Relatório da CI - I.Introduction

I. A. Establishment of the Commission

1. On 8 June 2006, the Senior Minister and Minister for Foreign Affairs and Cooperation of Timor-Leste wrote to the Secretary-General of the United Nations inviting the United Nations to “establish an independent special inquiry commission” to “review the incidents on 28 and 29 April and on 23, 24 and 25 May, and other related events or issues which contributed to the crisis”.
2. The Secretary-General responded favourably to the invitation. On 12 June 2006, he
requested the United Nations High Commissioner for Human Rights to establish such a
commission. His decision was communicated to the Security Council on 13 June 2006 (see S/PV.5457). On 20 June 2006, the Security Council, in resolution 1690 (2006), welcomed the initiative of the Secretary-General to ask the High Commissioner for Human Rights to establish an independent special commission of inquiry and requested the Secretary-General to keep the Council informed on the subject matter.
3. On 27 June 2006, the Secretary-General wrote to the President of Timor-Leste, Xanana Gusmão, informing him that he had requested the High Commissioner for Human Rights to establish an Independent Special Commission of Inquiry “to review the incidents on 28-29 April and 23, 24 and 25 May and other related events or issues which contributed to the recent crisis” (“the Commission”). The Secretary-General also informed the President that he had appointed three commissioners who would convene in Timor-Leste for a maximum total of five weeks over a maximum of two visits, and who would be supported by a secretariat based in Dili. The Secretary-General attached to his letter the terms of reference for the Commission.

B. Terms of reference

4. The terms of reference set out the mandate of the Commission as follows:
“ (a) To establish the facts and circumstances relevant to incidents on 28 and 29 April, 23, 24 and 25 May and related events or issues that contributed to the crisis, including issues related to the functioning of the security sector;
“(b) To clarify responsibility for the above-mentioned events;
“(c) To recommend measures to ensure accountability for crimes and serious violations of human rights allegedly committed during the above-mentioned period, taking into account that the Government of Timor-Leste considers that the domestic justice system, which has the participation of international judges, prosecutors and defence lawyers, should be the primary avenue of accountability for these alleged crimes and violations;
“(d) To report its findings within three months of its establishment through the United
Nations High Commissioner for Human Rights to the Secretary-General and the National Parliament of Timor-Leste.”
5. The terms of reference make clear that the Commission would enjoy the full cooperation of the Government of Timor-Leste and would be provided with the necessary facilities to enable it to discharge its mandate. In particular, the Commission was to be guaranteed:
(a) Freedom of movement throughout the territory of Timor-Leste, including facilities of transport;
(b) Unhindered access to all places and establishments, and freedom to meet and interview representatives of governmental and local authorities, military authorities, community leaders, non-governmental organizations and other institutions, and any such person whose testimony was considered necessary for the fulfilment of its mandate;
(c) Free access to all sources of information, including documentary material and physical evidence;
(d) Appropriate security arrangements for the personnel and documents of the Commission;
(e) Protection of victims and witnesses and all those who were in contact with the
Commission in connection with the inquiry, including the assurance that no such person
would, as a result of such contact, suffer harassment, threats, acts of intimidation, illtreatment or reprisals;
(f) Privileges, immunities and facilities necessary for the independent conduct of the
inquiry. In particular, the Commissioners and staff would enjoy the privileges and
immunities accorded to experts on missions and officials under the Convention on the
Privileges and Immunities of the United Nations.

C. Composition of the Commission

6. The Commission is composed of three members: Mr. Paulo Sérgio Pinheiro (Brazil,
Chairperson), Ms. Zelda Holtzman (South Africa) and Mr. Ralph Zacklin (United Kingdom of Great Britain and Northern Ireland), supported by a secretariat headed by an Executive Director, Mr. Luc Côté (Canada). The Commissioners were appointed by the Secretary-General upon the recommendation of the High Commissioner for Human Rights based on their expertise, integrity and independence. They were selected for their expertise in:
• Investigating serious human rights violations;
• Investigating crimes;
• Security sector reform.

