POSUNY V RÁMCI MEDZINÁRODNÉHO SPRÁVNEHO PRÁVA NEPREČÍTANÉ MagOff 

PRÍPAD STEPHANIDES V ROZHODOVACEJ ČINNOSTI SPRÁVNEHO TRIBUNÁLU SPOJENÝCH NÁRODOV 

SHIFTING GROUNDS IN INTERNATIONAL ADMINISTRATIVE LAW
THE STEPHANIDES CASE IN THE JURISPRUDENCE OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL

PROF. SPYRIDON FLOGAITIS
EUROPEAN PUBLIC LAW ORGANIZATION, DIRECTOR
UNIVERSITY OF ATHENS, PROFESSOR,
ATTORNEY AT LAW (AT THE HIGH COURT AND THE COUNCIL OF STATE OF GREECE),
JUDGE OF THE SPECIAL SUPREME COURT OF GREECE,
E-MAIL: SFLOGAITIS@EPLO.EU

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KĽÚČOVÉ SLOVÁ:
Organizácia spojených národov, Správny tribunál Spojených národov, Odvolací tribunál Spojených národov, Stephanides, Irak, olej, potraviny, písomné napomenutie, pochybenie

KEY WORDS:
United Nations Organization, United Nations Administrative Tribunal, United Nations Appeals Tribunal, Stephanides, Iraq, oil, food, written censure, misconduct

ABSTRAKT:
Článok detailnejšie skúma prípad Stephanides v kontexte interných rozhodovacích procesov týkajúcich sa úradného pochybenia vysokopostaveného úradníka Organizácie spojených národov v rámci projektu “oil-for-food” (Irak). Ide o jedno z dvoch rozhodnutí, ku ktorým dospel Správny tribunál OSN počas svojej takmer 50-ročnej existencie v režime plenárneho konania/rozhodovania. Proti menovanému úradníkovi OSN bolo generálnym tajomníkom OSN vznesené (administratívne/disciplinárne) obvinenie (na viacerých skutkových základoch), avšak spojený disciplinárny výbor (Joint Disciplinary Committee) rozhodol vo veci v prospech úradníka. Generálny tajomník OSN napriek uvedenému vo vzťahu k úradníkovi vydal písomné napomenutie (ako najmenej prísny administratívny/disciplinárny postih), proti tomuto postihu sa Stephanides odvolal. Článok poskytuje právnu genézu (analýzu) tohto prípadu z viacerých aspektov témy.

ABSTRACT/SUMMARY:
The article provides the reader with selected legal details of the Stephanides case in the context of internal justice within the United Nations. It focuses on matters of misconduct of a UN official and the internal proceedings that followed this misconduct. The Stephanides case was the final case decided upon by the United Nations Administrative Tribunal in plenary session, before it became the United Nations Appeals Tribunal. It was one of only two decisions taken in plenary session throughout the Tribunal's entire history of approximately 50 years. Stephanides was a high official of the UN. He was charged by the Secretary-General on a number of grounds; the Joint Disciplinary Committee (JDC) recommended in his favor; the Secretary-General accepted the recommendation of the JDC and rescinded the initial decision; however, he further decided to issue a written censure on a ground which was not, at least clearly, previously pronounced. The article provides an analysis of the above case from various legal perspectives.

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I. The Stephanides case was the final case decided upon by the United Nations Administrative Tribunal in plenary session, before it became the United Nations Appeals Tribunal. It was one of only two decisions taken in plenary session throughout the Tribunal's entire history of approximately 50 years. Both decisions in plenary session dealt with aspects of the United Nations “oil for food” project in Iraq. The Stephanides case found the Tribunal unanimous regarding the facts and the need for substantial compensation for the applicant; it found it divided, however, regarding the interpretation of the facts and their legal consequences.

Stephanides was a high offcial of the UN with an excellent record. He was charged by the Secretary-General on a number of grounds; the Joint Disciplinary Committee (JDC) recommended in his favor; the Secretary-General accepted the recommendation of the JDC and rescinded the initial decision; however, he further decided to issue a written censure on a ground which was not, at least clearly, previously pronounced. Stephanides was not satisfied with the written censure and appealed to the United Nations Administrative Tribunal, despite the fact that a written censure is the lowest possible disciplinary measure that can be taken against a UN staff member. At the same time, the Secretary-General, in an indirect recognition of his standards of service, continued using the services of the ex-staff member in various missions around the globe.

