CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 septembre 2012

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margin-bottom:0pt; text-align:justify }       FIFTH SECTION Application no. 15521/08 Amalia PEREZ against Germany lodged on 20 March 2008 STATEMENT OF FACTS   The applicant, Ms Amalia Perez, is a Spanish national, who was born in 1950 and lives in Madrid. She is represented before the Court by Mr E.P. Flaherty, a lawyer practising in Geneva. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case The applicant was a former staff member of the United Nations (the “UN” or the “Organisation”). She had joined the United Nations Development Programme (the “UNDP”) in New York in 1970 and later received a permanent appointment. She was promoted several times and, in 1998, moved to the United Nations Volunteer Programme (the “UNV”), Headquarters Administration, in Bonn, Germany. UNV is represented worldwide through the offices of the UNDP and reports to the UNDP Executive Board. The applicant served as a senior manager with UNV and also became a resident of Germany. Until 1999 the applicant’s professional performance had consistently been rated by consecutive supervisors in her annual appraisal reports as exceeding or fully satisfying the requirements of her respective job. However, in 1999, as well as in 2000 and 2001, a new supervisor found that she had not met the performance expectations. As a consequence of the negative appraisal reports the applicant was included in the 2002/2003 UNV reassignment exercise with a view to her redeployment. By a letter of 8 July 2002, she was informed by the UNV human resources department that she had not been selected for any post within the scope of the reassignment exercise and was given a time-limit of several months to search herself for an alternative placement in the UNDP or elsewhere in the Organisation. On 17 July 2002, the applicant filed a rebuttal for an internal administrative review of the negative appraisal reports for the years 1999, 2000 and 2001 with a rebuttal panel (the “Rebuttal Panel”) composed of UNDP staff members jointly selected by the staff council and management in accordance with the rules set out in the relevant circular issued by UNDP (see Relevant international law and practice below). On 1 November 2002, UNDP management decided that the applicant should be placed on annual leave during the period from 1 November to 4   December 2002. As the applicant was unable to find a post within the Organisation and following fruitless attempts by UNDP to agree on possible conditions for a termination of the applicant’s employment contract, she was given formal notice of termination by a letter dated 3 December 2002. The termination was reasoned with intended staff reduction and suppression of posts under the terms of UN staff rule 109.1 (c). On 16 December 2002 the applicant was advised that UNDP regarded her as being on three months’ notice from 5 December 2002 and that her dismissal would be effective as of 4 March 2003. On 20 January 2003 the applicant requested an administrative review of the decision to dismiss her with the UN Secretary-General (the “Secretary-General”) and asked to suspend her dismissal. On 22 January 2003 the rebuttal proceedings regarding the applicant’s appraisals for the years 1999, 2000 and 2001 commenced before the Rebuttal Panel. On 31 January 2003, the Secretary-General, following a related recommendation by the UN Joint Appeals Board (the “JAB”) of 29 January 2003, granted the applicant’s request for a suspension of her dismissal pending completion of the rebuttal process in relation to her appraisal reports. On 10 June 2003 the Rebuttal Panel issued its report and concluded that the applicant’s performance ratings be maintained for the years 1999 and 2001 but found that it was not in a position to reach a final conclusion with respect to the rating for 2000 due to management’s failure to provide the relevant documentation. On 29 August 2003 the Secretary-General, contrary to a recommendation by the JAB dated 27 August 2003, decided not to accept a further request by the applicant to suspend her dismissal. The applicant’s employment ended on 31   August 2003. 2.     The proceedings regarding the applicant’s dismissal a.     The Proceedings before the UN Joint Appeals Board (JAB) On 7 March 2003 the applicant lodged an appeal with the JAB challenging the decision to terminate her permanent appointment as well as the decision to place her on annual leave during the period from 1   November to 4 December 2002. In its report on the merits of the applicant’s appeal dated 28 February 2005, the JAB found that following the applicant’s dismissal UNV management had immediately hired a staff member under a temporary assistance contract to perform the applicant’s functions and that her post had thus in reality not been suppressed but in fact had been reclassified to a higher grade. The JAB noted that it had not been established that UNDP management had taken action to assist the applicant to improve her work performance from 1999 onward. It further held that while the