Judgment No. 2391
1. The decision of 6 November 2003 of the Secretary-General of the ITU is set aside.
2. The case is referred back to the Secretary-General for a new decision.
3. The defendant shall pay the complainant 2,000 Swiss francs in costs.
4. All other claims are dismissed.
The complainant was issued a written censure. "Before the Appeal Board, [he] argued that [this] decision [...] was taken in breach of the principle of proportionality. In its report, the Board recommended that the parties seek a compromise solution in the light of that principle. [T]he Secretary-General did not follow the recommendation of the Appeal Board [...]. He was therefore under an obligation to state the reasons why he was disregarding that recommendation and instead maintaining the initial sanction, which is the second most serious, particularly so as to enable the Tribunal to check whether the principle of proportionality had been observed (see Judgment 2339, under 5). As the Secretary-General has not satisfied that obligation, his decision [...] must be set aside on the grounds that no reason has been given for the chosen sanction and the case must be referred back to him for a new decision."
Jugement(s) TAOIT: 2339
complaint allowed; complaint allowed in part; duty to substantiate decision; internal appeals body; recommendation; report; settlement out of court; decision quashed; case sent back to organisation; general principle; organisation's duties; proportionality; breach; disciplinary measure; warning; judicial review; executive head; consequence; refusal