II. The Applicant was charged on 8 February 2005, on the basis of the findings of an interim Independent Inquiry Committee (IIC) report, in the following terms:

“On the basis of the Interim Report you are hereby charged with misconduct, specifically with tainting, and actively participating in prejudicing and preempting the procurement process for the award of the humanitarian goods inspections contract, in violation of the following Financial Rules in effect in 1996, which provide in relevant part:

Financial Rule 110.18: ‘Calling for bids or proposals’

‘Except as provided in rule 110.19, contracts for the purchase or rental of services, supplies, equipment and other requirements shall be let after competitive bidding or calling for proposals. Tender shall be invited by advertising through publication or distribution of formal invitations to bid; provided that in cases where the nature of the work involved precludes invitation of tenders and where proposals are called, a comparative analysis of such proposals shall be kept on record.’

Financial Rule 110.21: ‘Awarding of contracts’

‘Contracts shall be awarded to the lowest acceptable bidder ... provided that where the interests of the Organization so require, all bids may be rejected. In the latter instance, the Assistant Secretary-General for General Services or other such official authorized under rule 110.16 shall record in writing the reasons for rejection of the bids and determine whether to invite new competitive tenders or enter into a negotiation contract.’

The following provisions in the Procurement Manual in effect in 1996, specify the requirement for equal treatment of and fairness to all bidders in a competitive process:

9.002: ‘Basic considerations’

‘... Absolute impartiality must be shown to all bidders. Information concerning any should be available to any bidder.’

9.0016: ‘Requests for information prior to award’

‘Prior to making an award, no information with respect to probable acceptance or rejection of any offer may be made available to any person other than an official of the organization ...’

You are further charged with violating the above provisions.

Finally, the Interim Report also alleges that, during your 17 January 2005 interview with the Independent Inquiry Committee …, you denied telling representatives of the [U.K.] that Lloyd’s needed to lower its bid in order to obtain the inspection contract. In your subsequent appearance before the IIC on 2 February 2005, you admitted that you had, in fact, contacted the [U.K.] delegation to engage its assistance in having Lloyd’s lower its bid.

Based on the above, you are further charged with failing to cooperate with the IIC, in violation of staff regulation 1.2 (r) … and Secretary-General’s bulletin ST/SGB/2004/9 of 1 June 2004 ...”

III. On 31 May 2005, the Applicant was informed that he was being summarily dismissed for serious misconduct, on the basis that he had divulged information to the UK Mission on the size of the bid submitted by Lloyd’s competitor, before the Mission had submitted the revised Lloyd’s bid, because, according to the Secretary-General,

“[i]n divulging the above information to the … Mission, [the Applicant had] tainted, and actively participated in prejudicing and preempting, the procurement process for the award of the humanitarian goods inspections contract to Lloyd’s, and violated the requirement for equal treatment of and fairness to all bidders in the competitive process”.

IV. The JDC’s recommendations were favorable to the Applicant. Following the JDC’s recommendations, the Secretary-General agreed to rescind the summary dismissal on 14 November 2005. However, he determined that, while the information the Applicant had allegedly “divulged” was, in fact, already public knowledge, he had

“violated the procurement rules that required [him] to act with ‘absolute impartially’ towards all bidders and … not disclose outside the [United Nations] any information with respect to the probable acceptance or rejection of a bid offer (Procurement Rules 9.0002 and 9.0016) … by contacting the U.K. Mission and advising them that a competitor would be receiving the bid and advising the Mission how much lower the Lloyds’ bid needed to be”.

Accordingly, the contact, in and of itself, was deemed misconduct worthy of a disciplinary sanction, albeit a written censure, the mildest sanction provided for by the Staff Rules

V. Staff rule 110.4 (a) provides that

“[n]o disciplinary proceedings may be instituted against a staff member unless he or she has been notified of the allegations against him or her, as well as of the right to seek the assistance in his or her defence … and has been given a reasonable opportunity to respond to those allegations”.

In the Stephanides case the charges, as given, were two:

First, that specific Financial Rules were violated because the Applicant “taint[ed] and actively participat[ed] in prejudicing and preempting the procurement process for the award of the humanitarian goods inspections contract”;

Second, that by initially denying and then acknowledging having contacted the UK Mission, he had “fail[ed] to cooperate with the IIC, in violation of staff regulation 1.2 (r) … and Secretary-General’s bulletin ST/SGB/2004/9 of 1 June 2004”.

