Judgment No. 4660
Decision
1. The decision of the Secretary General of Interpol of 12 August 2020, as well as that of 20 June 2018, are set aside.
2. Interpol shall pay the complainant material damages calculated as indicated in consideration 22 of the judgment.
3. The Organization shall pay the complainant moral damages in the amount of 40,000 euros.
4. It shall also pay him 8,000 euros in costs.
5. All other claims are dismissed.
Summary
The complainant challenges the Secretary General’s decision to dismiss him summarily without indemnities on disciplinary grounds.
Judgment keywords
Keywords
complaint allowed; disciplinary procedure; summary dismissal
Consideration 2
Extract:
[W]hile a complaint made directly to the Tribunal is indeed usually irreceivable, the case law allows for an exception to be made to that rule where a complainant shows that the requirement to exhaust internal remedies has the effect of paralysing the exercise of her or his rights. A complainant is thus entitled to file a complaint directly with the Tribunal against the initial decision which she or he intends to challenge where the competent bodies are not able to determine the internal appeal within a reasonable time having regard to the circumstances, provided that she or he has done her or his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a final decision within a reasonable time (see, in particular, Judgments 4271, consideration 5, 4200, consideration 3, 3558, consideration 9, 2039, consideration 4, and 1486, consideration 11).
However, the Tribunal considers that, as the complainant rightly submits, the conditions allowing this jurisprudential exception to be applied are satisfied in the present case.
Reference(s)
ILOAT Judgment(s): 1486, 2039, 3558, 4200, 4271
Keywords
direct appeal to tribunal
Consideration 6
Extract:
In view of the adoption of the aforementioned decision of 12 August 2020 during the proceedings before the Tribunal, which the complainant challenged in his rejoinder and on which the parties were able to express their views in their submissions, the Tribunal considers that it is appropriate to treat the complaint as being directed against that final decision (see, in particular, for comparable situations, Judgments 4065, consideration 3, and 2786, consideration 3).
Reference(s)
ILOAT Judgment(s): 2786, 4065
Keywords
impugned decision
Consideration 8
Extract:
[T]he Joint Disciplinary Committee’s opinion [...] shows that, when establishing the existence of particular facts and assessing the seriousness of the misconduct with which the complainant was charged, the Committee relied to a large extent on video footage of the incident [...] taken by a closed-circuit camera installed at the security post. The Committee used that footage to assess the complainant’s behaviour for almost two minutes before the unfortunate shot was fired, during which, according to the Committee, he stood by while his colleague carelessly handled the weapon that he had just given him. In the first place, this contradicted the account that the complainant gave in memoranda addressed to the Organization’s senior management and during his hearing and, in the second place, showed that he had failed to appreciate the danger of the situation.
However, it is clear from the details contained in the Committee’s opinion that the video footage was watched by only two of the three members of the Committee, who did so [...] between the Committee’s meetings. The Tribunal has already ruled in a similar case that such a practice is irregular in its very principle. Making clear that each member of a collegiate body has an individual responsibility to be fully engaged in the fact-finding process in the case before it, which involves the assessment of the evidence of those facts in terms of its admissibility, reliability, accuracy, relevance and weight, the Tribunal held that the whole panel of such a body is required to consider that evidence and that this responsibility cannot be delegated to one or more of its members (see Judgment 3272, consideration 13). This holding, which was applied to a joint appeals body, must also apply to a collegiate body dealing with disciplinary matters such as Interpol’s Joint Disciplinary Committee. The Tribunal sees no reason here to depart from the case law in question, which seems to it to be salutary, since it is unacceptable for a member of an administrative committee to deliberate on a case without having examined for herself or himself a piece of evidence examined by the other members – which is thereby placed, by definition, in the file of that case – especially if, as in the present case, that committee actually uses the piece of evidence in question as a foundation for its opinion. The procedure followed was therefore flawed on that account.
