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Due process (187,-666)

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Keywords: Due process
Total judgments found: 170

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  • Judgment 4060


    127th Session, 2019
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, an ICC Senior Security Officer, contests the decision to temporarily withdraw his authorisation to carry a firearm.

    Consideration 18

    Extract:

    The ICC’s failure to provide the complainant with adequate reasons for the 12 June 2014 decision constitutes a breach of the complainant’s due process rights and, accordingly, the decision is unlawful. This would warrant an order setting aside the decision, however, as noted above, such an order is unnecessary as the decision is no longer in force. The complainant is nonetheless entitled to moral damages for the breach of his due process rights.

    Keywords:

    damages; due process; duty to substantiate decision; moral injury; motivation;



  • Judgment 4050


    126th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to impose on him the disciplinary sanction of relegation in step.

    Consideration 14

    Extract:

    The claims of breach of due process are unfounded.
    [...]
    (b) The complainant claims that he should have had 15 days to respond to the new allegation of misconduct regarding the charge of breach of confidentiality, as it was not included in the Article 100 report. In a similar situation the Tribunal concluded as follows: “The Tribunal notes that the Disciplinary Committee addressed this issue explicitly in the proceedings and in its final report. The Disciplinary Committee has the prerogative to immediately address something which occurs during the proceedings, in the interest of procedural efficiency. As the complainant was given the opportunity to comment on the alleged breach of confidentiality, the principle of due process was respected. The complainant had adequate time to prepare his defence.” (See Judgment 3971, under 15.) These conclusions are applicable to the present case.

    Reference(s)

    ILOAT Judgment(s): 3971

    Keywords:

    disciplinary procedure; due process; duty to inform; right to reply;



  • Judgment 4011


    126th Session, 2018
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss her for misconduct.

    Consideration 9

    Extract:

    The basic applicable principles regarding the right to due process at the investigative stage of disciplinary proceedings were stated by the Tribunal as follows in Judgment 2771, consideration 15:
    “The general requirement with respect to due process in relation to an investigation – that being the function performed by the Investigation Panel in this case – is as set out in Judgment 2475, namely, that the ‘investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made’. At least that is so where no procedure is prescribed. Where, as here, there is a prescribed procedure, that procedure must be observed. Additionally, it is necessary that there be a fair investigation, in the sense described in Judgment 2475 and that there be an opportunity to answer the evidence and the charges.”
    However, due process must also be observed at all other stages of disciplinary proceedings. Accordingly, the following was stated in Judgment 2786, consideration 13:
    “Due process requires that a staff member accused of misconduct be given an opportunity to test the evidence relied upon and, if he or she so wishes, to produce evidence to the contrary. The right to make a defence is necessarily a right to defend oneself before an adverse decision is made, whether by a disciplinary body or the deciding authority (see Judgment 2496, under 7).”

    Reference(s)

    ILOAT Judgment(s): 2475, 2496, 2771, 2786

    Keywords:

    disciplinary procedure; due process; inquiry; investigation;

    Consideration 13

    Extract:

    In the Tribunal’s view, the material contradictions in their evidence required providing the complainant with an opportunity to challenge Ms E.L.’s statements. The failure to provide that opportunity at any stage of the disciplinary proceedings breached the complainant’s due process rights. Accordingly, these charges could not have been proved beyond a reasonable doubt as the Tribunal’s case law requires (see, for example, Judgment 3882, under 14).

    Reference(s)

    ILOAT Judgment(s): 3882

    Keywords:

    beyond reasonable doubt; due process;



  • Judgment 4005


    126th Session, 2018
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss her complaint of harassment.

    Consideration 6

    Extract:

    In support of her position, the complainant relies on the Tribunal’s statement that “[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 Judgment 3216, consideration 6), and that the non-disclosure of evidence in the absence of a reason in law “constitutes a serious breach of the complainant’s right to procedural fairness” (see Judgment 3264, consideration 16). The Tribunal’s case law also relevantly states 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 [her or] him” (see Judgment 2700, consideration 6).

    Reference(s)

    ILOAT Judgment(s): 2700, 3216, 3264

    Keywords:

    adversarial proceedings; disclosure of evidence; due process;



  • Judgment 3995


    126th Session, 2018
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the measures taken by IFAD following its investigation into his allegations of harassment.

