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Judgment No. 2232

Decision

1. THE DECISION TAKEN BY THE CONFERENCE OF THE STATES PARTIES OF THE OPCW ON 22 APRIL 2002 IS SET ASIDE.
2. THE OPCW SHALL PAY THE COMPLAINANT MATERIAL DAMAGES CALCULATED AS PER CONSIDERATION 17 OF THE PRESENT JUDGMENT.
3. THE ORGANISATION SHALL ALSO PAY HIM 50,000 EUROS IN MORAL DAMAGES.
4. IT SHALL PAY HIM 5,000 EUROS IN COSTS.

Consideration 9

Extract:

The complainant, who had been the Organisation's Director- General, impugns the decision to terminate his appointment. The Organisation raises an objection to receivability, arguing that the complainant was not a staff member. "The defendant [...] considers that since the particular case of the Director-General of the Organisation was not expressly provided for in the texts on which the Tribunal's jurisdiction is based, an express provision recognising its jurisdiction would have been necessary. It points out that [another international organisation] (UNESCO), having realised that it had no statutory provision nor any contractual stipulation attributing jurisdiction in the event of a dispute involving its Director-General, decided in 1999 to include such a clause in the contract it signed with him. whilst the Tribunal does not deny that UNESCO thereby clarified difficulties which were liable to arise, it does not view that as authority for the reverse proposition that contracts containing no such clause, entered into by other organisations with their respective chief administrative officers, must be deemed to exclude the jurisdiction of the Tribunal."

Keywords

complaint allowed; decision; grounds; status of complainant; organisation; receivability; competence of tribunal; exception; written rule; staff regulations and rules; interpretation; no provision; provision; rebuttal; contract; termination; executive head

Consideration 12

Extract:

The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. The Organisation raises an objection to receivability, arguing that the decision impugned before the Tribunal is not an administrative decision, but essentially a political one. The Tribunal holds that "the complainant was an international civil servant who was entitled to appeal to the Tribunal against a decision to terminate his appointment. That decision must be viewed as an administrative decision, even though it was taken by the Conference of the States parties."

Keywords

complaint allowed; decision; grounds; international civil servant; receivability; right of appeal; iloat; member state; interpretation; rebuttal; termination; executive head; executive body

Consideration 13

Extract:

The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. The Organisation raises an objection to receivability because the matter was not referred to the Appeals Council. "In the present case, that procedure was not and clearly could not have been followed. Indeed, it is hard to imagine how the Director-General, stripped of his functions, could have appealed to the Appeals Council established under his own authority, against a decision of the Conference of the States parties, with a view to obtaining a final decision by the new Director-General. [...] An appeal to the Appeals Council was inconceivable, and the impugned decision was clearly a final decision - within the meaning of Article VII of the Tribunal's Statute [...] in that situation, a direct appeal to the Tribunal [...] was clearly the only remedy available to the complainant."

Reference(s)

ILOAT reference: ARTICLE VII OF THE TRIBUNAL'S STATUTE

Keywords

procedure; complaint allowed; decision; absence of final decision; grounds; receivability; internal appeals body; competence; direct appeal to tribunal; internal appeal; member state; iloat statute; rebuttal; termination; executive head; executive body; purpose

Consideration 16

Extract:

The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. "In accordance with the established case law of all international administrative tribunals, the Tribunal reaffirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organisations. In the case of heads of organisations, that independence is protected, inter alia, by the fact that they are appointed for a limited term of office. To concede that the authority in which the power of appointment is vested - in this case the Conference of the States parties of the Organisation - may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organisations' activities are founded [...], by rendering officials vulnerable to pressures and to political change. The possibility that a measure of the kind taken against the complainant may, exceptionally, be justified in cases of grave misconduct cannot be excluded, but such a measure, being punitive in nature, could only be taken in full compliance with the principle of due process, following a procedure enabling the individual concerned to defend his or her case effectively before an independent and impartial body."

Keywords

complaint allowed; international civil servant; organisation; internal appeals body; tribunal; exception; iloat; case law; general principle; adversarial proceedings; right to reply; independence; member state; breach; appointment; fixed-term; termination; serious misconduct; hidden disciplinary measure; discretion; executive head; limits; executive body; condition; safeguard



 
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