applicant had been placed in the reassignment exercise for 2002/2003, UNDP management had failed to make sufficient effort to actively assist her in finding alternative employment within the Organisation. As regards the decision to place the applicant on annual leave from 1 November to 4   December 2002, the JAB noted that even though the applicant’s rebuttal process regarding her appraisal reports had been pending since 17 July 2002, the case had not yet been assigned to a Rebuttal Panel at the time she was placed on annual leave in November 2002. It had been only on 22   January 2003 and only after the applicant had applied for suspension of her dismissal, that the Organisation acknowledged that the rebuttal process had been delayed and started the rebuttal proceedings. In the JAB’s opinion it had therefore not been justified to penalise the applicant by having to use her annual leave balance in November 2002 and the JAB consequently found that such measure had been contrary to the relevant staff rule 105.1   (b). The JAB recommended that the applicant be granted monetary compensation equivalent to six months’ net base salary for the delay in the rebuttal process as well as for the failure on the part of the Organisation to make a reasonable effort to find a suitable alternative post for her. It also recommended that annual leave wrongfully charged for the period of 1   November to 4 December 2002 be credited to her leave balance. On 3 August 2005 the applicant was informed of the Secretary-General’s decision to credit her with her annual leave for the period from 1 November to 4 December 2002 and to grant her compensation in an amount of three month’s net base salary instead of the six months recommended by the JAB. b.     The Proceedings before the UN Administrative Tribunal On 5 July 2005, counsel for the applicant lodged an appeal with the United Nations Administrative Tribunal (the “UNAT”) requesting the tribunal to find, inter alia , that she be reinstated and awarded full compensation for losses incurred since termination of her employment on 31   August 2003, such as social security and other benefits, as well as punitive damages. By a letter to the UNAT of 25 May 2007, the applicant further asked to be granted access to certain documents submitted by UNDP in the proceedings before the Rebuttal Panel and referred to by the latter in its report of 10 June 2003 but which she had allegedly never had an opportunity to examine. The UNAT rendered its judgment on 28 September 2007 (No. 1345) following a written procedure. It pointed out that while the applicant’s rebuttal had been filed on 17 July 2002, the internal rebuttal proceedings had only commenced on 22 January 2003 following the applicant’s request of 20 January 2003 to suspend her dismissal and had ended on 10 June 2003. The proceedings had thus taken eleven months, a delay that, as acknowledged by the Organisation, was unacceptable. The UNAT further endorsed the JAB’s finding that the UNDP administration had failed to make every bona fide effort to secure a new post for the applicant. It ordered the Organisation to pay the applicant further compensation in the amount of three months’ net base salary in addition to the three months she had already received. The applicant’s request for a review of the aforementioned specific documents was not granted by the UNAT. B.     Relevant international and domestic law and practice 1.     The legal status of the UNV The United Nations were founded in 1945 and currently have 193 Member States. Germany was admitted to membership in the United Nations on 18 September 1973. The United Nations Development Programme (UNDP) and the United Nations Volunteers Programme (UNV) are subsidiary organs of the UN established by the Organisation’s General Assembly. UNDP is the UN global development network with its headquarters in New York City. In its current form, it was established in 1965 by the General Assembly of the United Nations. UNV is the UN organisation that aims at supporting sustainable human development globally through the promotion of volunteerism. UNV is represented worldwide through the offices of the UNDP and reports to the UNDP Executive Board. By the latter’s decision of 10 January 1995 the UNV headquarters have been relocated to Bonn, Germany. Pursuant to Article 104 and paragraph 1 of Article 105 of the Charter of the United Nations the Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions as well as such privileges and immunities as are necessary for the fulfilment of its purposes. As regards immunity from jurisdiction, the Convention on the Privileges and Immunities of the United Nations (the “General Convention”), in so far as relevant, provides: “ Article II Section 2 .     The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity ... Article VIII Section 29 .     