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Confidential evidence (149, 150,-666)

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Keywords: Confidential evidence
Total judgments found: 85

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  • Judgment 3831


    124th Session, 2017
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss her allegations of harassment.

    Consideration 17

    Extract:

    A consideration of the [organisation]’s claim of confidentiality in this case is unnecessary. The fact that it voluntarily produced a copy of the [...] report with minimal redactions in its reply in these proceedings before the Tribunal completely undermines the claim of confidentiality.

    Keywords:

    confidential evidence; delay; disclosure of evidence;

    Consideration 29

    Extract:

    [T]his case illustrates the difficulties that accrue from a failure to disclose materials in a timely manner. In addition to compromising a staff member’s ability to challenge an administrative decision in the internal appeal, it also undermines the purpose of the pleadings and negatively impacts the adjudicative process before the Tribunal.

    Keywords:

    confidential evidence; disclosure of evidence; due process;



  • Judgment 3768


    123rd Session, 2017
    ITER International Fusion Energy Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to renew his contract following the abolition of his post.

    Consideration 13

    Extract:

    The Tribunal considers that the [...] Organization’s failure to disclose to the complainant “the documents related to staffing strategies” on the ground that “they constitute confidential managerial documents” was a procedural flaw. These are the documents which would have assisted the complainant, in the context of the mediation process, to understand the actions, rationale and decision to abolish his post. While the [...] Organization disclosed them to the Mediator, it refused to disclose them to the complainant. This was in breach of the principle of procedural fairness as well as the Organization’s duty of care to the complainant entitling him to moral damages [...].

    Keywords:

    confidential evidence; disclosure of evidence;



  • Judgment 3755


    123rd Session, 2017
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to terminate his continuing appointment owing to the abolition of his position.

    Consideration 10

    Extract:

    The Tribunal has repeatedly held that a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) a decision affecting a personal interest worthy of protection. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. But such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers (see Judgment 3688, under 29, and the case law cited therein).
    The Tribunal has also found that the report of the body responsible for conducting a reassignment process […] is analogous not to the records of confidential discussions, but to the final report of a selection committee which may be disclosed to the staff member concerned, if necessary with redactions to ensure the confidentiality of third parties (see Judgment 3290, under 24).

    Reference(s)

    ILOAT Judgment(s): 3290, 3688

    Keywords:

    adversarial proceedings; confidential evidence; disclosure of evidence; duty to inform; evidence; right to be heard;



  • Judgment 3732


    123rd Session, 2017
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss his allegations of harassment and abuse of authority as unfounded.

    Consideration 6

    Extract:

    In consideration 19 [of Judgment 3640] the Tribunal noted the established case law “according to which ‘a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him’ and, ‘under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality’ (see Judgment 2229, under 3(b), to which Judgment 3295, under 13, refers)”.
    However, the Tribunal went on to observe in consideration 20 that: “[A]s is expressly indicated by the use of the terms ‘as a general rule’ and ‘under normal circumstances’ in the above excerpts of judgments, the case law in question does allow some exceptions to the principle which it establishes.”

    Reference(s)

    ILOAT Judgment(s): 2229, 3295, 3640

    Keywords:

    adversarial proceedings; confidential evidence; right to be heard;



  • Judgment 3640


    122nd Session, 2016
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the disciplinary measure of his summary dismissal in the wake of a sexual harassment complaint filed against him by one of his colleagues.

    Considerations 17-21

    Extract:

