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Judgment No. 3862

Decision

1. The ICC shall pay the complainant moral damages in the amount of 20,000 euros.
2. It shall also pay the complainant 5,000 euros in costs.
3. All other claims are dismissed.

Summary

The complainant challenges the termination of her appointment on disciplinary grounds.

Judgment keywords

Keywords

termination; disciplinary procedure

Consideration 11

Extract:

The case law of the Tribunal establishes that, as a general rule, a staff member must have access to all evidence on which the authority bases (or intends to base) its decision against her or him. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see Judgment 2700, consideration 6, cited recently in Judgments 3688, 3613, 3586, 3490, 3380, 3347, 3290, 3285, 3272 and 3264, for example).

Reference(s)

Jugement(s) TAOIT: 2700

Keywords

evidence; confidential evidence; due process

Consideration 18

Extract:

Without descending into detail, the Tribunal is satisfied that it was open to the ICC not to disclose certain information to the complainant because of the pending criminal proceedings (see Judgments 1756, consideration 10, and 2700, consideration 6).

Reference(s)

Jugement(s) TAOIT: 1756, 2700

Keywords

evidence; confidential evidence

Consideration 20

Extract:

The executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached.

Keywords

motivation

Consideration 20

Extract:

[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). It is equally well settled that the “Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact” (see Judgment 2699, consideration 9).

Reference(s)

Jugement(s) TAOIT: 2699, 3649

Keywords

burden of proof; disciplinary procedure

Considerations 26-27

Extract:

The complainant argues that this conclusion involves an error of law and the provisions concerning a potential conflict of interest are engaged when the conflict might improperly influence the performance of official duties and responsibilities. A Court Clerk does not perform duties which might be influenced by such a conflict and, accordingly, the provisions did not operate to require disclosure. However this argument involves too narrow a reading of the provisions which, particularly in relation to a court, should be construed purposefully. That is to say, they should be construed in a way that achieves the objects of the provisions which, in large measure, are intended to preserve and maintain the integrity of the organisation to which they apply. Courts must not only administer justice fairly and impartially (while this is obviously true of judges it is also true of the administrative structures supporting the judges) but must also be seen to be doing so.
The obligation to disclose serves several purposes. One is that once the conflict is disclosed remedial action might be taken by persons in authority to offset the effect or possible effect of bias created by the conflict. That might include the review or revision of decisions taken by a conflicted staff member or the allocation of tasks to a staff member who was not conflicted. Another is to enable persons in positions of authority (including supervisors) to counsel staff members about how best to manage and deal with the conflict of interest.

Keywords

conflict of interest

Consideration 29

Extract:

This leads to a question of what relief should be afforded the complainant. She has demonstrated a procedural flaw which denied her due process. However the findings of the Registrar and his decision to terminate the complainant’s appointment were open to him. In the circumstances, the complainant is entitled to moral damages [...].

Keywords

moral damages

Consideration 30

Extract:

The parties have made additional submissions with respect to the confidentiality of some of the pleadings and evidence that have been submitted to the Tribunal. The Tribunal has taken note of these submissions and has referred to the evidence that it considers necessary in order to achieve justice between the parties.

Keywords

evidence; confidential evidence



 
Dernière mise à jour: 07.08.2017 ^ haut