Chapter 8 — Conduct and Capacity-Building of Trial-Monitoring Staff 8.1.1 Duty of non-intervention Non-intervention in the judicial process is an overarching principle that serves to support a fundamental requirement for the rule of law: the independence of the judiciary. OSCE monitoring programmes have incorporated the principle of non-intervention, which can be reduced to the following duties for monitors: • Monitors must never interrupt a trial proceeding or speak with legal actors or participants during the trial; • Monitors must never intervene in a trial or attempt to influence the outcome of a trial; • Monitors must never instruct or advise legal actors with regard to a course of legal action to take or not to take; • When asked questions about the judicial process, or invited to engage in it, monitors must explain their role as an observer, the principle of non-intervention, by which monitoring is conducted, and the purpose of monitoring, while declining to comment; • When engaging for the first time with actors or participants who are not familiar with the monitor’s function, monitors should explain their role as an observer, as well as the principle of nonintervention, by which monitoring is conducted. These duties apply also to legal analysts and managers of programmes, should they observe proceedings. In sum, there is a common agreement in OSCE programmes that monitoring personnel should not interfere with the course of an ongoing case, particularly during trial proceedings, nor appear to do so. Trial-monitoring programmes may, however, take different approaches to the application of this duty, especially concerning monitors’ communication with judges and whether monitors should conduct advocacy activities with justice actors. Certain programmes may impose an absolute prohibition on monitors communicating with judges, reserving communication or other advocacy to programme managers, who should themselves limit communications to roundtables or similar activities. However, most programmes allow monitors to introduce themselves to judges, to inquire about administrative issues, or to gauge the justice actors’ general legal opinions not connected to a particular case. There are also programmes that foresee monitors discussing concrete cases with judges, prosecutors and defence counsel, albeit in broad terms and not criticizing or advocating particular courses of action.78 In some contexts, monitors are also allowed to point out any obvious technical issue or clerical oversight. Some programmes have introduced an exception clause from non-interference with the judicial process if monitors witness egregious human rights violations during their duties or where credible information about a human rights violation is brought to their attention. In such circumstances, monitors should immediately notify their supervisors, who will consider how to best address the issue. A variety of exceptional circumstances may be envisaged in which monitors can find themselves facing a conflict of duties, such as if they witness the physical ill-treatment of a suspect. From a human rights perspective, it would be essential to take steps to end such a violation, even if doing so might be at odds with the duty of non-intervention. Therefore, managers should prepare monitors for highly unlikely, yet extremely problematic situations, in which they need to use good judgement. To achieve this, managers may include in the monitoring guidelines both ethical principles on monitoring and other interests that need to be respected in operations, such as safeguarding the security of oneself and colleagues, promoting a positive image of the organization, and meeting 78  For instance, a monitor would be permitted to ask a prosecutor or defence counsel whether s/he intends to file an appeal in a case. Or, should a deviation from the law be noted in a case, the monitor may be permitted to ask the stakeholder to describe her/ his understanding of the legislative text or of any applicable international norms and standards. Further examples of this “questions approach” that some programmes take as part of proactive or thorough monitoring are provided in Chapter 9.3.1. 63