In re DUBERG 2

See previously In re DUBERG case

D. Considering that it is undoubtedly true that ir the Director-General has been informed that a member of his staff has acted in a manner prohibited by Article 1.4 of the Staff Regulations, the Director-General has a duty to check the accuracy of such information either himself or through persons appointed by him from within his Organisation, in order that he may take decisions or even sanctions, if necessary, in the full knowledge of the facts;

That in this light the enquiry procedure within the Secretariat to which the Director-General resorted in the present case in full exercise of his authority can in no sense be subject to criticism; that it is in accordance with the undertaking made with the State Member concerned under arrangements approved by the Executive Board and General Conference of the defendant Organisation; that this was solely an undertaking that any information which the Government of the State concerned might desire to submit to the Director-General would “be studied with care”and that he would “certainly give every consideration to it, in the light of the Constitution of UNESCO and all other relevant provisions and policies which may have been or may be laid down by the appropriate organs of UNESCO”;

That the objection raised in this regard by the complainant is totally unfounded;

E. Considering that it is quite different when the ground for complaint of the Director-General is based solely on the refusal of the official to participate in measures of verbal or written enquiry to which his national government considers it necessary to subject him;

That the Director-General of an international organisation cannot associate himself with the execution of the policy of the government authorities of any State Member without disregarding the obligations imposed on all international officials without distinction and, in consequence, without misusing the authority which has been conferred on him solely for the purpose of directing that organisation towards the achievement of its own, exclusively international, objectives;

That this duty of the Director-General is governed by Article VI, paragraph 5, of the Constitution of the defendant Organisation, in the following terms:

“The responsibilities of the Director-General and of the staff shall be exclusively international in character. In the discharge of their duties they shall not seek or receive instructions from any Government or from any authority external to the Organization. They shall refrain from any action which might prejudice their position as international officials. Each State Member of the Organization undertakes to respect the international character of the responsibilities of the Director-General and the staff, and not to seek to influence them in the dis charge of their duties.”

Considering that the fact that in this case the matter involved is an accusation of disloyalty brought by a Government which enjoys in all respects the highest prestige, must be without any influence upon the consideration of the facts in the case and the determination of the principles whose respect the Tribunal must ensure;

That it will suffice to realise that if any one of the seventy-two States and Governments involved in the defendant Organisation brought against an official, one of its citizens, an accusation of disloyalty and claimed to subject him to an enquiry in similar or analogous conditions, the attitude adopted by the Director-General would constitute a precedent obliging him to lend his assistance to such enquiry and, moreover, to invoke the same disciplinary or statutory consequences, the same withdrawal of confidence, on the basis of any opposal by the person concerned to the action of his national Government;

That if this were to be the case there would result for all international officials, in matters touching on conscience, a state of uncertainty and insecurity prejudicial to the performance of their duties and liable to provoke disturbances in the international administration such as cannot be imagined to have been in the intention of those who drew up the Constitution of the defendant Organisation;

Considering therefore that the only ground for complaint adduced by the Director-General to justify the application to the complainant of an exception to the general rule of renewal of appointments, that is to say his opposal to the investigations of his own Government, is entirely unjustified;

Considering that it is in vain that it is alleged that the terms of renewal set forth in the Director-General’s circular of 6 July 1954, after enumeration of the standards required, provide that the services of the person concerned must be needed; that this expression cannot mean that the person concerned must be irreplaceable, in that no successor can be found; that it means only that the requirements of the service to which the person concerned is assigned must be permanent and that the said person must give full satisfaction therein and otherwise in all manner in the performance of his duties; that on this last point the appreciations contained in the annual reports of the complainant are entirely laudatory.

Considering that it results therefrom that the decision taken must be rescinded; but that nevertheless the Tribunal does not have the power to order the renewal of a fixed-term appointment, which requires a positive act of the Director-General over whom the Tribunal has no hierarchical authority;

That in the absence of such a power and unless the Director-General should consider himself in a position to reconsider his decision in this manner, the Tribunal is none the less competent to order equitable reparation of the damage suffered by the complainant by reason of the discriminatory treatment of which he was the object;

F. Considering that it results from the documents produced by the parties during the hearing that the enquiry made by order of the Director-General himself within the defendant Organisation, the legitimate and regular character of which has been shown above, did not bring any evidence to show that the complainant failed in his duties, as defined in Article 1.4 of the Regulations, during the period that he was an official of the defendant Organisation;

