36
CHAPTER 4
Access to Court Proceedings
and Other Access Issues
A key step for any trial-monitoring programme is to assess how much access it might be able to gain
to judicial proceedings, materials and other related information. There are two main types of access
issues: those related to case identification, and those pertaining to monitoring as individual cases
progress. The main challenge related to case identification is to achieve a regular system of access
to information that permits the fullest identification of cases or proceedings relevant to monitoring. The principal challenge related to case monitoring is to achieve a level of access to materials and
hearings commensurate with the goals of the programme.
Securing regular access permits programme personnel to identify cases and adapt monitoring
methodology, thereby improving the quality and consistency of monitoring results. Simply put, the
greater the access, the more thorough and effective monitoring will be. Securing appropriate access
requires an analysis of the legal framework for provisions that govern public access to trials, laying
the groundwork for monitoring activity with officials at all levels, and establishing internal procedures and strategies to maximize access.
4.1 Identifying the legal framework
The initial step in securing access for trial-monitoring activities is identifying the legal framework
supporting trial monitoring in applicable international and domestic law. In international law, programmes may always look to the fundamental right to a public trial as a basis for trial monitoring.
The right to a public trial is enshrined in Article 14 (1) of the ICCPR, as well as in relevant regional
treaties, such as Article 6 (1) of the ECHR. Therefore, most states will be subject to international legal obligations that require them to allow access to trials and the monitoring of proceedings.
All OSCE participating States have made a specific commitment, under paragraph 12 of the Copenhagen Document, to allow the monitoring of trials by observers from other participating States,
NGOs or other interested persons. For some OSCE field operations, such as the Mission to Bosnia
and Herzegovina and the Mission in Kosovo, trial monitoring is an explicit element of their mandates. Some field operations have also attempted to gain access to closed hearings, which generally
will be granted only on the basis of concrete agreements.39 Certain OSCE field operations were established with robust mandates, including unhindered access to courts and the judiciary. For example, trial-monitoring programmes set up by the OSCE Mission to Bosnia and Herzegovina and the
OSCE Mission in Kosovo have capitalized on the concept of unhindered access and have obtained
the agreement of the authorities for far-reaching access to proceedings, including those not open to
the public.40 In these circumstances, to a large degree, monitors were not perceived as members of
the public, but as professionals carrying out a concrete role requiring more privileged access.
39 See also Chapter 4.5, “Access to closed hearings”.
40 In the case of the OSCE Mission in Kosovo, this was true during the whole period of the UNMIK administration of the
territory.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents