20             JUDGE ORIE:  Nothing for the Prosecution.  Then this concludes

21     this Status Conference, unless you would have anything, Mr. Lukic.  This

22     concludes the Status Conference, and the next Status Conference, the next

23     Rule 65 ter meeting will be held on the 20th of February, 2012, and the

24     next Status Conference is scheduled for the 23rd of February, 2012.

25     And --

Page 184

 1             THE ACCUSED: [Microphone not activated].

 2             JUDGE ORIE:  Mr. Mladic, would you please not speak when I'm

 3     speaking.

 4             I further remind the parties that the next progress report on

 5     agreed facts is due on the 10th of February, 2012, as is the

 6     Prosecution's next pre-trial report.

 7             We therefore adjourn until the 23rd of February, 2012, courtroom

 8     and exact time to be communicated by the Registry at a later stage.

 9             And I add to this, Mr. Mladic, that if next time, even if it

10     would be at the very end of the Status Conference, you would continue to

11     interrupt me, that you'll be removed from the courtroom.

12             We stand adjourned.

13                           --- Whereupon the Status Conference adjourned

14                           at 5.57 p.m.