7.1.1 The duty of non-intervention and appearance of impartiality As discussed in Chapter 1, the principle of non-intervention in the judicial process is an overarching principle that serves to support and ensure the independence of the judiciary, a fundamental requirement for the rule of law. Related closely to the principle of non-intervention is ensuring the appearance of impartiality regarding the outcome of the case. The appearance of impartiality as to the merits of a case helps ensure that all legal actors understand that the monitoring programme is not biased regarding the merits of individual cases. While the principle of non-intervention applies most directly to contact with the judiciary, the appearance of impartiality applies in a similar manner to interaction with all legal actors and participants. In practice, each programme differs in the extent to which contact is made with legal actors and case participants in trials. For instance, some programmes may rely on prosecutors and lawyers for specific information about a case, to access to documents or schedules, or they may prohibit contact altogether. Whatever the nature of the interaction, however, certain general rules should be incorporated in a code of conduct regarding contacts with all legal actors and participants. To the extent that monitoring methodology relies on informal information-gathering from parties or participants, the appearance of impartiality may be difficult to maintain. This is especially true where one party becomes aware of interaction with the other party in a case. If a programme methodology must include such contacts, one way to avoid this appearance of impartiality is the rule of mutuality of contact: if contact is required with one party (for documents or to obtain information), there should be similar contact with the other party so it is clear to both sides that the monitor is not siding with a party regarding the outcome of the case, but merely obtaining information. In contacting both sides, however, the monitor must not share information, as this would serve to engage the monitor in the judicial process. OSCE monitoring programmes have adopted almost identical rules for codes of conduct related to the principle of non-intervention and impartiality. The following are best practices that have been developed: • Monitors must never interrupt a trial proceeding or speak with legal actors or participants during the trial. • Monitors must never intervene in a trial or attempt to influence the outcome of trial proceedings in any way. • Monitors must never ask legal actors their opinion on a case or advise them with regard to a course of legal action to take. • When asked questions about, or invited to actively engage in, the judicial process, monitors must explain their role as an observer of the process, the principle of non-intervention by which monitoring is conducted, and the purpose of monitoring, and they must decline to comment. • Monitors must maintain strict impartiality in the conduct of their duties and shall at no time express any bias or preference in relation to the parties in a case. • Monitors sit apart from the prosecution and defence in the courtroom if physically possible, to avoid the appearance of support or partiality. 88 Trial-Monitoring: A Reference Manual for Practitioners