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Support It | Chapter Eleven

Trial Monitoring


THE BASICS

Trial monitors are often lawyers, individuals with legal training or human rights experts. They observe the judicial process, take notes during court proceedings, interview legal actors and obtain legal documents to measure the extent to which the court follows fair trial standards and remains independent and impartial. In this way, trial monitoring promotes transparency and reinforces the right to a public trial. An observer's presence can impel judicial and governmental actors to better adhere to human rights standards. The evidence and information gathered can form the basis for calls to reform the justice system.


WHY HIRE A TRIAL MONITOR?

Organisations tend to hire trial monitors for one of three purposes:

1) To ensure that the defendant's right to a fair trial is upheld. For example, monitors can gauge whether the judge is not influenced by outside actors to favour the prosecution lawyers over the defense. This is especially important where political charges are involved, which is often the case in trials brought against human rights defenders and journalists.

2) To ensure that justice is carried out with regard to human rights violations In this case, the observers aim to investigate the extent to which those responsible for human rights violations are brought to justice and punished in accordance with international law. For example, monitors may discover that the prosecution is failing to disclose evidence so as to not to implicate other political officials not involved in a trial.

3) To identify patterns across a large number of trials whereby human rights are violated A systemic project, for example, may send observers to monitor every libel trial in a country over a period of several years in order to recommend changes in how the justice system approaches libel cases.


BEFORE THE TRIAL


SET OBJECTIVES

Laying out the objectives of trial observation helps organisations determine their methodology, select the monitors and cases, establish policies around publishing reports and meeting with officials, etc. In addition, clearly articulated objectives will often help organisations gain access to court proceedings and documents as well as interviews with judicial actors. See also Setting Campaign Objectives.


SAMPLE OBJECTIVES

The number of cases and duration of the monitoring project are determined by the goal of the project.

1. Single Trial Monitoring

  • Ensure the accused receives a fair trial
  • Raise awareness among the media, public and government about the application of international and human rights law
  • Collect information for use as evidence to government and judicial officials when outlining the need for reform.

2. Systemic Trial Monitoring

  • Assess the justice system’s compliance with international fair trial standards
  • Evaluate how rigorously the court upholds the burden of proof in libel cases


DETERMINE WHICH CASES TO MONITOR

The type and number of trials to be monitored depends on a number of factors, including objectives and capacities of the organisation, human rights and security situation in the country involved, and a whole host of other factors. Generally speaking, however, organisations that are monitoring one or a few trials choose them according to the political or historical significance of the trial, expected irregularities in proceedings (perhaps due to presumed official interference in the application of charges); the precedent-setting possibility of the trial or the gravity of the charges or crime involved.

In systemic projects, it is necessary to determine the scope of a project. For example, organisations may wish to monitor all cases relating to freedom of expression, or only cases where journalists have been accused, or only cases that pertain to a particular law, such as libel cases. Human Rights Watch (HRW), which has undertaken systematic fair trial reviews in Rwanda, suggests determining the number of cases in accordance with the annual caseload of the courts to ensure that the sample is representative. For groups interested in broad justice system monitoring, HRW also recommends choosing trials from the country's various courts.


SELECT TRIAL MONITORS

Watch for conflicts of interest While experience as a practicing lawyer is helpful, it is important to ensure the individual does not have affiliations or relationships with lawyers or officials that could be perceived to pose a conflict of interest. Some organisations may choose not to use local observers and rely instead on international experts, due to the possibility of real or perceived bias.

Consider pairing local and foreign observers That said, local actors have advantages in terms of their understanding of local languages as well as domestic laws and trial procedures. To capitalise on the inside knowledge and adaptability advantages of local observers, as well as the international law expertise and impartiality of foreign observers, some organisations choose to have a foreign expert lead local observers in a monitoring project.

