Proof of existence of the requested materials

Notion(s) Filing Case
Decision on Request of the USA for Review - 12.05.2006 MILUTINOVIĆ et al.

23. Furthermore, the Appeals Chamber does not agree with the United States that the necessity requirement under Rule 54bis stipulates that an applicant must make an additional showing that the requested materials in fact exist.[1] The necessity requirement obliges the applicant to show that the requested materials, if they are produced, are necessary for a fair determination of a matter at trial. Requiring an additional showing of actual existence would be unreasonable and could impinge upon the right to a fair trial given that these materials are State materials, often of a confidential nature. In many cases, it would be impossible for an applicant to prove the existence of these materials. All that is required is that an applicant make a reasonable effort before the Trial Chamber to demonstrate their existence. […]

[1] Request, p. 8. The Appeals Chamber cautions that its rejection of such an obligation under the necessity requirement should not be interpreted in any way to undermine the overriding principle with regard to Rule 54bis orders to produce that they should “be reserved for cases in which they are really necessary,” Blaškić Judgement on Review Request [Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997 (“Blaškić Judgement on Review Request”)], para. 31 (internal citation omitted).

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ICTY Rule Rule 54bis