137 CHAPTER 16 Main Themes Encountered in Trial-Monitoring Programmes This chapter discusses and provides examples of a number of issues that have been the subject of thematic trial-monitoring programmes within the OSCE. It describes some of the salient features of each, including why the topics were chosen and variations in the methodology of different programmes. The list of examples offered here is not exhaustive, and other issues could be chosen by future programmes. 16.1 Monitoring the implementation of new codes Thematic monitoring of the implementation of new legal codes can be valuable if justice systems have undergone a complete change in their criminal or criminal procedure codes. Bosnia and Herzegovina is one jurisdiction in which the system was transformed from inquisitory to hybrid, with robust adversarial features. Another jurisdiction in which this was the case is Kosovo. Considering that, in both cases, the introduction of these codes occurred rapidly, domestic legal professionals had little time to adapt to the radical changes in the laws. Therefore, the manner in which the new codes were implemented was of great interest for monitoring programmes.199 To make valid assessments on how a new legal framework is implemented throughout a jurisdiction, programmes should ensure a sufficiently large and long-term presence on the ground, covering multiple courts and as many hearings as possible. While monitoring personnel for such programmes should have a general legal background, previous experience practicing law may not be necessary, since monitors will be observing entirely new procedures and practices. The international presence in such programmes may be limited to senior positions, while nationals can be employed as monitors, as this type of monitoring does not pose any particular concerns in terms of the security of monitors. In terms of methodology, managers of thematic programmes observing the implementation of new codes may decide that it is sufficient to follow only selected hearings in different cases. For instance, if new amendments to the law affect pre-trial detention, then detention hearings may be selected as particularly relevant, together with a review of any subsequent detention orders and motions obtained from the case file. However, unless carefully structured, monitoring the implementation of new provisions may not always identify non-compliance with fair trial rights or bring to light the root causes or the consequences of certain practices. This can especially be the case for programmes that use statistics extensively, which can make a report difficult to read and lessen the impact of an argument. For example, finding that only two per cent of courts use audio recording for their hearings may not stun the authorities into taking action, unless a report also explains how this adversely impacts upon the parties’ right to a fair hearing. 199  In Bosnia and Herzegovina, the imposition of new codes by the Office of the High Representative happened almost overnight in 2003. In 2004, the newly established trial-monitoring programme of the OSCE Mission engaged in monitoring the implementation of the new criminal procedure code by deploying 24 national monitors to cover 38 trial and appellate courts throughout the country.