Reference(s)
ILOAT Judgment(s): 3272
Keywords
evidence; due process; disciplinary body
Consideration 9
Extract:
[A]lso with regard to the video footage [...], the complainant takes issue with the fact that he himself was not able to view it, even though the Joint Disciplinary Committee had accepted it into evidence, and that he was therefore not able to defend himself effectively at his hearing before that committee, where he was questioned about the facts brought to light by that footage. That plea must also be accepted. Staff Rule 10.3.2(5) provides that “[t]he official concerned [...] shall have access to all documents and forms of evidence submitted to the Joint Committees”, bearing in mind that, although it appears that it was at the initiative of the Committee itself that certain members viewed the footage in question, that footage must obviously be considered as evidence submitted to the Committee for the purposes of this provision. This statutory requirement is in line with the Tribunal’s case law, applicable even where there is no explicit provision, under which a staff member must, as a general rule, have access to all evidence on which an authority bases or intends to base a decision that affects her or him (see, for example, Judgments 4343, consideration 13, 3640, consideration 19, 3295, consideration 13, and 2229, consideration 3(b)). This case law, which aims to allow the staff member concerned to comment on the evidence, applies to video footage as it does to any other piece of evidence, it being noted in this respect that, although such a recording by definition captures an objective reality, it is nonetheless likely to give rise to explanations and comments that may influence the way its content is evaluated.
It is not disputed that the complainant was not invited to view the footage in question, even though part of its content was used in evidence against him. The Organization maintains that this does not mean that the procedure followed was flawed, since the complainant was informed of the substance of the content of this footage during his hearing before the Committee and was questioned during that hearing about the facts that it revealed, which thus enabled him to express his views on this piece of evidence. However, this argument will be dismissed, as the Tribunal considers that in the present case it was essential, for the complainant to comment meaningfully thereon, that he be able to view the content of the footage for himself and that he be afforded this opportunity prior to his hearing in order to allow him time to prepare his defence. Lastly, while the Organization seeks to argue that the complainant had not requested access to the footage in question, that objection is irrelevant as the complainant had not been notified in advance of the Committee’s intention to use this piece of evidence or of its very existence, which at most he could have suspected.
Reference(s)
ILOAT Judgment(s): 2229, 3295, 3640, 4343
Keywords
disclosure of evidence; due process
Consideration 10
Extract:
[T]he opinion of the Joint Appeals Committee of [...] shows that the Committee did not respond to the complainant’s procedural objections, including those repeated in the complaint before the Tribunal and discussed above. The Committee merely stated in its opinion, without even mentioning these objections, that “the Organization [...] applied the established procedure under the Staff Manual for imposing disciplinary measures, including the establishment of a JDC [Joint Disciplinary Committee]”. Such a brief and generic formulation does not provide any insight into the reasons why the Committee dismissed the objections in question or even make it possible to ascertain whether it actually examined them.
Keywords
report of the internal appeals body
Consideration 16
Extract:
Under settled case law of the Tribunal, “[t]he disciplinary authority within an international organisation has a discretion to choose the disciplinary measure imposed on an official for misconduct. However, its decision must always respect the principle of proportionality which applies in this area” (see, for example, Judgments 4504, consideration 11, 3971, consideration 17, 3944, consideration 12, and 3640, consideration 29).
Reference(s)
ILOAT Judgment(s): 3640, 3944, 3971, 4504
Keywords
proportionality; disciplinary measure
Consideration 20
Extract:
The Tribunal considers that, in view of the time that has passed since the events giving rise to the case and the fact that the complainant held a fixed-term appointment, and taking into account the fact that the complainant’s misconduct led to a loss of confidence in him by Interpol – as robustly asserted by the Organization in its submissions – which, given the nature of that misconduct, is based on reasons that can only be regarded as legitimate, it is not appropriate, in the circumstances of the case, to order the complainant’s reinstatement in the Organization (see in particular, with regard to the use of these various criteria in assessing the appropriacy of reinstatement in the event that a dismissal on disciplinary grounds is set aside, Judgments 4457, consideration 24, 4310, consideration 13, 4063, consideration 11, and 3364, consideration 27).