7. The secretariat was established and assisted by the Office of the United Nations High
Commissioner for Human Rights (OHCHR) and located in the former United Nations House, Rua de Caicoli, Dili, Timor-Leste. The secretariat consisted of criminal investigators, human rights monitors, legal advisers, a political adviser, an expert in military sector reform, an expert in police sector reform, a data-management officer, security officers and other administrative support staff.
The secretariat was headed by an Executive Director assisted by an executive assistant, who both arrived in Dili with a few other staff members on 7 July 2006, marking the official beginning of the work of the Commission.

D. Working methods

8. The Commissioners met with the Executive Director and some members of the secretariat in Geneva from 3 to 5 July 2006 to develop a common understanding of the terms of the mandate and discuss relevant issues. These included the working methods of the Commission as well as the timetable of the visits of the Commissioners to Timor-Leste. The Commissioners and the Executive Director also had meetings with a number of officials at OHCHR, including the High Commissioner. Further, the Commissioners met with representatives of the Governments of Australia, Brazil, China, Japan, Malaysia, New Zealand, the Philippines, Portugal, the Republic of Korea, Thailand, the United Kingdom and the United States of America and of the European
Union.

9. The Commissioners agreed that the first component of the mandate - “to establish the facts and circumstances relevant to incidents on 28 and 29 April and 23, 24 and 25 May and related events or issues that contributed to the crisis” - meant that the Commission must act as a factfinding body. The first step was to gather and assess the information contained in the various reports and documents made by other investigative bodies. Those bodies included: the Prosecutor General of Timor–Leste; the Armed Forces, or FALINTIL - Forças Armadas de Defesa de Timor- Leste (F-FDTL); Policia Nacional de Timor-Leste (the National Police) (PNTL); other government bodies of Timor-Leste, United Nations bodies, the Australian Federal Police and Armed Forces;
other law enforcement agencies present in Timor-Leste (Malaysia, New Zealand and Portugal); other intergovernmental organizations and non-governmental organizations (NGOs). Other background materials were also to be collected and analysed in order to identify issues that contributed to the crisis. The Commission would then verify the veracity of the information in these materials and reports, as well as establish further facts, by interviewing witnesses, officials and other persons occupying positions of authority, as well as persons in police custody or detained in prison, and by visiting places where crimes were reportedly perpetrated or other incidents took place. This process would allow the Commission to establish a clear narrative of the incidents that unfolded in April and May 2006.
10. As far as “issues related to the functioning of the security sector” are concerned, the
Commissioners agreed that it was important to analyse the dysfunctions in the operations of both F-FDTL and PNTL during the crisis in order to understand the apparent collapse of the security sector. Although it was understood that the mandate of the Commission did not extend to the making of recommendations as to the global reform of the security sector, any dysfunction within the two organs of the security sector relevant to institutional responsibility for the events of April and May clearly did fall within the mandate.
11. The Commissioners understood the second component of the mandate, “to clarify
responsibility for the above-mentioned events”, as involving both individual and institutional responsibility. To clarify individual responsibility “for crimes and serious violations of human rights allegedly committed during the above-mentioned period”, the Commission had to collect a reliable body of material that indicated which individuals might be responsible for the crimes committed. The Commission was not endowed with the powers of a court or a prosecutor. In particular, the Commission lacked the coercive powers of subpoena, search and seizure, and warrants. Its powers were therefore limited to recommending that some individuals be prosecuted
under domestic criminal law and/or be held accountable under any existing institutional
mechanisms of a disciplinary nature.
12. In this regard, an issue arose with respect to the standard of proof that the Commission would apply in its investigations. In view of the limitations inherent in its powers, the Commission decided that it could not comply with the normal criminal standard of proof beyond reasonable doubt. 1 Rather, the Commission concluded that the most appropriate standard was that of reasonable suspicion. This would necessitate a reliable body of material consistent with other verified circumstances tending to show that a person may reasonably be suspected of involvement in the commission of a crime. Obviously the Commission would not make final judgements as to criminal guilt. It would make an assessment of possible suspects in preparation for future investigations and possible indictments by a prosecutor.
13. The Commissioners decided that in order to recommend “measures to ensure accountability
for crimes and serious violations of human rights allegedly committed during the above-mentioned period, taking into account that the Government of Timor-Leste considers that the domestic justice system, which has the participation of international judges, prosecutors and defence lawyers, should be the primary avenue of accountability for these alleged crimes and violations”, they would need to make a preliminary assessment of the existing Timor-Leste domestic justice system.
In particular, issues of the capacity and independence of and the level of competency within the justice system would need to be examined in order to determine whether that system could deal appropriately and in a timely manner with the recommendations of the Commission.
14. The Commission conducted its work in an impartial and independent manner in accordance with international standards. These principles have governed the working methods of the Commission in its interaction with Governments, international organizations, NGOs and individuals.