Provide monitors with support When monitors are not lawyers, it is best that a project be headed by a lawyer. In such a case, monitors generally record as much information as possible regarding proceedings, allowing the lead lawyer to pull out relevant information for use in reports. Where observers are inexperienced, organisations may wish to assign monitors in pairs so that they can help and learn from each other.

Other factors influencing selection include the candidate's previous experience conducting observations, ability to work with a team and availability on short notice (in some cases, hearings may be announced only days ahead). In addition, the Organisation for Security and Cooperation in Europe (OSCE) recommends that if organisations plan on partnering with judicial and governmental authorities in reforming laws, it is best if monitors have a full legal degree, as their observations and expertise will be taken more seriously.


PREPARE MONITORS FOR A TRIAL

Before a trial commences, provide a briefing package to monitors including the following:

  • Methods to be used when monitoring
  • Details of the case, including nature of the charges and relevant press reports
  • Information on how to approach challenges to access
  • Issues expected to be raised during the trial(s)
  • Policies regarding sharing information or making public statements before, during, or after the observation

Carry out a risk assessment to determine the level of threat to observers and how dangers can be mitigated both by the organisation and the observer. The potential for risk and recommended safety measures should be clearly communicated to the observer. If risks cannot be mitigated by reasonable action, the organisation should not conduct the monitoring mission.


INFORM AUTHORITIES OF A MONITORING MISSION

To avoid trouble with authorities, organisations (especially international groups) usually notify government officials at the appropriate bodies, such as the Ministry of Justice, the Office of the President, the Supreme Court and/or General Prosecutor's office that they will be monitoring a trial. As trials tend to be public, it is often unnecessary to ask permission; instead, organisations should simply inform the proper authorities that they will be assigning a monitoring mission to the trial.

In the preparation stages, it is also useful to prepare a programme paper that outlines the objectives of trial monitoring, the approximate duration of the project, the specific case or number of cases to be investigated, the issues that will be focused on and if possible, the names of individuals who will be monitoring trials. Such a paper can be also helpful in securing access to court proceedings and documents as well as bringing officials on board with the aims of the project. (As a bonus, a programme paper can be a helpful briefing tool for monitors and is often useful in securing funding from donors.)


SECURING ACCESS TO A TRIAL

Check the state's laws First off, it is important to examine the state's laws regarding public access to court proceedings, including the legal reasons for which the public may legitimately be excluded from attending a trial. It is also important to refer to international law when an organisation's right to access is challenged. The right to a public trial is protected under Article 10 of the Universal Declaration of Human Rights, as well as under Article 14 of the International Covenant on Civil and Political Rights.

Even where the right to public trial is overridden in the interests of protecting national security and/or witnesses, young people or victims, organisations should be able to secure access on grounds of their impartiality and role in protecting human rights principles. This argument has in the past permitted observers to attend closed military or security proceedings. The special right for human rights and legal monitors to observe trials is upheld by the United Nations Declaration on Human Rights Defenders.

Make the case for access Monitors should be trained so they can explain to court officials the legal right to access trials as well as the objectives and purposes of the monitoring program and other legal actors. When access is denied, monitors should request meetings with the judge of the case or the president of the court. In meetings with the judge or any other actors, it is helpful to have a programme paper to present. Representatives of the monitoring agency should be polite and reasoned and should explain the purpose of the mission, emphasising that the assessment is independent and impartial.

Record reasons for denial If the request is ultimately refused by the trial judge or court president, monitors should ask him or her to explain the legal basis as to why the right to a public trial is being withheld. By including the judge's denial and reasoning in a monitoring report, groups may be able to draw wider criticisms to the refusal, thus spurring officials to grant more open access in the particular case; furthermore, reporting on such incidents can aid groups as they push for open and transparent trials more broadly.


DURING THE TRIAL


TRIAL MONITORS’ CONDUCT

Non-intervention Non-intervention is the most important principle monitors should hold themselves to, so as not to undermine the independence of the court. Observers should never interrupt proceedings or interfere with the judicial process and should maintain impartiality at all times. Organisations should generally refrain from expressing opinions on the merits of the case (see exceptions to this rule in Evaluating a Case on Its Merits, below).

