Chapter 4 — Access to Court Proceedings and Other Access Issues access to a closed hearing is denied, monitors should report and analyze the denial of access as required by the reporting methods of the programme. They can then seek to obtain any redacted or other form of transcript the court might release. Access to closed hearings presents additional operational challenges that must be addressed. The most important of these is the challenge for managers of putting into place a system that protects the confidentiality of information acquired during closed hearings. Monitors may be required, as part of their contract or code of conduct, to be bound by any court order prohibiting the public release of information, particularly involving the identity of witnesses, specific evidence and other confidential information. Furthermore, managers will have to establish clear information-sharing controls, which might require special steps to ensure the confidentiality of reporting. Reporting methodology should include special procedures for conveying and storing confidential or sensitive information. Moreover, programmes will generally have no professional interest in reporting or recording some confidential information, e.g., the names of protected witnesses. Where such controls are not established, or where confidential information is released, both the judicial process and the programme’s credibility might be compromised. Another operational challenge in monitoring closed hearings relates to heightened security concerns that may arise if a monitor is privy to confidential information, such as the identity of protected witnesses. In OSCE experience, such instances have been rare. Nonetheless, in cases involving organized crime, war crimes or other high-profile criminal matters, programme managers should carefully balance the benefits of monitoring closed hearings against any security concerns this might generate, keeping in mind the importance of ensuring the personal safety of monitors.48 In general terms, the duty to maintain confidentiality covers the protection of the information that warrants the application of a closed hearing under international or domestic law. This does not prevent analysis and disclosure of problems with general procedures. For example, reporting on the repeated lack of legal representation for juvenile defendants in criminal proceedings would not breach the obligation of confidentiality, provided that reports do not share any information that would compromise the protection of the identity of the juveniles. 4.6 Access to investigation and pre-trial proceedings and materials The need for access to investigative proceedings will largely depend on whether a programme has reason to be concerned about the human rights compliance of investigative actions, and the access to such proceedings will depend on whether an access agreement can be reached with the authorities. Observing a number of issues during the pre-trial period might add value to programme outputs. Annex II.B lists the degree of protection of several pre-trial rights that might be observed, such as the suspect’s right to be informed of the charges against her/him and of the reasons for her/his detention in a language that s/he understands. Monitoring investigative proceedings can also shed light on reasons why certain types of cases rarely reach the trial phase, or why others where there appears to be insufficient evidence go to trial nevertheless. The monitoring of the pre-trial stage will be revisited in the section on thematic monitoring.49 To gain access to investigative proceedings, programmes will either need to be backed by a robust mandate or will need to convince the authorities of the benefits such monitoring can have for the justice system.50 An MoU can include the agreement with the authorities for this type of monitoring and the obligations of each party. Negotiating such an agreement on access may be easier after a programme has already gained the authorities’ confidence and demonstrated its compliance with strict confidentiality clauses. An agreement should set out the scope of a programme’s access, al48  See Chapter 8.5.7 “Structures for ensuring trial monitors’ security”. 49  See Chapter 16 “Main themes encountered in trial monitoring programmes”. 50  Also see Chapter 4.1, “Identifying the legal framework”. 43