Chapter 4 — Access to Court Proceedings and Other Access Issues 4.3 Access to the courtroom and hearings in individual cases In seeking access to hearings, monitors may be confronted with a range of practical obstacles, from policing practices in courthouses to informal barriers. For example, a lack of courtrooms may necessitate that hearings take place in a judge’s private chamber. The process by which monitors seek access to hearings is not only a logistical issue, but should be viewed as part of a wider strategy to expand the right to a public trial. For these reasons, and to facilitate access in particular courtrooms, it is important that programmes adhere to certain principles and good practices outlined below: • Monitors should arrive in advance of a hearing to give them sufficient time to locate and enter the courtroom; • Monitors must be prepared to show programme documents and identification, as well as being able to articulate clearly the legal basis, purposes and objectives of the programme to all court officials and legal actors, particularly if access is denied; • If access is still denied, the monitor should request a meeting with the judge to explain the legal basis, purpose and objectives of the programme. If denial persists, the monitor should inquire as to the specific legal basis or reason why the right to a public trial in the case is limited; • Monitors should report and analyze the reasons for denial of access to the judicial hearing, as required by the programme’s reporting methods; and • Monitors should never threaten court officials, but should remain professional at all times in exercising their responsibilities. Some potential problems may be avoided if monitors are able to meet with judges or court officials before the trial to explain the programme and its purposes, and to reach advance agreement on access, as described in Chapter 4.2. 4.4 Access to documents Court-case files constitute another primary source of information and often provide important information on proceedings that occurred prior to a monitored hearing. While the extent of collection and review of such documents depends on the scope and focus of a specific monitoring programme, obtaining access to these documents may be important for monitors seeking additional information on a case or wishing to elaborate on issues that arise in the stages prior to the public trial. Case files may, for instance, provide information on whether the defendant’s rights might have been violated in pre-trial stages; on the grounds for pre-trial detention; on delays in gathering evidence that can relate to a breach of the right to be tried within a reasonable time; on the investigative statement of the defendant and whether defence counsel was requested and present; and on other proceedings that occurred prior to the trial. Case files can also include the records of hearings, the submissions of the parties and written objections made during the trial, thus presenting the monitor with the full picture of the case. The ability to obtain documents depends on domestic law and practice.43 In many OSCE participating States, a number of court documents are public by virtue of laws on access to public documents. In other states, however, the court file, indictments and court decisions are not publicly available, as they can be obtained only by parties involved in the case.44 For programmes operating in such countries, the review of such documents may not be a part of monitoring. Programme managers must understand how access to documents will affect the scope and methodology of a particular monitoring programme. 43  In some cases, for example the OSCE programmes run by the Mission in Kosovo and the Mission to Bosnia and Herzegovina, the Mission mandate provides for “unhindered access” and, therefore, the right to review all documents. In the case of the OSCE Mission in Kosovo, this was true during the whole period of the UNMIK administration of the territory. 44  It should be noted that the right of the defendant to access or receive documents is different from the right of the monitoring programme. The former is supported by international standards related to the principle of equality of arms and the right of the accused to prepare a defence, while the latter is related more broadly to the public interest in a transparent proceeding. 41