Neutrality To convey independence, monitors should sit in a neutral position in relation to the prosecution, defence and witnesses. In cases where this is not possible, observers may wish to request that an additional, neutral seat be designated for them in the courtroom.

Interaction It is recommended that trial monitors avoid interacting with the judicial actors inside the courtroom, though this may not always be possible. While some organisations may have a rule against engaging with legal actors in court proceedings, others may ask that if monitors must interact with the legal representatives of one side in a case, they should also introduce themselves to representatives on the other side to convey impartiality.

Confidentiality Monitoring organisations must also respect confidentiality when required by the court, for instance, to protect victims, young people or the accused. Judges will make it clear when information is protected by a publication ban, however when observers arrive late for court or acquire information or documents through secondary sources, they must be vigilant about ensuring that information is not protected by a publication ban before disseminating such information. Communicate the organisation's commitment to protecting private information verbally and in writing to a monitoring project's staff members. In addition, it can be helpful to include information about this commitment in a programme paper that can be distributed to administrators and officials who may be wary of releasing information.

Professionalism Monitors should always conduct themselves in a professional manner and treat all court actors with respect. Observers should arrive early enough to ensure they can locate the courtroom, and will not disrupt proceedings by arriving late.

Transparency Finally, monitors should make their presence and role known to the court to influence actors toward fairness and due process. Generally, observers should strive to sit in a prominent position so that actors can see a monitor is engaged and taking notes. (In some countries, note taking is prohibited for members of the public; in such cases, monitors should meet with the president of the court or trial judge to request an exception.)


EVALUATING A CASE ON ITS MERITS

The International Commission of Jurists (ICJ) writes, “observers generally have no role in evaluating the evidence and arguments put forward by the parties or in weighing up the guilt or innocence of the accused.” However, there are exceptions to this rule. One is when gross human rights violations have occurred (especially by high-level officials) and it is necessary to evaluate the evidence of the case to determine that the alleged crimes committed coincide with the seriousness of the charge. (For example, former and current government officials may be able to use their influence to downgrade charges.) In addition, evidence should be evaluated when journalists, human rights defenders, opposition members and others may be accused for political interests rather than in the interest of justice. Furthermore, when the proof behind charges is especially lacking, monitors will need to measure whether adequate evidence is presented by the prosecution.


CONDUCTING INTERVIEWS OUTSIDE THE COURTROOM

Court officials Generally, meeting with lawyers and other parties in a case is a helpful practice. Lawyers and other actors may be more willing to provide information and documents outside of the courtroom, and meetings provide monitors the opportunity to ask questions about legal matters related to the case. The ICJ recommends that organisations at least meet with the president of the court or trial judge, the prosecution and defence lawyers; however, it may be inappropriate for organisations to meet with either the prosecution or defence lawyer depending on the political nature of the case. It is important to meet with the court president or judge, as such a meeting will provide greater awareness of the monitoring project, and the judge or court president may act more fairly as a result. Defence and prosecution lawyers can be important sources of information and documents that may not be directly provided through the courts. The defence lawyer can be an especially helpful source when organisations are monitoring cases due to concerns that the trial will be unfair for the accused, however, it is best to meet with both the prosecution and defence to convey impartiality.

Other parties Interviews with additional parties can also be helpful, but should be weighed on a case-by-case basis. For instance, organisations may wish to meet with the state official behind the prosecution, especially in cases involving gross human rights violations. Organisations may also want to speak directly with the defendant if it is suspected that he or she has been subjected to ill treatment or torture. It's a good idea to meet with third parties involved in the proceedings, such as victims groups, as they can provide important documents on the case. In the case victims or vulnerable individuals are interviewed, observers must inquire about the person's security and take appropriate measures to ensure that such an interview will not put the individual at risk.