The United Nations shall make provisions for appropriate modes of settlement of: (a)     disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; ...” Germany has been a party to the General Convention since 5 November 1980. The General Convention is complemented by the Agreement between the UN and the Federal Republic of Germany concerning the headquarters of the UNV (the “Headquarters Agreement”) of 10 November 1995, which stipulates in its Article 4 that the General Convention shall apply to the UNV. It contains provisions similar to the General Conventions which, as far as relevant, read as follows: “ Article 9 1.     The UNV, its funds, assets and other property, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process, except insofar as in any particular case the United Nations has expressly waived the immunity. It is understood, however, that no waiver of immunity shall extend to any measure of execution. ... Article 26 1.     The United Nations shall make provisions for appropriate modes of settlement of: (a)     disputes arising out of contracts and other disputes of a private law character to which the UNV is a party; ...” 2.     Rules on the Performance Appraisal System for UNDP/UNV staff members and the review of Performance Appraisal Review Reports According to the Circular UNDP/ADM/97/50 of 19 August 1997 on “Rebuttal Procedures for Performance Appraisal Review Reports” as applicable at the time of the internal review proceedings at issue, in the event of disagreement between a staff member and management regarding a performance appraisal, both parties should first try to reach a consensus on a possible adjustment of the impugned ratings. In the event such attempt is to no avail, the staff member may send a formal rebuttal request in writing to the UNDP Director of Human Resources, which should include a written testament by the so-called Management Review Group (the “MRG”) on the efforts made to internally resolve the disagreement. The Office of Human Resources will then submit such request to a Rebuttal Panel comprising UNDP staff members jointly selected by the Staff Council and the Office of Human Resources (in consultation with senior management) for a two-year term. Rebuttal Panels sit in formations of three members, two of which, including the Chairperson, are appointed by UNDP management whereas the third member is appointed by staff. Each rebuttal case is assigned by the Panel through its Chair to a member who should not have been a member of the MRG in the staff member’s unit, nor have had any supervisory capacity over the rebutting staff member during the performance year under review. Rebuttal investigations should be completed within 2 months of the submission of a request by a staff member. Upon completion of an investigation report with a recommendation for or against changes to the original appraisal rating, the investigating Panel member submits the report and recommendation to the Panel for its endorsement. The Panel may recommend upholding the MRG’s rating and/or written appraisal or, following consultation of the Chair of the MRG, may recommend changing the rating. The Panel will forward the resulting recommendation to the Director of Human Resources for inclusion in the record and file of the staff member, with a copy to the Chair of the MRG and the staff member. Pursuant to Section 15 of the UN Secretariat’s Administrative Instruction ST/AI/2002/3 of 20 March 2002 concerning the UN Performance Appraisal System, the rating resulting from the rebuttal process shall be final and not be subject to further appeal. However, administrative decisions that stem from any such final performance appraisal and that affect the conditions of service of a staff member may be appealed in accordance with the rules governing the UN internal appeals system. The UN internal appeals system concerning employment-related disputes According to the UN internal appeals system as implemented at the time of the dispute at issue, UN staff members who found that a decision by the UN administration had violated the terms of their employment could seek an administrative review of such decision by the UN Secretary-General. If the Secretary-General did not reply within the allotted time-limit as stipulated in the relevant regulations or if his reply was unfavourable, the staff member could submit an appeal to the Joint Appeals Board (the “JAB”). Pursuant to Chapter XI of the UN Staff Rules-100 Series (from ST/SGB/2003/1 and ST/SGB/2003/8), Rule 111.2, a panel consisting of three staff members, was constituted for the consideration of each appeal within the JAB. One was a chairperson appointed by the Secretary-General from a list agreed upon by both staff and management bodies, another was appointed by the Secretary-General and the third was elected by staff. The members of the JAB were appointed or elected for a period of two years and eligible for reappointment or re-election. A panel met at least once for each appeal. Proceedings before a panel were as a rule limited to the written presentation of the case, together with brief statements and rebuttals, which could be made orally or in writing. According to the JAB’s Rules of Procedures and Guidelines all written submissions and documents the panel was provided with were to be forwarded to the other party. Staff members could arrange to have their appeal presented to the panel on their behalf