That this Special Board considered that it could find no evidence either in the reports of the Loyalty Board or as a result of its own enquiries that the complainant, during his employment in the Secretariat of the defendant Organisation, had engaged in or was engaging in activities that could be shown to constitute misconduct under the terms of the Staff Regulations and Rules;

Considering that it is irrelevant to seek whether or not the complainant was engaged in militant political activities before being appointed to the international service and at a time when he was not bound by the obligations involved in joining this service, unless it has been proved that he had been guilty of dishonourable or criminal acts (actes déshonorants ou criminels);

That any accusation of this nature could only be admitted if drawn up both in due form and with all the precision required to ensure respect for the right of the accused person to defend himself;

That it is not so in this case;

Considering that it has been shown above that the attitude of the complainant towards the Loyalty Board in no way justifies the existence of serious doubts as to his integrity, judgment and loyalty towards the defendant Organisation;

That it does not therefore appear that the complainant placed his own interests above the true interest of the Organisation, which interest consists above all in safeguarding erga omnes its independence and impartiality;

ON PREJUDICE

Considering that an official who combines all the necessary qualities has a legitimate expectancy of being offered a new appointment in the position which he occupied, and that this expectancy was fulfilled for all the persons concerned, with the exception of a certain number, of whom the complainant;

That not only is such an almost absolute quod plerumque fit but also that in thus acting the Administration of the defendant Organisation has as its objective to create a permanent body of officials experienced in their duties, who are destined to follow a career in the Organisation concerned;

That the decision not to renew the appointment is one which should not only be rescinded in the present case, but also constitutes a wrongful exercise of powers and an abuse of rights which consequently involves the obligation to make good the prejudice resulting therefrom; that this prejudice was aggravated by the publicity given to the withdrawal of confidence as being due to lack of integrity, this ground having been given in a press communiqué issued by the defendant Organisation, without it being possible seriously to maintain the view that there could have existed the slightest doubt as to the identity of the persons to which the said communiqué referred;

Considering that it is to no purpose that they have been reproached with having communicated the measures of which they were the object to the Staff Association recognised by the defendant Organisation, as the upshot of a procedure to which the said Association was a party with the knowledge and consent of the Director-General himself;

That redress will be ensured ex aequo et bono by the granting to the complainant of the sum set forth below;

Considering that, on the one hand, there should be granted to the complainant the amount of the salary which he would have received had he not been subject to the measure of exception of which he complains, that is to say one year’s basic salary;

That, on the other hand, there should be granted to him a second year’s basic salary in order to compensate for the moral prejudice and in particular the difficulties which he will encounter in seeking new means of subsistence;

That, in this calculation, there should be added to the salary the statutory amount of children’s allowance;

ON THE GROUNDS AS AFORESAID

THE TRIBUNAL,

Rejecting any wider or contrary conclusions,

Declares the complaint to be receivable as to form;

Declares that it is competent;

Orders the decision taken to be rescinded and declares in law that it constitutes an abuse of rights causing prejudice to the complainant;

In consequence, should the defendant not reconsider the decision taken and renew the complainant’s appointment, orders the said defendant to pay to the complainant the sum of US$15,500, plus children’s allowance for two years, the whole together with interest at 4 per centum from 1 January 1955;

Orders the defendant Organisation to pay to the complainant the sum of US$300 by way of participation in the costs of his defence;

PRONOUNCING on the application to intervene made by M. Henquet;

Considering that such intervention is receivable in so far as it is made by M. Henquet in his own name;

That in this instance the fact that the intervener holds an indeterminate appointment and not a fixed-term appointment does not prevent the present dispute from bearing on principles applicable to the legal position of the whole staff;

Considering that the intervention is founded, in so far as recognised by the present judgment, orders the defendant Organisation to bear the expenses for which justification is provided by the intervener up to a maximum of US$40.

In witness of which judgment, pronounced in public sitting on 26 April 1955 by His Excellency M. Albert Devèze, President, Professor George Scelle, Vice-President, and Jonkheer van Rijckevorsel, Judge, the aforementioned have hereunto subscribed their signatures, as well as myself, Wolf, Registrar of the Tribunal

Author: international

Mentioned in these Entries

In re DUBERG case.