The summary dismissal was premised upon the accusation that,

“[i]n divulging the above information to the … Mission, [the Applicant had] tainted, and actively participated in prejudicing and preempting, the procurement process for the award of the humanitarian goods inspections contract to Lloyd’s, and violated the requirement for equal treatment of and fairness to all bidders in the competitive process”.

Accordingly, this was the charge the Applicant had to defend himself against when he appealed his summary dismissal to the JDC. However, he was eventually censured because he

“violated the procurement rules that required [him] to act with ‘absolute impartially’ towards all bidders and … not disclose outside the UN any information with respect to the probable acceptance or rejection of a bid offer (Procurement Rules 9.0002 and 9.0016) … by contacting the U.K. Mission and advising them that a competitor would be receiving the bid and advising the Mission how much lower the Lloyds’ bid needed to be”.

VI. The majority of the Tribunal found that the procedure followed by the Secretary-General and the UN observed the law of the Organization and that the written censure was not, under the circumstances, a disproportionate disciplinary action.

The Tribunal asked itself the question Did the Respondent have the power to impose a written censure on the Applicant without having sought the advice of the JDC? In fact, every time a disciplinary measure is taken against a UN staff member, the procedure is initiated before a Joint Disciplinary Committee.

The majority of the Tribunal answerd as follows:

“Staff rule 110.4, so far as relevant, provides:

“(b) No staff member shall be subject to disciplinary measures until the matter has been referred to a Joint Disciplinary Committee for advice as to what measures, if any, are appropriate, except that no such advice shall be required:

(i) If referral to the Joint Disciplinary Committee is waived by mutual agreement of the staff member concerned and the Secretary-General;

(ii) In respect of summary dismissal imposed by the Secretary-General in cases where the seriousness of the misconduct warrants immediate separation from service.

(c) In cases of summary dismissal imposed without prior submission of the case to a Joint Disciplinary Committee in accordance with subparagraphs (b) (i) and (ii), the staff member or former staff member concerned may, within two months of having received written notification of the measure, request that the measure be reviewed by such a Committee. A request shall not have the effect of suspending the measure. After the advice of the Committee has been received, the Secretary-General shall decide as soon as possible what action to take in respect thereof. An appeal in respect of such a decision may not be submitted to the Joint Appeals Board.”

Staff rule 110.4 (b), taken in isolation, may indicate that the Secretary-General had a limited discretion, namely that he was not entitled to impose a written censure upon the Applicant without seeking the advice of the JDC, on the grounds that the decision does not fall under the limited exceptions provided by subparagraphs (i) and (ii). The Tribunal, however, takes the view that staff rule 110.4 must be read as a whole and that the Secretary-General, having had the benefit of a consideration of the “matter” by the JDC, was entitled to “decide … what action to take in respect thereof”, irrespective of how the JDC came to be seized of the matter. Given that the charges made against the Applicant, which were before the JDC, included all the reasons for claiming that the Applicant had prejudiced the procurement process, the Tribunal concludes that the language of staff rule 110.4 is wide enough to confer on the Secretary-General the broad discretion to make a final decision. Accordingly, the Tribunal concludes that his decision to impose a written censure does not, in the circumstances of this case, amount to any denial of due process.”

Furthermore, the Tribunal in its majority decision, had to determine whether the written censure was a disproportionate sanction. It examined the question and decided as follows:

“In the light of Article 100, paragraph 1, of the Charter and staff regulations 1.1 and 1.4, the Tribunal regards the Applicant’s breach of the Procurement Rules as not merely a “technical” breach, but a substantial one. Accordingly, the Tribunal finds that the written censure imposed upon the Applicant was not disproportionate in the light of his admitted conduct.”

It could be deduced that the Tribunal first determined that the nature of the case permitted the Secretary-General to clarify, be it after the conclusion of the procedure before the JDC, a reason for a new sanction, but at the same time that this action is not disproportionate because the breach was not purely technical but substantial. In other words, it was a substantial breach, which, however, could be brought up, for clarity ,even after the conclusion of the JDC procedure and could produce an entirely new sanction.