by counsel, at their own expense. At the request of either party to the proceedings, the JAB decided whether a hearing was to be held in a given case. Following examination of the case, the panel by a majority agreed on a recommendation on how to resolve the case and drew up a report summarising each party’s arguments, the panel’s deliberations and how the panel had reached its recommendation. The report was forwarded to the Secretary-General who was not bound by the JAB’s recommendations and made the final decision on the appeal. The Secretary-General’s decision was communicated to the staff member concerned, together with a copy of the JAB’s report. The Secretary-General’s final decisions could then be challenged before the United Nations Administrative Tribunal (the “UNAT”). The UNAT was established in 1950 by the General Assembly, for the purpose of resolving employment-related disputes between United Nations staff and the Organisation. It is the highest appeals body in the internal administration of justice system. The competence of the UNAT extends to the United Nations Programmes and Funds. The relevant provisions of the UNAT’s Statute, adopted by the General Assembly by resolution 351 A (IV) on 24 November 1949 as amended and as applicable at the time of the dispute at issue, read as follows: “ Article 3 1.     The Tribunal shall be composed of seven members , no two of whom may be nationals of the same State. Members shall possess judicial experience in the field of administrative law or its equivalent within their national jurisdiction. Only three members shall sit in any particular case. 2.     The members shall be appointed by the General Assembly for four years and may be reappointed once ... ... Article 5 1.     The Secretary-General of the United Nations shall make the administrative arrangements necessary for the functioning of the Tribunal. 2.     The expenses of the Tribunal shall be borne by the United Nations. Article 7 1.     An application shall not be receivable unless the person concerned has previously submitted the dispute to the joint appeals body provided for in the Staff Regulations and the latter has communicated its opinion to the Secretary-General, except where the Secretary-General and the applicant have agreed to submit the application directly to the Administrative Tribunal. 2.     In the event of the joint body’s recommendations being favourable to the application submitted to it, and insofar as this is the case, an application to the Tribunal shall be receivable if the Secretary-General has: (a)     Rejected the recommendations; ... Article 9 The oral proceedings of the Tribunal shall be held in public unless the Tribunal decides that exceptional circumstances require that they be held in private.” The Rules of the Administrative Tribunal of the United Nations adopted by the Tribunal on 7 June 1950, as amended and applicable at the time of the dispute at issue, stipulate: “ Article 10 ... 2.     Each written statement and additional document shall be communicated by the Executive Secretary, on receipt, to the other parties, unless at the request of one of the parties and with the consent of the other parties, the Tribunal decides otherwise. Article 13 An applicant may present his case before the Tribunal in person, in either the written or oral proceedings. Subject to article 7 of these rules, he may designate a staff member of the United Nations or one of the specialized agencies so to represent him, or may be represented by counsel authorized to practice in any country a member of the organization concerned ... ... Article 15 1.     Oral proceedings shall be held if the presiding member so decides or if either party so requests and the presiding member agrees. The oral proceedings may include the presentation and examination of witnesses or experts. Each party shall in addition have the right of oral argument and of comment on the evidence given. ... Article 16 1.     The Tribunal may examine the witnesses and experts. The parties, their representatives or counsel may, under the control of the presiding member, put questions to the witnesses and experts. ... Article 17 The Tribunal may at any stage of the proceedings call for the production of documents or of such other evidence as may be required. It may arrange for any measures of inquiry as may be necessary.” 4.     The Report of the Redesign Panel on the United Nations system of administration of justice In January 2006 the UN Secretary-General established the Redesign Panel on the United Nations system of administration of justice (the “Redesign Panel”) in reply to a request by the UN General Assembly expressed in its resolution 59/283 to establish a panel of external, independent experts to review and possibly redesign the system of administration of justice at the United Nations. The Redesign Panel issued its report on 28 July 2006. The relevant parts of the report read as follows: “ Summary ... The Redesign Panel found that the United Nations internal justice system is outmoded, dysfunctional and ineffective and that it lacks independence ... ... The Joint Appeals Boards ... should be replaced with a new, decentralized United Nations Dispute Tribunal presided over by independent, professional judges with power to issue binding decisions. The United Nations Administrative Tribunal should become a mainly appellate court of the internal justice system. Legal representation of staff members should be professionalized and decentralized ... ... II. Overview 5.     