    [T]he complainant contends with greater cogency that he was never provided with the full content of the witness statements forming the basis of the accusations against him, nor was he informed of the witnesses’ names. It is true that the witness statements were not appended to the report drawn up at the end of the investigation and, as mentioned in a footnote in that document, the identity of the witnesses was deliberately not disclosed. [...]
    [T]his strict observance of confidentiality by UNESCO might be seen as departing from the Tribunal’s established case law according to which “a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him” and, “under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality” (see Judgment 2229, under 3(b)), to which Judgment 3295, under 13, refers). [...]
    [W]here disciplinary proceedings are brought against an official who has been accused of harassment, testimonies and other materials which are deemed to be confidential pursuant to provisions aimed at protecting third parties need not be forwarded to the accused official, but she or he must nevertheless be informed of the content of these documents in order to have all the information which she or he needs to defend herself or himself fully in these proceedings. As the Tribunal has already had occasion to state, in order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see Judgment 2771, under 18).
    In the instant case, the investigation report contained an extremely detailed description of all the instances of unwelcome behaviour by the complainant towards the 21 women identified as victims of his conduct, and their names were given in almost all cases. The complainant was therefore plainly apprised of the content of all the testimony taken during the investigation and of the e-mails which he had not been allowed to see. Furthermore, although, as stated above, the identity of the witnesses was not revealed to him, it is obvious that most of the information recorded in the report could only have come from the 21 persons concerned themselves. The complainant was therefore given a real opportunity to dispute the various items of evidence gathered in the course of proceedings against him. Moreover, it is clear from the above-mentioned comments which he submitted to the Organization on 18 November 2011 to rebut the charges of which he had been notified, that he had in fact been able to prepare them without any particular difficulty. Indeed, he himself described these comments as “clarifications and objections to the accusations of sexual harassment against [him], based on the whole file, and in particular on the IOS investigation report”.

    Reference(s)

    ILOAT Judgment(s): 2229, 2771, 3295

    Keywords:

    adversarial proceedings; confidential evidence; disciplinary procedure; due process; evidence; harassment; inquiry; investigation; right to be heard; sexual harassment; witness;



  • Judgment 3490


    120th Session, 2015
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision not to grant her request for retroactive reclassification of her former post.

    Consideration 13

    Extract:

    "This case illustrates very well the negative consequences flowing from an unfounded refusal to make the requisite disclosure. It is well established in the case law that a “staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him”. Additionally, “[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality” (see Judgment 2700, under 6; see also Judgment 3264, under 15)."

    Reference(s)

    ILOAT Judgment(s): 2700, 3264

    Keywords:

    confidential evidence; disclosure of evidence;



  • Judgment 3487


    120th Session, 2015
    World Trade Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to allow a “Note for the File” to remain on his personal file.

    Consideration 13

    Extract:

    "The complainant’s plea that his right to confidentiality was breached is well founded. In this regard, the Tribunal finds, as did the JAB, that the contents of the Note were confidential and sensitive. As such, it should have been transmitted by the author or by her secretary directly to a senior member of HRD, rather than by way of the budget co-ordinator."

    Keywords:

    confidential evidence;



  • Judgment 3380


    118th Session, 2014
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges his non-selection for a post following a competition and alleges perpetual administrative bias towards him.

    Consideration 12

    Extract:

    "[O]n the grounds of confidentiality, the Administration [...] refused to give [...] the complainant [copies of certain documents he had requested]. Nonetheless, the documents were submitted to the RBA. [O]ne of the documents was clearly material and, in fact, was, later in the appeal process, relied on by the HBA in its finding that the replacement of the interested party on the Selection Committee was due to conflict of interest and not bias. The failure to disclose this document constitutes a breach of procedural fairness."

    Keywords:

    confidential evidence;



  • Judgment 3295


    116th Session, 2014
    Pan American Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.

    Consideration 13

    Extract:

    "The complainant alleges that he was not given a copy of the Ethics Officer’s investigation report and the records of witness interviews. It is well established in the Tribunal’s case law that a “staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him” (see Judgment 2229, under 3(b))."

    Reference(s)

    ILOAT Judgment(s): 2229

    Keywords:

    confidential evidence; duty to inform; inquiry; investigation; investigation report; official; right;



  • Judgment 3287


    116th Session, 2014
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who reported his suspicions that someone was unlwafully accessing his professional email account, impugned the decision to deny him access to the investigation report.

    Considerations 15 and 16

    Extract:

    "The complainant cited one judgement of the United Nations Administrative Tribunal to support a request for the provision of documents in a broadly analogous situation [...]. However the complainant cited no judgment of the Tribunal or another international administrative tribunal that has held, in the face of a provision such as paragraph 10, that an organisation must or even should make available a report containing confidential information gathered from various sources during an investigation to a person who requested it even if that person is centrally involved in the investigation. Paragraphs 9 and 10 are fundamental to maintaining a system of internal investigation that is likely to be effective and reveal to the Administration the true position surrounding any particular issue or matter which is the subject of internal audit. It is true that there is a general trend in the case law of the Tribunal towards the production rather than non-disclosure of documents in an Administration’s possession which may bear upon a staff member’s position within the organisation (see, for example, Judgment 1756, consideration 10(b)). [...]
    [T]his case provides an example of where a specific provision effectively denying disclosure for the purposes of promoting confidential communications with an internal auditor should be maintained fully and given effect. [...] The complainant had no right to be provided with a copy of the IAOD report and accordingly there was no relevant delay for which he may be entitled to damages."

