Chapter V. Decisions of Administrative Tribunals of the United Nations and related intergovernmental organizations

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1. decisions of the United Nations administrative tribunal2

   1. Judgement No. 1320 (27 July 2007): Applicant v The Secretary-General of the United Nations3

      Disciplinary procedure—Question whether evidence was illegally obtained— Possible application of foreign law by the Tribunal in case of lacuna in the United Nations law—Burden of proof on the Applicant to demonstrate a violation of a foreign law—Forging of documents not befitting an international civil servant— Prima facie case of misconduct—Proportionality of sanctions may be assessed by the Tribunal—Rights of due process of the Applicant

      The Applicant entered service at the United Nations on 22 May 1973 as an Usher at the United Nations Office at Geneva (UNOG) at the G-1 level on a short-term contract

      1 In view of the large number of judgements which were rendered in 2007 by the administrative tribunals of the United Nations and related intergovernmental organizations, only those judgements which address significant issues of United Nations administrative law or are otherwise of general interest have been summarized in the present edition of the Yearbook For the full text of the complete series of judgements rendered by the tribunals, namely, Judgements Nos 1317 to 1345 of the United Nations Administrative Tribunal, Judgments Nos 2569 to 2666 of the Administrative Tribunal of the International Labour Organization, Decisions Nos 357 to 377 of the World Bank Administrative Tribunal, and Judgments No 2007–1 to 2007–8 of the International Monetary Fund Administrative Tribunal, see, respectively, documents AT/DEC/1317 to AT/DEC/1345; Judgements of the Administrative Tribunal of the International Labour Organization: 102nd and 103rd Sessions; World Bank Administrative Tribunal Reports, 2007; and International Monetary Fund Administrative Tribunal Reports, Judgements No. 2007–1 to 2007–8

      2 The Administrative Tribunal of the United Nations is competent to hear and pass judgment upon applications alleging non-observance of contracts of employment of staff members of the United Nations Secretariat or of their terms of appointment In addition, the Tribunal’s competence extends to the United Nations Joint Staff Pension Fund (including cases from all specialized agencies that participate in the Fund and which have accepted the jurisdiction of the Tribunal in Pension Fund cases), the United Nations Programmes and Funds, such specialized agencies and related organizations that have accepted the competence of the Tribunal (the International Maritime Organization and the International Civil Aviation Organization), the staff of the Registries of the International Court of Justice, the International Tribunal for the Law of the Sea, and the staff of the International Seabed Authority For more information about the United Nations Administrative Tribunal and the full texts of its judgements, see http:// untreaty un org/UNAT/main_page htm

      3 Jacqueline R Scott, Vice-President; Julio Barboza and Brigitte Stern, Members

      Thereafter, his contract was renewed and he received a series of promotions At the time of the events which gave rise to his Application, he held a permanent appointment and was serving at the P-5 level, as a Security Sergeant, Security and Safety Section (SSS), UNOG

      On 22 January 1999 and 17 December 1999, two anonymous letters containing accusations of highly insulting language against United Nations officials were faxed and copied to all SSS staff A preliminary investigation was initiated by SSS Investigators and it revealed that both anonymous letters had been faxed from a public machine of the Palais des Nations, and that the transmission fees charged to send the faxes were paid for with a Euro card and a Visa card On 21 December 1999, an SSS Investigator obtained informal information that the Applicant was the holder of the Visa card used to pay for the anonymous fax of 17 December 1999, information that was later confirmed by the Corner Bank Card Centre

      On 6 January 2000, the Director of Administration, UNOG, informed the Applicant of his decision to suspend him with full pay for an initial period of one month, pending investigation, in accordance with paragraph 5 of ST/AI/371, entitled ‘Revised Discipline Measures and Procedures’ On 17 January 2000, the Applicant admitted that he was the holder of the Visa card but produced a copy of an ‘avis d’opération’ from his bank, purporting to show that he had reported the loss of his Visa card on 8 December 1999 How-ever, he refused to produce any further information on the matter, including the original avis d’opération. On 4 February 2000, the Applicant was informed that his suspension with full pay would be extended for a further month At the same time, as the preliminary investigation was not completed, the Applicant was requested once more to provide additional information concerning the alleged loss of the Visa card, and that, otherwise, the Administration would directly contact the Applicant’s bank with respect to the avis d’opération submitted by the Applicant On 7 March 2000, the Applicant resumed work and was reassigned outside SSS