The Redesign Panel found that the administration of justice in the United Nations is neither professional nor independent. The system of administration of justice as it currently stands is extremely slow, underresourced, inefficient and, thus, ultimately ineffective. It fails to meet many basic standards of due process established in international human rights instruments ... ... 7.     ..., as a result of the jurisdictional immunities enjoyed by the Organization, staff members have no external recourse to the legal systems of Member States, while the Secretary-General may waive their functional immunity from action under national legal systems in certain cases. Thus, it is essential to have an internal justice system that both provides adequate safeguards and ensures accountability of staff members. The Redesign Panel finds that the system that exists at present is fundamentally inadequate for the task of administering justice. ... 9.     Third, establishing a professional system of internal justice is essential if the United Nations is to avoid the double standard — which currently exists — where the standards of justice that are now generally recognized internationally and that the Organization pursues in its programmatic activities are not met within the Secretariat or the funds and programmes themselves. These international standards include the right to a competent, independent and impartial tribunal in the determination of a person’s rights, the right to appeal and the right to legal representation. ... 11.     Neither the Joint Appeals Board (JAB) nor the Joint Disciplinary Committee (JDC), the main bodies in which the formal processes of the internal justice system are initiated, has power to take binding decisions. They can only make recommendations and thus cannot determine the rights or obligations of the persons concerned. This leaves UNAT as a one-tier justice system with no right of appeal. At the same time, JAB and JDC are composed of staff members acting in an advisory capacity to the Secretary-General and, thus, do not meet the basic standards required to guarantee their independence. That the administration of justice in the United Nations lags so far behind international human rights standards is a matter of urgent concern requiring immediate, adequate and effective remedial action. ... V. The Formal system 62.     The present formal justice system is based on the administrative law model, with the Secretary-General making final decisions on appeal following peer review. Those decisions may be challenged in UNAT... 63.     There are several advisory boards and committees within the formal system, of which the most significant are the JDCs for disciplinary matters and JABs concerned with appeals against administrative decisions affecting individual staff members ... These bodies are advisory in nature and are composed of staff members appointed by the Secretary-General and elected by the staff, with the Chairperson appointed by the Secretary-General. Members are volunteers who generally lack legal qualifications. They must attend to their normal duties in addition to their service on a JAB or JDC. ... 71.     A number of the difficulties within the formal justice system stem from the Statute and the jurisprudence of UNAT. By article 10.1 of its Statute, UNAT may order specific performance. However, it is required at the same time to fix compensation (normally limited to two years’ net base salary), which the Secretary- General may decide to pay as an alternative if that is considered to be in the interests of the Organization. The power of the Secretary-General to choose between specific performance and the payment of limited compensation can, and sometimes does, result in inadequate compensation, particularly in cases of wrongful termination or non-renewal of contract. A system that cannot guarantee adequate compensation or other appropriate remedy is fundamentally flawed. More significantly, a system that does not have authority to finally determine rights and appropriate remedies is inconsistent with the rule of law. 72.     The decisions of UNAT are not always consistent, and its jurisprudence is not well developed. In particular, it does not have a coherent jurisprudence as to the duties of an international organization to its staff. Thus, there is a widespread view, which is largely correct, that the formal justice system affords little, if any, protection of individual rights, such as the right to a safe and secure workplace or the right to be treated fairly and without discrimination. VI. Legal representation 100.     