88 Trial Monitoring: A Reference Manual for Practitioners regulated by law and have not yet been the object of extensive review and debate.134 To help identify whether practices in such cases constitute potential breaches, monitors can research soft law or scholarly opinions. They may also apply human rights standards to interpret conduct if there is a legal vacuum. Good practices from other countries might also be applied to the situation. Or they could decide to give the benefit of the doubt to the judiciary and conclude that a suspicious practice does not amount to a breach of fair trial standards. Most programmes call on monitors to alert supervisors when they suspect but are unsure that there has been a breach in a case. Legal analysts can then perform any required research and make a judgement whether the observed practice is problematic.135 Finally, it should be underscored that assessing a procedural action as not in accordance with human rights standards does not necessarily mean that the trial as a whole is not fair or that a court of appeals adjudicating the human rights compliance of the case would find a violation. Monitoring conclusions resemble the criticism that law scholars pose in their writings on judicial decisions and practices. An appeals court may have different variables to consider, based on the circumstances and the parties’ submissions in a specific case, so it may not find a violation of fair trial standards where monitors have raised a concern. This does not necessarily mean that a programme’s findings and conclusions are irrelevant or faulty. 10.2 Problem verification A trial-monitoring programme’s credibility and perceptions of its impartiality and professionalism can be damaged if it issues reports or takes positions that are not thoroughly defensible based on both facts and interpretation of the law. Programmes should, therefore, employ a variety of methods to ensure the reliability of their findings and conclusions, and to cross-check their facts for their accuracy and the authority of the legal standards they apply. Monitors and legal analysts must ensure that the facts they convey in their internal reports are accurate. Therefore, breaches observed in proceedings usually undergo verification checks, independently and through co-operation among monitors and analysts, from at least two sources to establish whether there were omissions and verify the accuracy of dates, statements, actions and legal references. For instance, when a problem is identified, monitoring personnel may compare the notes taken during proceedings with the official court record or audio record of a hearing, review the translation of documents, obtain the relevant written submission of a party or the court decision, interview relevant actors who may corroborate or shed additional light on matters observed, or take other steps to verify information. If a legal provision is used or interpreted in a questionable manner in court, monitoring staff should obtain the original legal text and check whether it is updated and authoritative. Additionally, they should review whether there are contradictory versions of the law or different interpretations in court decisions and commentaries. Although monitoring reports do not need to refer to all sources checked, programmes should keep a record of their sources and be prepared to back their findings if they are ever questioned. If sources provide contradictory information as to whether a breach of national and/or international standards 134  The first two cases of defendants indicted by the ICTY and transferred to courts in Bosnia and Herzegovina provide an example. The Bosnian judges decided that the two defendants would continue being detained on remand in Sarajevo until their ICTY indictments were adapted into local law that was silent on the question. They reached this decision on the basis that the ICTY detention orders had primacy over local courts. The OSCE monitoring programme argued that, in reaching the above decision, the judges essentially rendered themselves powerless to examine the merits of whether detention should continue. Therefore, the defendants’ continued detention was not reviewed by a judicial officer in the sense required by Article 5(3) ECHR. Based on this OSCE opinion, the domestic court changed its approach in subsequent cases that were transferred. 135  For instance, in filling out the Daily Hearing Report within the electronic database of the Mission to Bosnia and Herzegovina, monitors are asked to flag any practice about which they are uncertain as a violation. The issue is then reviewed at the level of the legal advisers, who will further research the facts and applicable law to reach a more informed conclusion on whether there was a breach.