    Consideration 5

    Extract:

    [T]he Tribunal considers that IFAD was wrong to refuse the complainant’s request for disclosure of the reports drawn up by the AUO at the end of the investigation into the conduct of the two supervisors targeted by his complaint.
    The Tribunal has consistently held that a staff member must, as a general rule, have access to all the evidence on which the competent authority bases its decision concerning her or him (see, for example, Judgments 2229, under 3(b), 2700, under 6, 3214, under 24, or 3295, under 13). This implies, amongst other things, that an organisation must forward to a staff member who has filed a harassment complaint the report drawn up at the end of the investigation of that complaint (see, for example, Judgments 3347, under 19 to 21, and 3831, under 17).
    Of course, this obligation to disclose must be balanced against the need to respect the confidential nature of some aspects of an inquiry, particularly that of the witness statements gathered in the course of the inquiry. As the Tribunal’s case law has confirmed, such confidentiality may be necessary in order to ensure witnesses’ protection and freedom of expression (see, in particular, Judgments 3732, under 6, and 3640, under 19 and 20). Moreover, in this case the confidentiality of some information related to the investigation was expressly required by the [applicable] provisions on this matter [...].

    Reference(s)

    ILOAT Judgment(s): 2229, 2700, 3214, 3295, 3347, 3640, 3732, 3831

    Keywords:

    confidential evidence; disclosure of evidence; due process; harassment;



  • Judgment 3964


    125th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to impose on him the disciplinary measure of dismissal for serious misconduct.

    Consideration 18

    Extract:

    The complainant’s argument is that the decision of the President was based on evidence “not available to the complainant”. However this plea conflates evidence with the record of evidence. It is not suggested by the complainant in his pleas that he or his legal representatives did not attend the oral hearing. Accordingly, he was aware of the evidence and it was thus available to him even if, as a matter of fact, he had not been furnished with a transcript. This plea is unfounded and is rejected.

    Keywords:

    due process; evidence;



  • Judgment 3888


    124th Session, 2017
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss her with immediate effect for misconduct.

    Consideration 24

    Extract:

    The complainant objects to two deputy members participating in the disciplinary proceedings in place of two members who were not available for the rescheduled hearing date. The Tribunal notes that the complainant was notified on 3 February 2014 of the composition of the Disciplinary Committee, including of the names of the Chairman, the four members, and the four deputy members. She had five days from that notification to object to any of the members or deputy members in accordance with Article 98(5) of the Service Regulations, which provides, in relevant part, that “[w]ithin five days of the drawing of lots for forming the Disciplinary Committee, the employee concerned may make objection in respect of any of its members other than the Chairman”. As she did not object to the deputy members at that time, she was time-barred from objecting to their participation at the later date when she was informed that they would attend the hearing in place of the two unavailable members.

    Keywords:

    composition of the internal appeals body; disciplinary procedure; due process;



  • Judgment 3883


    124th Session, 2017
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants contest the implementation of new salary scales as from March 2012 in Bangkok.

    Consideration 20

    Extract:

    [A]n organisation is bound by the rules it has itself issued until it amends or repeals them (Judgment 963, consideration 5).

    Reference(s)

    ILOAT Judgment(s): 963

    Keywords:

    due process; general principle; patere legem;



  • Judgment 3872


    124th Session, 2017
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him for misconduct.

    Consideration 6

    Extract:

    The Tribunal’s case law requires due process to be observed in disciplinary proceedings prior to imposing a disciplinary sanction against a staff member. As to due process in the context of an investigation in such proceedings, the Tribunal stated as follows in Judgment 2771, consideration 15 [...].

    Reference(s)

    ILOAT Judgment(s): 2771

    Keywords:

    disciplinary procedure; due process;



  • Judgment 3863


    124th Session, 2017
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the termination of his appointment on disciplinary grounds.

    Consideration 18

    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). The complainant is also entitled to have an opportunity to test the evidence and produce evidence to the contrary (see, for example, Judgment 2786, consideration 13).

    Reference(s)

    ILOAT Judgment(s): 2700, 2786

    Keywords:

    confidential evidence; due process; evidence;



  • Judgment 3862


    124th Session, 2017
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the termination of her appointment on disciplinary grounds.

    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)

    ILOAT Judgment(s): 2700

    Keywords:

    confidential evidence; due process; evidence;



  • Judgment 3848


    124th Session, 2017
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to renew his special short-term contract for serious misconduct.

    Consideration 9

    Extract:

    The Director General’s unlawful imposition of a disguised disciplinary measure deprived the complainant of the requirements of due process and consultation with the Staff Association Committee that would have been open to him in an adversarial proceeding had a disciplinary measure been imposed.