Reference(s)
ILOAT Judgment(s): 3364, 4063, 4310, 4457
Keywords
reinstatement
Consideration 23
Extract:
The sanction of summary dismissal without termination indemnities imposed on the complainant also caused him obvious moral injury since it seriously damaged his honour and professional reputation of itself and inevitably caused him a psychological shock and a feeling of anxiety about losing his job.
Although an examination of the evidence does not support a finding that, as the complainant maintains, his departure from Interpol’s Headquarters on the day of the notification of this sanction also took place in conditions which violated his dignity, this moral injury was nevertheless further aggravated by the breach of his rights resulting from the various defects, identified above, which tainted the disciplinary proceedings and the internal appeal procedure.
Keywords
moral injury; disciplinary measure
Consideration 24
Extract:
It is settled case law that officials are entitled to have their appeals examined with the necessary speed, in particular having regard to the nature of the decision which they wish to challenge (see, for example, [...] Judgments 4457, consideration 29, 4310, consideration 15, and 4063, consideration 14).
In the present case, two years elapsed between the complainant lodging his internal appeal on 20 August 2018 and his receipt of notification of the Secretary General’s decision of 12 August 2020, which eventually ruled on that appeal after the complaint had been filed.
[T]he Tribunal finds this delay unreasonable having regard to the nature of the case, since it concerned a summary dismissal without indemnities on disciplinary grounds.
Reference(s)
ILOAT Judgment(s): 4063, 4310, 4457
Keywords
moral injury; disciplinary procedure; travel time
Consideration 3
Extract:
As the complainant lodged his internal appeal on 20 August 2018, a period of 18 months had passed when he filed his complaint with the Tribunal on 27 February 2020. Such a delay must be regarded as unreasonable in the circumstances, since the appeal in question concerned the disciplinary sanction of summary dismissal without indemnities, that is a decision with serious repercussions for the complainant, and the case therefore merited priority treatment by its very nature. This is particularly true given that in this case the Secretary General departed from the recommendation of the Joint Disciplinary Committee in choosing a more severe sanction and, if only for this reason, the complainant’s appeal could not be considered prima facie as devoid of any substance. Furthermore, although the Organization submits that the delay in examining the complainant’s appeal can be explained in part by the difficulties faced by the Joint Appeals Committee in operating owing to lockdown measures during the Covid-19 pandemic, the Tribunal notes that this justification cannot apply to the period prior to 27 February 2020, since the measures referred to were not implemented by the Organization until March 2020.
Keywords
time limit; disciplinary procedure; delay in internal procedure
Consideration 15
Extract:
By imposing a disciplinary measure of summary dismissal without termination indemnities on the complainant, the Secretary General therefore breached the provisions of aforementioned Staff Rule 12.1.3(1)(i) and thereby committed an error of law. The Tribunal observes that it is even possible to consider that this measure, insofar as it amounts in practice to a summary dismissal for mere misconduct, is not among those listed in Staff Rule 12.1.3(1) and that the Secretary General therefore breached the principle nulla poena sine lege, applicable in disciplinary matters, according to which an authority cannot lawfully impose a sanction other than those provided for in the organisation’s staff rules and regulations (see, in particular, Judgment 757, consideration 7).
Reference(s)
ILOAT Judgment(s): 757
Keywords
disciplinary measure; mistake of law
Consideration 17
Extract:
[T]he evidence shows that the complainant can refer to significant mitigating circumstances, which should be given due consideration in accordance with both the general principles applicable in disciplinary matters and the express provisions of Staff Rule 12.3.2(7), which states that “in reaching his decision, the Secretary General shall take into account any evidence in the official’s defence”.
Keywords
mitigating circumstances; disciplinary measure
Consideration 22
Extract:
[T]he Tribunal considers that all the injuries suffered by the complainant may be fairly redressed by awarding him a sum equivalent to three years’ remuneration, which will be calculated on the basis of the net salary and allowances of any kind which the complainant was receiving at the time of his departure from the Organization, without deducting from this sum any earnings which he may have received since then.
As this lump sum must be regarded as compensating the entire material injury suffered by the complainant, there is no need to add to it the amount of the pension contributions relating to the remuneration in question or to pay interest for late payment thereon.
Keywords
material injury; allowance; lump-sum
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