    Keywords:

    applicable law; confidential evidence; disclosure of evidence; refusal;



  • Judgment 3272


    116th Session, 2014
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully challenges the decision not to appoint her to a vacant post due to procedural flaw and violation of her right to due process.

    Consideration 15

    Extract:

    "The Tribunal has consistently affirmed the confidentiality of the records of the discussions regarding the merits of the applicants for a post. However, this does not extend to the reports regarding the results of the selection process with appropriate redactions to ensure the confidentiality of third parties."

    Keywords:

    adversarial proceedings; confidential evidence; disclosure of evidence; due process; duty to inform; organisation's duties; procedural flaw; right to be heard; selection board; selection procedure;



  • Judgment 3264


    116th Session, 2014
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully impugns the decision not to renew her contract after an extension of her probationary period and is granted damages.

    Judgment keywords

    Keywords:

    breach; complaint allowed; confidential evidence; decision quashed; disclosure of evidence; discretion; due process; duty to inform; extension of contract; general principle; good faith; judicial review; non-renewal of contract; organisation's duties; performance report; probationary period; procedural flaw; respect for dignity; right to reply; unsatisfactory service; work appraisal;

    Considerations 15-16

    Extract:

    It is well established in the Tribunal’s case law that a “staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him”. Additionally, “[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality” (see Judgment 2700, under 6). It also follows that a decision cannot be based on a material document that has been withheld from the concerned staff member (see, for example, Judgment 2899, under 23).

    Although Article 10.3 of the Staff Regulations provides that the “proceedings of the [Reports] Board shall be regarded as secret”, this alone does not shield a report of the Board from disclosure to the concerned official. In the absence of any reason in law for non-disclosure of the report, such non-disclosure constitutes a serious breach of the complainant’s right to procedural fairness.

    Reference(s)

    ILOAT Judgment(s): 2700, 2899

    Keywords:

    breach; confidential evidence; disclosure of evidence; due process; procedural flaw;



  • Judgment 3216


    115th Session, 2013
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests her performance appraisal for its content and on the basis of what she considers to be procedural flaws.

    Consideration 6

    Extract:

    "A fundamental principle of the adversarial process is the right to know and have an opportunity to respond to the evidence adduced by the opposing party (see Judgments 1815, under 5, and 2700, under 6). Upon receipt of the report, the Board, which ultimately relied upon it, was obliged to advise the complainant of the receipt of new evidence and give her an opportunity to respond before taking it into consideration."

    Reference(s)

    ILOAT Judgment(s): 1815, 2700

    Keywords:

    adversarial proceedings; advisory body; case law; confidential evidence; disclosure of evidence; duty to inform; general principle; organisation's duties; right to be heard; staff member's interest;



  • Judgment 3214


    115th Session, 2013
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant unsuccessfully impugns the decision not to extend his appointment beyond retirement age.

    Consideration 24

    Extract:

    The complainant, who requested the extension of his appointment beyond normal retirement age, takes the Organisation to task for not sending him the Selection Committee’s opinion or the minutes of its deliberations showing its proposal.
    "The Tribunal’s case law has it that, as a general rule, a staff member must have access to all evidence on which the competent authority bases its decisions concerning him or her, especially the opinion issued by such an advisory organ. A document of that nature may be withheld on grounds of confidentiality from a third person but not from the person concerned (see, for example, Judgments 2229, under 3(b), or 2700, under 6).
    [T]he Tribunal observes that the complainant does not say that he asked for the document in question. While the Organisation could not lawfully have refused to grant such a request, it was under no obligation to forward the document of its own accord (see Judgment 2944, under 42). The position would have been different only if – as is not the case here – the reasons given by the competent authority for its decision had been confined to a mere reference to the advisory body’s opinion."

    Reference(s)

    ILOAT Judgment(s): 2229, 2700, 2944

    Keywords:

    advisory body; advisory opinion; age limit; communication to third party; confidential evidence; decision; disclosure of evidence; discretion; duty to inform; exception; extension beyond retirement age; general principle; grounds; official; organisation's duties; proposal; refusal; request by a party; retirement; right; selection board;



  • Judgment 3196


    115th Session, 2013
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the implicit rejection of her request for disclosure of a medical report.

