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Trial Monitoring: A Reference Manual for Practitioners
conference. Second, it will help legitimize and confirm the importance of monitoring from the local
perspective. Third, such a step, while raising the public profile of reform-minded actors, may also
help to secure on-the-record commitments from national authorities to take specific follow-up action. However, when including authorities in press events, it should be kept in mind that such events
are not forums for discussion or debate, but public events aimed at providing a clear message regarding the findings of monitoring.
12.3 Confidential and semi-public reporting
In addition to public reports, trial-monitoring programmes have also in the past issued confidential
reports, as well as reports categorized as “semi-public” because they are of limited distribution. Each
type of reporting serves a particular purpose.
Whereas public reports, described in Chapter 12.2, generally seek as wide a distribution as possible,
confidential reports contain sensitive or protected information, which for legal, political or strategic
reasons should not be shared beyond a limited number of identified recipients. Their texts normally include a specific warning that they should be treated as confidential. Confidential reports have
been used to share certain information deriving from closed hearings or which has been disclosed
to the programme on the condition that it treats it confidentially. In other instances, programmes
have agreed to share only with domestic disciplinary bodies for judges and prosecutors any reports
that document egregious misconduct by particular judicial actors.
Semi-public or limited-distribution reports are those addressed to certain types of recipients due
to their specialized nature, but that do not include confidential information. Therefore, if for any
reason additional actors request them or if they are disseminated as public by any individual, no
sensitive interest is compromised. For example, such reports may be shared with other interested
international organizations, if they request copies.180 Confidential or semi-public reports could also
be used at the initial stages of a programme, to build the confidence among authorities who appear
defensive about public reporting of problems or sceptical of the nature of the programme’s output.
Classification of reports in one way or another may depend on various local factors and perceptions,
so rules may vary among different trial-monitoring programmes.181
In addition to completed reports, monitoring programmes will possess a wealth of up-to-date information regarding a variety of proceedings, including high-profile cases and statistics on the functioning of the justice system. Understandably, this information is appealing to other organizations,
embassies, professionals and scholars who follow justice reforms. As these actors’ activities and writings can contribute to reforms and further the goals of monitoring programmes, it may be useful for
monitoring programmes to share this information. Therefore, it is essential for programme managers to have appropriate systems in place to make clear to staff what information can be shared, with
whom, and under what conditions. The more regularly public or semi-public reports are issued, the
easier it is for programmes to share their findings, as these reports will have gone through clearance
procedures and will be available to support advocacy activities.
Nonetheless, publicizing all information interesting to others is not possible in reality. In considering whether to provide non-public reports or to share information more generally, programmes
180 For instance, the monthly reports that the OSCE Mission in Kosovo shared in the past with the UN Mission in Kosovo (UNMIK) were semi-public. From 2005 onwards, the programme then decided to share these reports with all local justice actors and
eventually to publish them on the OSCE webpage.
181 The monitoring based on the ICTY 11bis rule represents a case in point. Pursuant to Decision No. 673 of the OSCE Permanent Council, OSCE field operations in South-Eastern Europe arranged to share with the ICTY reports on the progression of war
crime cases transferred to the national jurisdictions. While the then OSCE Mission to Croatia shared its reports with the ICTY
in a confidential manner, the OSCE Mission to Bosnia and Herzegovina treated only a handful of the reports as confidential,
sharing most with local and international authorities and eventually with the public.
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