E. The visits of the Commissioners to Timor-Leste

15. The Commissioners made their first visit to Timor-Leste from 4 to 11 August 2006. The Commissioners had meetings with the President of Timor-Leste, the Prime Minister, the Minister for Foreign Affairs and Cooperation, the Prosecutor General, the Bishop of Dili, the office of the 1 Article 114 (1) of the República Democrática de Timor-Leste Criminal Procedure Code states that there is no burden of proof upon the defendant in a criminal case. Article 114 (2) states that it is incumbent upon the prosecutor to sustain the indictment in trial and the court may order, either on a discretionary basis or at request, that any evidence the knowledge of which is deemed necessary to uncover the truth and to make a proper decision on the case be produced,
namely in respect of civil liability. While there is no express statement of the standard of proof beyond reasonable doubt, article 278 enumerates a list of factors to be considered in the decision-making process. This implies a consideration of proven facts on the standard of proof beyond reasonable doubt, as consistent with international
criminal and human rights law.
Provedor for Human Rights and Justice (Ombudsman), the Chief of F-FDTL, the Chief
Commissioner of PNTL, the former Prime Minister, the Former Defence Minister, the leaders of the main political parties Frente Revolucionária do Timor-Leste Independente (Revolutionary Front for an Independent East Timor) (FRETILIN), Partido Democrático (Democratic Party) (PD), Partido Social Democrático (Social Democratic Party) (PSD), Associação Social Democrata Timorense (Social Democratic Association of Timor-Leste) (ASDT), the Special Representative of the Secretary-General and other United Nations representatives from different agencies, representatives of the diplomatic community, representatives of the petitioners, former members of the Commission for Reception, Truth and Reconciliation and both an international prosecutor and a judge working in the domestic judicial sector. The Commissioners also visited places where crimes were alleged to have been committed.
16. The second visit of the Commissioners to Timor-Leste took place from 4 to 15 September 2006. The Commissioners had meetings with the President of Timor-Leste, the Prime Minister, the Minister of Justice, the Chief Justice of the Court of Appeal, the Chief of F-FDTL, the General Commander of PNTL, the former Prime Minister, the former Minister of the Interior, the Special Representative of the Secretary-General, representatives from the United Nations Integrated Mission in Timor-Leste (UNMIT) transition team, numerous NGOs and a leader of an armed group in Liquiça. The Commissioners visited the Judicial Training Centre and attended a hearing at the Dili District Court. Numerous working sessions were held with members of the secretariat in
order to prepare the final draft of the report.

F. Cooperation of civil and military authorities of Timor-Leste, other concerned
Governments, the United Nations, non-governmental organizations and other
representatives of civil society

17. The Commission acknowledges the excellent cooperation of the authorities of Timor-Leste, both civilian and military, the diplomatic community, the United Nations Office in Timor-Leste (UNOTIL), UNMIT, other agencies of the United Nations and NGOs. The Commission had access to all individuals and all places it required. The Commission also received numerous documents requested from all the organizations mentioned. More than 200 interviews were conducted by the secretariat and more than 1,000 documents were received. Finally, the Commission expresses its gratitude to all individuals from both Timor-Leste and abroad who agreed to be interviewed by its members or to provide documents.

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