in the case.7 For programmes operating in such states, monitoring will not depend
on document review. Given these variables, the ability to access documents will differ
greatly between programmes, and programmes must consider how the access to specific documents will affect the scope and focus of monitoring.
5.4.4 Best practices for securing access to documents
• Whenever possible, the right to access to documents should be raised and included
in an MoU, as well as addressed with court presidents at the inception of monitoring. A methodology for obtaining documents, including who is responsible for the
provision of them, should also be specified as far as possible.
•
For the convenience of the court, documents should be obtained in a systemized
manner.
•
Where monitoring methodology includes review of court documents, case files
should ordinarily be reviewed in advance of the hearing to allow the monitor to
become familiar with the relevant aspect of the case.
•
If photocopying of court documents is not permitted or possible, another possibility may be the inspection of documents at a convenient time in the courthouse.
•
Since case files may be kept by individual judges, to respect the principle of nonintervention, monitors should try to avoid direct contact with the judge, and first
request case files from the registry and/or other court staff.
5.4.5 Securing access to closed hearings
International law provides permissible exceptions for the exclusion of the public from
hearings in certain specified circumstances.8 Despite such exceptions, attendance at
closed hearings may be important to identify issues related to the specific focus of
some programmes. For instance, this may be the case where monitoring seeks to focus
on juvenile-justice issues, cases involving vulnerable or protected witnesses, victim’s
rights, or other issues that may arise in cases where the public is legitimately excluded.
Further, monitoring is generally the only method to assess the exercise of fair-trial standards in closed hearings. Again, for some programmes, the mandate of a particular
programme may provide sufficient support for monitoring a closed hearing even where
the public is excluded. In other domestic contexts, a programme may have to negotiate
this right generally, or make an application to the judge on a case-by-case basis.
7 It should be noted that the right of the defendant to documents is different from the right of the monitoring
programme. The former is supported by international standards related to the principle of equality of arms and
the right of the accused to prepare a defence, while the latter is related more broadly to the separate interest of the
defendant and the public to a public and open trial proceeding.
8 Pursuant to Art. 14 (1) of the ICCPR, exclusion of the press and public may be appropriate for “reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary … in special circumstances where publicity would prejudice the
interests of justice”.
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Trial-Monitoring: A Reference Manual for Practitioners
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