The internal contradiction in this conclusion, was furthered when the Tribunal turned its attention to the question of compensation. Stephanides had inter alia asked to be compensated for the treatment he received by the Organization in the frame of this adventure.

“The Tribunal recalls that the JDC recommended an award of two years’ net base salary “for the damage and injury caused to [the Applicant’s] rights, professional reputation and public image as an international civil servant”, as well as recommending that the Respondent “provide a written apology to the Applicant, which should also be published in the media”. In view of the fact that the Secretary-General rescinded his decision to summarily dismiss the Applicant, that sanction was not relevant for the purposes of the Tribunal’s review of the disciplinary process, supra. In consideration of the humiliation, moral harm and reputational damage that the Applicant incurred, however, the Tribunal considers it to be of the utmost relevance. While the Tribunal cannot – and will not – condone impropriety in the procurement process, it is fully aware that termination for serious misconduct is invariably not imposed absent the presence of fraud or the motive of personal gain. (See Judgement No. 1391 (2008).) The Tribunal wishes to state that it finds itself wholeheartedly in agreement with the conclusion of the JDC that summary dismissal, under the circumstances of this case, was disproportionate. That said, the Tribunal considers that the language of the JDC report, in concluding that “the Respondent’s decision to summarily dismiss the Applicant for such legitimate conduct was illegal, wrong, unfounded and unjustified”, was equally extreme, over-correcting the position taken by the Secretary-General.

The rescission of the summary dismissal and imposition of a written censure cannot be construed as repairing the damage to the Applicant’s reputation suffered by the public actions of the Organization, and the Tribunal agrees with the JDC that he deserves compensation for such damage, as well as for the moral injury and humiliation he suffered. (See Makil (ibid.) and Judgements No. 997, van der Graaf (2001) and No. 1268 (2005).) In this regard, the Tribunal reiterates that the Secretary-General specifically invoked the Applicant’s name in connection with the OFP inquiry, at a time of intense media scrutiny, prior to the institution of disciplinary proceedings against him.

The Tribunal recalls its Judgement No. 1095, Plasa (2002), in which it awarded the Applicant “one year’s salary for breach of due process and the attacks on his reputation occasioned by the publicity given, particularly in the press, by the Administration to his summary dismissal”. In that case, the Tribunal was “convinced that the publicity surrounding the Applicant’s summary dismissal, one month prior to the expiry of his fixed-term appointment, could not but be seriously damaging to him”. Similarly, in the instant matter, the Tribunal considers the undue publicity surrounding the Applicant’s case to have aggravated the harm he suffered. (See generally Judgement No. 1192, Mbarushimana (2004).) For these reasons, it awards compensation under this heading.”

This section of the judgment, concerning compensation, was unanimous and led to a decision which imposed on the Administration the duty to pay exceptionally high damages.

VII. The inconsistencies of the majority decision were addressed in a separate opinion, in which, first of all, issues regarding the fundamental rights of UN staff members needed to be clarified.

“The jurisprudence of this Tribunal derives directly from, and is the expression and concretization of, the principle that due process of law is one of the fundamental rights of the individual, as recognized in the Preamble to the United Nations charter and further developed in the Universal Declaration of Human Rights. The Preamble to the Charter “reaffirm[s] faith in fundamental human rights [and] in the dignity and worth of the human person”. With respect to due process, Article 10 of the Universal Declaration of Human Rights establishes that “[e]veryone is entitled in full equality to a fair and public hearing … in the determination of his rights and obligations and of any criminal charge against him”. The General Assembly, in its resolution 48/218 B, requested the Secretary-General, inter alia, “to ensure that procedures are … in place that protect … due process for all parties concerned and fairness during any investigations[, and] that falsely accused staff members are fully cleared”. (See also Judgement No. 1246 (2005).)”

Then, it continued:

“The Tribunal has consistently emphasized the importance it places on respect for due process, and on the fact that the Organization must act, and be seen to act, in accordance with the very principles upon which it was created. In Judgement No. 1022, Araim (2001), the Tribunal held that it “cannot accept that investigations could be conducted without rules and guarantees of due process and without giving due respect to inalienable rights as proclaimed by the Organization itself in the Declaration on Human Rights”. In Judgement No. 1058, Ch’ng (2002), it asserted: “The Tribunal feels that the Organization has to respect and follow its procedures in keeping with what the world expects of the United Nations”. Finally, in Judgement No. 1154, Hussain (2003), the Tribunal found “[i]t is a well established principle of law, part of the wider principle of due process, that whoever is accused of any wrongdoing must be given a fair opportunity to defend him/herself within a proper procedure”.

