Right to file a sur-reply

Notion(s) Filing Case
Decision on Notice of Appeal - 26.03.2009 BOŠKOSKI & TARČULOVSKI

15. With regard to the Motion for Sur-Reply, the Appeals Chamber recalls that full answers to issues raised in motions should be provided at the response stage and that no provision of the Rules nor the Practice Direction authorizes a party to file a sur-reply.[1]  However, leave to file a sur-reply may be granted “where the reply raises a new issue to which the respondent has not already had the opportunity to respond”.[2]  In the present case, the issue of waiver was implicitly raised by the Prosecution in its Response and Motion to Strike[3] and Tarčulovski had the opportunity to respond to it.[4]  Therefore, the issue of waiver does not require leave to file a sur-reply. Given that the proposed Amended Notice of Appeal was filed as an annex to Tarčulovski’s Reply and Response to Motion to Strike, the Appeals Chamber considers that the Prosecution could only have raised matters related to it in its Reply to Motion to Strike.  Therefore, the Appeals Chamber accepts the Sur-Reply as validly filed to the extent that it refers to the compliance of the proposed Amended Notice of Appeal with the Practice Direction.

[1] Prosecutor v. Nikola Šainović & Dragoljub Ojdanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, para. 5. See also Ferdinand Nahimana, Jean-Bosco Barayagwiza & Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Formal Requirements Applicable to the Parties’ Filings Related to the Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence, 23 January 2006, p. 5.

[2] Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Prosecution Motion for Leave to File Sur-Reply to Defence Reply in Request for Review by Mlađo Radić, 9 May 2006, p. 3. See also Practice Direction of the Tribunal on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal, IT/155 Rev 3, 16 September 2005, para. 19.

[3] Prosecution Response and Motion to Strike [Prosecution Response to Johan Tarčulovski’s Motion of 12 January 2009, and Motion to Strike, 22 January 2009], paras 18-20.

[4] Tarčulovski Reply and Response to Motion to Strike [1) Reply of Tarčulovski on Motion 2) Response to Prosecution’s Motion to Strike, 26 January 2009], paras 12-13.

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Notion(s) Filing Case
Decision on Redacted Versions of Rule 86(F) Filings - 24.01.2017 KARADŽIĆ Radovan

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CONSIDERING that Karadžić’s reply expands on his submissions made in the Motion to which the Prosecution had sufficient opportunity to respond;

FINDING, therefore, that Karadžić’s reply contains no new issue that would justify granting leave to file a sur-reply;

[1] Prosecutor v. Vujadin Popović et al, Case No. IT-05-88-A, Public Redacted Version of 2 May 2014 Decision on Vujadin Popović’s Third and Fifth Motions for Admission of Additional Evidence on Appeal Pursuant to Rule 115, 23 May 2014, para. 14 (“leave to file a sur-reply may be granted where the reply raises a new issue to which the respondent has not already had the opportunity to respond”).

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