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Trial Monitoring: A Reference Manual for Practitioners
assessments are sought, there will be less opportunity for in-depth analysis than in is offered by
open reporting systems.
It is also possible that, despite the numerous questions included in questionnaires, a problematic practice arises in proceedings that is not foreseen in the questionnaire and is, thus, missed by
the programme. This can concern an entirely different issue or one that is closely connected to the
questions asked, but not explored specifically. For example, a questionnaire may ask whether the
judge asked the injured parties whether they wished to file a property claim, but failed to ask specifically whether the injured parties understood the meaning of this right.145 A questionnaire that
does not foresee possible problems with this practical aspect may render findings that do not entirely correspond to reality, unless monitors are alerted in advance to such issues and provided space
to comment on them. Generally, closed systems instruct monitors to pay attention to all details of
proceedings — even if they do not appear on the questionnaire — that could indicate breaches of
human rights. However, there is a risk that closed systems will limit the monitors’ attention during
the observation, at the expense of those elements that are not covered by the questionnaire, which
might then end up being ignored or overlooked. For this very reason, while closed systems may be
suitable for use when monitors with little experience are hired, they are not as effective as open systems in further building the analytical legal skills of experienced monitors. Chapter 9.8, on “Information gathering on the basis of questionnaires or surveys”, provides guidance in drafting of lists
of questions.
11.3.3 A comparison of open and closed reporting systems
Each system has advantages and limitations that ,might make it more or less useful and effective
given the purpose and focus of a programme. The chart below compares open and closed reporting systems.
Comparison of open and closed reporting systems
Issue
Open (narrative) report
Closed (questionnaire) report
Depth of
analysis in
individual cases
• This system allows for in-depth focus
and detailed analysis on particular issues in individual cases, including the
treatment of problems and detailed
analysis.
• The project may be structured to provide specific information and analysis
on application of domestic laws and fair
trial standards.
• This system may provide a greater level
of detail for public reporting of serious
fair trial or human rights violations in individual cases.
Ability to
provide
quantification
of problems
throughout the
justice system
• This option may make it more difficult
to aggregate and quantify findings on
numerous and diverse issues.
• As open reports become more structured and focused, there is more capacity to quantify the nature or extent
of identified problems.
• This system provides less in-depth narrative analysis in individual cases.
• This system provides less capacity for
examining more elaborate problems,
or demonstrating “grey areas”, where
breaches are not as straightforward.
• These systems are structured to enable
an easy compilation of practices noncompliant with domestic laws and fair
trial standards.
• This format allows for a quantitative or
survey-type approach regarding practices across all cases monitored.
• The quantitative focus may provide a
strong basis for conclusions about the
need for systemic reforms.
145 Monitors have reported cases in which the legal language used in court proceedings was not understood by the layperson,
rendering it ineffective.
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