    Keywords:

    due process; hidden disciplinary measure;

    Considerations 6-7

    Extract:

    Although it is true that the non-renewal of a contract is not one of the disciplinary measures that the Director General may impose pursuant to Staff Regulation 10(b), it does not follow, as IOM contends, that the decision not to renew the complainant’s contract was a discretionary decision. A finding of misconduct is one that is only made in the context of a disciplinary process. For example, in contrast with an administrative determination regarding unsatisfactory service, misconduct must be proved beyond a reasonable doubt, a standard of proof that is only applicable in a disciplinary proceeding. Further, a finding of misconduct is the final step in the disciplinary process before the imposition of a disciplinary measure.
    In the present case, it is not disputed that the decision not to renew the complainant’s contract was based solely on the finding of misconduct. In these circumstances, the only conclusion that can be drawn is that the non-renewal of the complainant’s contract was not an administrative discretionary decision, it was a disguised disciplinary measure and was unlawful. The case law consistently states that even if an organization’s regulations, rules and other relevant documents do not provide for formal disciplinary procedures, the disciplinary process requires that “before deciding a disciplinary sanction” the concerned staff member must be given “ample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against him” (see Judgment 3682, consideration 12).

    Reference(s)

    ILOAT Judgment(s): 3682

    Keywords:

    case law; disciplinary procedure; due process; hidden disciplinary measure; misconduct;



  • Judgment 3846


    124th Session, 2017
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant objects to the working conditions to which she was subjected during a secondment and contends that the ITU breached the rules on performance appraisals.

    Consideration 6

    Extract:

    [T]he refusal of the Appeal Board to authorise the filing of a rejoinder by the complainant does not constitute a breach of the adversarial principle, because the [organisation]’s reply did not disclose any genuinely new facts. The Appeal Board was under no obligation to call the witnesses whom the complainant wished it to hear, since it was for that body to decide whether such a step was appropriate.

    Keywords:

    adversarial proceedings; due process; internal appeals body;



  • 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 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 3757


    123rd Session, 2017
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him summarily.

    Consideration 6

    Extract:

    The impugned decision rightly emphasises that adducing material evidence is especially difficult in cases of corruption or market manipulation where nothing is put in writing by either party and everything often takes place without the involvement of third persons who might be called as witnesses. A staff member who is accused of such dealings is certainly entitled to due process offering him every opportunity to defend his interests, and the burden of proof always falls upon the Administration. However, the latter’s investigation will not be required to culminate in the establishment of absolute proof. All that is needed is a set of precise and concurring presumptions removing any reasonable doubt that the acts in question actually took place (see Judgments 1384, under 10, 3137, under 6, and 3297, under 8).

    Reference(s)

    ILOAT Judgment(s): 1384, 3137, 3297

    Keywords:

    burden of proof; due process; evidence;



  • Judgment 3742


    123rd Session, 2017
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the direct appointment of Ms S. to the position of Director, Office of Support to Decentralization.

    Consideration 16

    Extract:

    [T]he Appeals Committee did not provide that information to the complainant, in breach of its duty of procedural fairness. 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 3264, under 15). The complainant will be awarded moral damages [...].

    Reference(s)

    ILOAT Judgment(s): 3264

    Keywords:

    due process; internal appeal; moral injury;



  • 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:

    [T]he complainant insisted on the production of a full unredacted copy of the Internal Auditor’s report. But, as the Tribunal said in Judgment 3640, under 20:
    “[I]n 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).”

    Reference(s)

    ILOAT Judgment(s): 3640

    Keywords:

    due process;



  • Judgment 3725


    123rd Session, 2017
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the disciplinary measures imposed on him following an investigation into alleged misconduct.

    Consideration 17

    Extract:

    [P]ursuant to Administrative Circular 87, the task of the JDC is to determine whether the facts and conclusions of IOS provide sufficient bases of proof of misconduct beyond a reasonable doubt, and, in that way safeguards a staff member’s right to due process as it provides a forum in which the staff member may defend herself or himself and test the evidence provided by IOS against the standard of proof beyond a reasonable doubt.

    Keywords:

    disciplinary measure; due process; evidence;



  • Judgment 3688


    122nd Session, 2016
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to abolish her post and to separate her from service.

    Consideration 31

    Extract:

    WHO’s failure to disclose the relevant documents to the complainant in the internal appeal proceedings breached the adversarial principle or the principle of equality of arms, which constitutes a breach of due process entitling the complainant to moral damages.

    Keywords:

    damages; disclosure of evidence; due process; moral injury;



  • Judgment 3682


    122nd Session, 2016
    Global Fund to Fight AIDS, Tuberculosis and Malaria
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to terminate his appointment for gross misconduct.

    Consideration 16

    Extract:

    [T]he complainant was [...] informed of the precise allegations against him and was provided with summaries of the witnesses’ testimonies relied upon by the investigator. The complainant was given three opportunities to be heard, respond to the allegations against him and provide his version of events before a finding of gross misconduct was reached [...]. Thus, the complainant’s due process rights were respected even though he was not permitted to attend witness interviews and participate in the examination of the evidence (see, also, Judgment 3083, consideration 3).

    Reference(s)

    ILOAT Judgment(s): 3083

    Keywords:

    disciplinary measure; due process; inquiry; investigation;

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Last updated: 24.01.2022 ^ top