4.
mission is not hampered by overly restrictive or overly
broad terms of reference. The necessary flexibility may be
accomplished, for example, by permitting the commission to amend its terms of reference as necessary. It is
important, however, for the commission to keep the public informed of any amendments to its mandate.
The commission’s staff
111. Commissions of inquiry should have impartial,
expert counsel. Where the commission is investigating
allegations of State misconduct, it would be advisable to
appoint counsel outside the Ministry of Justice. The chief
counsel to the commission should be insulated from political influence, through civil service tenure or as a
wholly independent member of the bar. The investigation
will often require expert advisers. Technical expertise
should be available to the commission in areas such as
pathology, forensic science, psychiatry, psychology, gynaecology and paediatrics. To conduct a completely impartial and thorough investigation, the commission would
almost always need its own investigators to pursue leads
and develop evidence. The credibility of an inquiry would
thus be significantly enhanced to the extent that the commission would be able to rely on its own investigators.
2. The power of the commission
108. Principles should set out the powers of the commission in a general manner. The commission specifically
needs the following:
(a) Authority to obtain all information necessary to
the inquiry including the authority to compel testimony
under legal sanction, to order the production of documents including State and medical records, and to protect
witnesses, families of the victim and other sources;
(b) Authority to issue a public report;
5. Protection of witnesses
(c) Authority to conduct on-site visits, including at the
location where the torture is suspected to have occurred;
112. The State shall protect complainants, witnesses,
those conducting the investigation and their families from
violence, threats of violence or any other form of intimidation (see section C.2 (d) above). If the commission concludes that there is a reasonable fear of persecution, harassment or harm to any witness or prospective witness,
the commission may find it advisable to hear the evidence
in camera, keep the identity of an informant or witness
confidential, use only evidence that will not risk identifying the witness and take other appropriate measures.
(d) Authority to receive evidence from witnesses and
organizations located outside the country.
3. Membership criteria
109. Commission members should be chosen for
their recognized impartiality, competence and independence as individuals as defined as follows:
6.
(a) Impartiality. Commission members should not be
closely associated with any individual, State entity, political party or other organization potentially implicated in
the torture. They should not be too closely connected to an
organization or group of which the victim is a member, as
this may damage the commission’s credibility. This
should not, however, be an excuse for blanket exclusions
from the commission, for instance, of members of large
organizations of which the victim is also a member or of
persons associated with organizations dedicated to the
treatment and rehabilitation of torture victims;
Proceedings
113. It follows from general principles of criminal
procedure that hearings should be conducted in public,
unless in-camera proceedings are necessary to protect the
safety of a witness. In-camera proceedings should be
recorded and the sealed, unpublished record kept in a
known location. Occasionally, complete secrecy may be
required to encourage testimony, and the commission
may want to hear witnesses privately, informally or without recording testimony.
(b) Competence. Commission members must be capable of evaluating and weighing evidence and exercising
sound judgement. If possible, commissions of inquiry
should include individuals with expertise in law, medicine
and other appropriate specialized fields;
7.
Notice of inquiry
114. Wide notice of the establishment of a commission and the subject of the inquiry should be given. The
notice should include an invitation to submit relevant
information and written statements to the commission and
instructions to persons willing to testify. Notice can be
disseminated through newspapers, magazines, radio, television, leaflets and posters.
(c) Independence. Members of the commission should
have a reputation in their community for honesty and fairness.
110. The objectivity of the investigation and the
commission’s findings may, among other things, depend
on whether it has three or more members rather than one
or two. A single commissioner should in general not conduct investigations into torture. A single, isolated commissioner will generally be limited in the depth of the
investigation that he or she can conduct alone. In addition,
a single commissioner will have to make controversial
and important decisions without debate and will be particularly vulnerable to State and other outside pressure.
8.
Receipt of evidence
115. Commissions of inquiry should have the power
to compel testimony and produce documents, plus the
authority to compel testimony from officials allegedly
involved in torture. Practically, this authority may involve
the power to impose fines or sentences if government officials or other individuals refuse to comply. Commissions
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