C. Operations and procedures
i. An open and public inquiry
As a matter of principle, all aspects of the work of a commission of inquiry should be made public. So far as possible, the media and public should be given access to the proceedings and to the evidence on which the Melo Commission bases its findings.
However, the openness of the investigation and of the information it obtains needs to be balanced against the confidentiality of personal information. The media and public may be excluded from all or part of the proceedings, the identities of victims and witnesses may be withheld, and material may be omitted from the Commission’s report at the request of individual victims or witnesses, or if the Commission considers that such measures are necessary to protect them.
The Melo Commission may gather information by taking written or oral statements and by conducting hearings. It may conduct both public and confidential hearings. As a general rule, the hearings should be opened to the public. However, the Commission may decide to hold a hearing in camera (i.e., to make it confidential), or to prevent one or more individuals from being present, if the security of alleged perpetrators, victims or witnesses is deemed to be threatened. In this case, it may also decide to keep confidential any information relating to the proceedings. The Commission must, however, permit any victim who has an interest in the proceedings concerned to be present.
ii. A victim-centred approach
International standards on the treatment of victims of crimes under international law and other serious crimes focus on three key state responsibilities: to treat victims with humanity; to provide effective protection mechanisms; to ensure effective support.
The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power states that victims “should be treated with compassion and respect for their dignity” and that:
“[T]the responsiveness of judicial and administrative processes to the needs of victims shall be facilitated by taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation.”(4)
Principle 10 of the Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law states:
“Victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. The State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation.”
Complainants, witnesses, those conducting the investigation and other involved in any way should be protected from violence, threats of violence and any other form of intimidation. The Melo Commission should be granted all necessary human and material resources to devise and implement witness protection measures with the cooperation, if necessary and appropriate, of the DOJ’s Witness Protection Program. Protection measures should be available for all witnesses and the families of victims, staff and others associated with the investigation. In determining which protection measures to take, the Commission should take into account the views of the witnesses on which measures they require and whether the protection measures are proportionate to the seriousness of the risk. The Commissioners should be responsible for overseeing the implementation of all protection measures and a procedure should be established whereby a witness who is not satisfied with protection measures may apply to the Commissioners to address the issue.