Parallel informal inquiries Finally, observing organisations may need to conduct parallel, informal inquiries when necessary, such as when it appears the judge is prejudiced; the prosecution seems to be providing impunity to perpetrators of human rights abuses; or the defence appears to be under pressure not to launch a rigorous defence. In such inquiries, the observer should undertake detailed interviews and cross check information with various sources.

In all interviewing situations, monitors should always introduce themselves as impartial and independent observers.


MAKING STATEMENTS OR RELEASING REPORTS DURING A TRIAL

Organisations may wish to release a public statement announcing the monitoring project and explaining its purposes to draw international attention to a case or legal issues. This may help ensure observers' security; however, public attention could also make it more difficult for monitors to conduct their work without interference from government or other parties. Therefore, approach public statements before or during the trial on a case-by-case basis. Organisations should be sure pre-trial statements or press conferences do not contain opinions or information that can come across as impartial or self-interested in the outcomes of the case(s).

Reports are usually not released until a trial is concluded. However when a particularly gross violation of fair trial rights has occurred that undermines the integrity of judicial system, organisations will generally release a report and/or hold a press conference mid-trial. Such reports, however, should still be based on legal norms and principles and what the flouting of these principles means to human rights as a whole and should not suggest an allegiance to one side of the case. If reports are released during a trial, organisations should be sure they are not sharing information that has been placed under a publication ban, such as the names of young people or the identity of witnesses.


AFTER THE TRIAL


REPORTING FINDINGS AND ANALYSIS

It is extremely important for organisations to publicise their findings and analyses and make recommendations to government and/or legal representatives when trials do not follow international human rights law. If an organisation observes a trial and then fails to publicly express their criticisms for fear of government reprisals, they risk “legitimising a flawed criminal justice process,” notes the OSCE. Reports should uphold the principles of monitoring that are important throughout the process, including impartiality and independence. In almost all cases, reports should be provided to the prosecutor's office, the Ministry of Justice, the Supreme Court and other relevant government officials.


TRIAL REPORT CHECKLIST

Organisations should include the following facts and evaluation in their findings:

  • General information on the human rights and political situation in the country
  • Background information (including physical/mental state) on the defendant in cases that appear to be politically motivated
  • Information on the victims in cases of gross human rights violations
  • An overview of the legal issues, such as international commitments, and an evaluation of the fairness of the trial, clearly citing applicable rights and laws
  • The objectives and methodology of the monitoring project
  • A list of the monitors and their qualifications

Organisations also often include recommendations that may be specific to a case and call for remedies such as a re-trial. General recommendations demand legal reforms to bring legal proceedings in line with international human rights and fair trial legislation. Groups should ensure their recommendations are grounded in the findings of their analysis. Recommendations should call for specific actions within specific time frames and should identify the provision or law that should be amended. In addition, recommendations should be targeted to the individual(s) who have the legal authority to act on them.

When the delayed release of a report is not likely to have negative repercussions to individuals involved in legal proceedings, groups may want to first show the report to the relevant authorities and invite their comments before publishing. This practice can encourage buy-in on recommendations. In addition, reports may be more effective when organisations release them in a press conference or encourage other stakeholders to contribute to the report in roundtable discussions.


EXAMPLES OF TRIAL MONITORING REPORTS

Gulf Centre for Human Rights (GCHR) and Human Rights Watch, with IFEX support, United Arab Emirates: Briefing Paper on Suppression of Free Expression, including Threats and Intimidation against the “UAE5”, (United Arab Emirates, 2011).

Organisation Mondiale Contre la Torture (OMCT), ETHIOPIA: The Situation of Human Rights Defenders From Bad to Worse, (2006).

Human Rights First, Trial Monitoring Report: The Disappearance of Somchai Neelaphaijit, (2006).

Human Rights Centre's Trial monitoring report on systemic issues in Georgia's judicial process, (Tbilisi, 2009).

Human Rights Watch's systemic report on the progress of judicial reforms in Rwanda, (2008).

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