As this Tribunal has established in very clear terms over the years, the Administration is bound never to forget that the staff members, no matter how high or low in the hierarchy they are placed, are human beings, giving their lives and genius to the Organization, and deserve to be treated decently and constructively. As it held in Judgement No. 1387 (2008), “it is in the interest of the Administration to treat staff members with the respect they deserve, as they are the ones who give their competencies and lives in order that the Organization might achieve its goals”. I question the impression that the Administration gives in a case like this where, after having accused the staff member of truly serious offenses and having summarily dismissed him accordingly, the Administration accepts in toto the contrary findings and recommendation of the JDC but remembers, at that last moment of the procedure, to specify an accusation which results in written censure. I am not convinced an Applicant is able to defend himself against a charge which he did not fight against throughout the procedure, only because he was not clearly accused thereof. (See Araim (ibid.).)”

Therefore, the whole issue for interpretation by the Tribunal was Staff rule 110.4 (a) which provides that

“[n]o disciplinary proceedings may be instituted against a staff member unless he or she has been notified of the allegations against him or her, as well as of the right to seek the assistance in his or her defence … and has been given a reasonable opportunity to respond to those allegations”.

The opinion concluded:

“In interpreting that provision, the first issue that the Tribunal must address is what “all the allegations against him” means, i.e., how the charges against an accused should be legally framed. It is my opinion that, in order for charges to be legal, they must be clear and precise, and contain facts which are precisely analysed under the applicable law. In other words, it must be clear what particular behavior constituted misconduct and why such behavior violated specific legal provisions. It follows, then, that the charges cannot be vague, and nor can their legal evaluation. Furthermore, the final decision or sanction cannot be for behavior that was not charged, or for a violation of law which was not detailed in the charges. Ultimately, the relevant document for a staff member who has been summarily dismissed and wishes to appeal that sanction to the JDC is the letter of summary dismissal, which letter must be narrowly interpreted. This is apparent from the consistent jurisprudence of this Tribunal on matters of due process, deriving directly from the most important legal sources of the law of the United Nations.”

and deduced that the decision of the Secretary-General should be rescinded.

IX. It is true that in the Stephanides case the facts and their legal appreciation were appealing to the finest possible legal thoughts, because they were extremely subtle. The majority of the Tribunal seems to have wished not to control the margin of discretion of the Secretary-General in disciplinary cases, especially in exceptional cases like the one brought to its attention by Stephanides. After all, under the circumstances, a written censure was nothing in comparison to the initial charges pronounced against him. It appears that for a written censure in a case like this, and given the fact that, after all, Stephanides was, during the final stage, found by his own admission to have breached one of his duties as an international civil servant, the majority of the Tribunal did not wish to directly challenge the authority of the Secretary-General. On the contrary, the Tribunal seems to have tried to do justice en sourdine through compensation, which was offered at an exceptionally high level, very rarely seen before.

The separate opinion demonstrates the will to clarify the law in a certain way. It codifies the case law produced over the years by the same Tribunal, particularly in the area of due process, and makes the step forward by denying the Secretary-General the right to shift grounds at a later stage, as he did, according to that opinion, in this case.

In fact, in the present case, when Stephanides appeared before the IIC, the administrative procedure leading to the clarification of the case facts, in order to defend himself against allegations, he admitted to them, after having denied contacting the UK mission, although in special terms, i.e. having nothing to do with the accusation. This behavior was qualified by the IIC as failure to cooperate with the investigation.

Had he known that he would be accused on the basis of what he had produced as evidence of his innocence, he could have handled his defense, as he had the right to do, in an different way. Then, he was accused of failing to cooperate; however, once again, in the charges against him, this part of the case did not appear. Once more, the Applicant had to defend himself against a rather vague accusation. By having been investigated and then accused in these terms and for very serious acts, Stephanides pronounced, in his defence, the words which were used against him in a different legal context, resulting in the imposition of the sanction of written censure, in a shift of grounds. This must be intolerable in modern societies and legal systems.