      By letter dated 7 July 2000, the Director of Administration informed the Applicant that the investigation had been entrusted to the Office of Internal Oversight Services (OIOS) The investigation was effectively done only on 24 January 2001 The latter contacted the Applicant’s bank, which confirmed that the Applicant was the holder of the Visa card and attested that he had reported the loss of his Visa card on 28 December 1999

      On 28 December 2001, the Applicant was informed that pursuant to the OIOS report, a disciplinary procedure was initiated, and on 30 July 2003, the case was transferred by OHRM to the Joint Disciplinary Committee (JDC) in Geneva In its report dated 1 June 2004, the JDC rendered its conclusions on the charges against the Applicant, namely to have sent two anonymous insulting letters by fax to UNOG officials; and to have submitted a forged bank document On 19 July 2004, the Under-Secretary-General for Management informed the Applicant that the Secretary-General agreed with the findings and conclusions of the JDC, and had decided to accept its unanimous recommendation to demote him by one level, with no possibility of promotion for two years, and to impose a written censure for misconduct On 18 December 2004, the Applicant filed the present Application with the Tribunal He contended that the Administration had relied on illegally obtained evidence concerning the ownership of credit cards in violation of Swiss and French banking laws, and thus, that such evidence and all conclusions inferred from that should be stricken from the dossier He further claimed that the sanctions imposed on him had been

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      disproportionate to his alleged conduct, and were occasioned by prejudice, malice and discrimination by the Administration and some of its officials

      The Tribunal recalled that the internal laws of the United Nations should prevail and were the relevant legal basis upon which the Tribunal operated However, where there is a lacuna in the internal laws, as in this case where the relevant legal instruments make no mention of banking secrecy or evidence obtained in such manner, the Tribunal was entitled, if not obliged, to consider general principles of law, and as such, it may take cognisance of foreign law, and grant it evidentiary value However, the Tribunal is not obliged to have knowledge of foreign law invoked before it, and the onus is, then, on the Applicant to demonstrate that the information in question was specifically protected by the laws of France and Switzerland regarding banking secrecy and to provide detailed explanation of the laws in question Further, the Tribunal recalled that the application of foreign law is highly complex and then no diligent Applicant would limit himself to making sweeping assertions on the nature and scope of certain concepts of foreign law and expect the Tribunal to proceed on such a fragile basis

      With respect to privacy, the Tribunal noted that the Applicant had not invoked any regulation or rule of the internal law of the United Nations and that he did not address the basic premise of whether any privacy right with respect to information printed upon a credit card was waived in the course of a credit card transaction as the merchant may have an automatic record of the cardholder’s name Therefore, the Tribunal found that the Applicant has failed to carry his burden of proving that it was illegal, per se, for the banks to provide the information in question

      The Tribunal observed that the Applicant himself, quite apart from the question of banking secrecy, provided sufficient evidence to justify the sanction imposed upon him In the course of the preliminary investigation, the Applicant presented and relied upon a document which had either been altered, or erroneously issued by the bank At the very least, the Applicant knew it was erroneous and misleading The bank, when asked to authenticate the document, informed the Administration that there was an obvious discrepancy in the dates Thus, the Tribunal was in no doubt that the alleged loss of the Applicant’s Visa card was not communicated to the bank on 8 December, but on the 28th of that month, well after the second fax had been sent Finally, it found suspicious that the Applicant refused to provide investigators with the original avis d’opération issued by the bank, which might have proven whether the document, as presented to the Organization, had been tampered with

      Thus, the Tribunal found that the Applicant’s explanation of the avis d’opération was, at the very least, disingenuous and that he not only failed to prove his case but also committed a serious violation which was far from the conduct befitting an international civil servant An important fact was thus established: the Applicant presented a possibly forged, or, at best, inaccurate and...