    Judgment keywords

    Keywords:

    complaint dismissed; confidential evidence; disclosure of evidence; medical opinion;



  • Judgment 3160


    114th Session, 2013
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully impugns the Director-General's decision to reject his appeal concerning breaches of confidentiality.

    Considerations 11 and 15

    Extract:

    "This Tribunal has recognised staff members’ right to privacy. An example is found in Judgment 2271. [...]
    [T]he issue is whether there was a breach of privacy or confidentiality as a result of the disclosure to the Director of PSM/HRM of the fact that the complainant had made an Appendix D claim. The answer is readily found in Judgment 3004 at consideration 6. [...] The disclosure of the mere fact that the claim had been made involved a breach of confidentiality. Being in a similar situation, the complainant should be awarded 4,000 euros as moral damages for breach of confidentiality."

    Reference(s)

    ILOAT Judgment(s): 2271, 3004

    Keywords:

    breach; communication to third party; confidential evidence; lack of consent; moral injury; organisation's duties;



  • Judgment 2992


    110th Session, 2011
    Centre for the Development of Enterprise
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    The CDE requests that certain documents be removed from the file on the grounds that they are confidential and that the complainant obtained them unlawfully.
    "The Tribunal will not accede to the request for the removal of items of evidence, since the Centre has not proved that this request is justified by the protection of interests more worthy of protection that the complainant's interest in defending herself (see Judgment 2700, under 7)."

    Reference(s)

    ILOAT Judgment(s): 2700

    Keywords:

    claim; confidential evidence; discontinuance; flaw; lack of evidence; organisation; organisation's interest; refusal; staff member's interest;



  • Judgment 2899


    108th Session, 2010
    European Free Trade Association
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 23

    Extract:

    "By [...] basing his decision on an essential document without having given the person concerned an opportunity to refute its content, the competent authority breached the right to be heard which every staff member possesses and his decision was thus tainted by a major procedural flaw (in this connection, see for example Judgments 69, under 2, and 1881, under 18 to 20)."

    Reference(s)

    ILOAT Judgment(s): 69, 1881

    Keywords:

    breach; confidential evidence; disclosure of evidence; official; procedural flaw; right to reply;



  • Judgment 2751


    105th Session, 2008
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 3 and 6

    Extract:

    "Statements made in legal proceedings are privileged, whether those statements are made in writing in the pleadings or orally in the course of a hearing. The consequence is that, even if defamatory, they cannot be the subject of legal proceedings or sanction. The privilege, sometimes referred to as 'in court privilege', exists, not for the benefit of the parties or their representatives, but because it is necessary for the proper determination of proceedings and the issues that arise in their course. In Judgment 1391 the Tribunal recognised that the privilege attaches to its proceedings, as well as those of internal appeal bodies. [...]
    [T]he Tribunal's consideration of the extent of the privilege that attaches to statements made in the course of internal appeal proceedings or proceedings before the Tribunal has concentrated on statements made by staff members. However, the privilege is the same in the case of statements made by or on behalf of defendant organisations, and they must be allowed a similar degree of freedom in what they say and the manner of its expression. Even so, a statement will constitute a perversion of a defendant organisation's right of reply if it is wholly irrelevant and it can only serve an improper purpose."

    Reference(s)

    ILOAT Judgment(s): 1391

    Keywords:

    abuse of power; breach; confidential evidence; consequence; disciplinary measure; formal requirements; freedom of speech; iloat; internal appeals body; judicial review; misuse of authority; official; oral proceedings; organisation; privileges and immunities; procedure before the tribunal; purpose; reply; respect for dignity; right; settlement out of court;



  • Judgment 2700


    104th Session, 2008
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "As the Tribunal has consistently held, the staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see Judgment 2229, under 3(b)).
    As the Organization points out, there may indeed be some special cases in which a higher interest stands in the way of the disclosure of certain documents. But such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers (see Judgment 1756, under 10)."

    Reference(s)

    ILOAT Judgment(s): 1756, 2229

    Keywords:

    case law; confidential evidence; decision; disclosure of evidence; duty to inform; exception; general principle; grounds; organisation's duties; organisation's interest; purpose; refusal;

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