The Panel of Counsel, which was formally established in 1984 and which has the responsibility to provide legal assistance and representation to United Nations staff members in proceedings within the internal justice system, is extremely underresourced and is not professionalized. Yet as the first port of call in the formal justice system for staff members, and as a body that also plays an active role in the informal system by advising staff members on whether and how to seek informal resolution of disputes, its responsibilities are onerous. As a result, the current structure of and resources available to the Panel are fundamentally inconsistent with the goal of an efficient and effective administration of justice in the United Nations ... ... 105.     Moreover, there is no requirement for legal training or qualifications for service in the Panel of Counsel, and an overwhelming majority of individuals serving as counsel on the Panel lack legal qualifications. While these counsel are committed to their duties and perform to the best of their abilities, a “system of justice” in which something as important as the provision of legal advice and assistance to staff members of the United Nations is frequently undertaken by non-lawyers is unsatisfactory. 106.     The Redesign Panel notes that legal assistance to the management of the Organization is undertaken not by volunteers without legal training, but by a cadre of professional lawyers in the Department of Management and the Office of Legal Affairs. This disparity in legal resources available to the management and staff members has created an egregious inequality of arms in the internal justice system.” In 2007, based on the recommendations of the Redesign Panel and acting on a proposal by the Secretary-General, the General Assembly decided to introduce a new system for handling internal disputes and disciplinary matters in the United Nations. The new two-tier judicial system with a United Nations Dispute Tribunal and a United Nations Appeals Tribunal became operational on 1   July 2009. COMPLAINTS 1.     The applicant complains that the UN internal appeal proceedings were characterised by manifest procedural, substantive and practical shortcomings and did not meet the requirements of a fair trial in the meaning of Article 6 of the Convention. She alleges in this respect that she was deprived of an opportunity to challenge the veracity of her performance appraisals for the years 1999, 2000 and 2001 in the proceedings before the JAB and the UNAT since the Rebuttal Panel’s related decision in the preceding, purely internal, administrative review proceedings had not been subject to appeal and had thus become final. She further contends that she did not have the right to examine and challenge the evidence presented against her by management before the Rebuttal Panel in adversarial proceedings and within the scope of an oral hearing at any stage of the subsequent proceedings regarding her dismissal before the JAB and UNAT, even though the latters’ findings had also relied on such evidence. Moreover, she was denied professional legal assistance throughout the proceedings whereas the Organisation was represented by counsel. As regards the UNAT in general, she invokes that the selection process for UNAT judges lacked clear criteria regarding the qualifications required for their nomination. Judges were appointed for a short term with a renewable mandate and their impartiality and independence were thus not guaranteed. Complainants before the UNAT only learnt about the names of judges sitting in their case once the judgment was delivered and thus had no opportunity to challenge a particular judge for bias. Finally, the evident lack of consistency in the UNAT jurisprudence made the outcome of proceedings in a particular case random and thus unfair. Germany was to be held responsible for these deficient procedures that denied the applicant a protection of her fundamental rights equivalent to the Convention standards. Due to the Headquarters Agreement concluded between Germany and the UNV granting the latter immunity from German jurisdiction, any recourse to the German courts would have been futile and the defendant State had thus failed to guarantee her access to a fair and public hearing by an independent and impartial tribunal in the determination of her civil rights in breach of Article 6 of the Convention and had not provided her with an effective remedy as required by its Article 13. 2.     The applicant finally complains under Article 3 that she was subject to inhuman and degrading treatment by the acting senior officials of the Organisation and its sub-organisations. In particular, the said officials had repeatedly tried to intimidate her with a view to coercing her to accept an unfavourable agreement on the termination of her employment.     QUESTIONS TO THE PARTIES 1.     Did the facts of which the applicant complains in the present case occur within the jurisdiction of Germany and did they engage the responsibility of Germany under the Convention?   2.     If so, did the applicant have a fair hearing before the United Nations internal appeal bodies in the determination of her civil rights and obligations in accordance with Article 6   §   1 of the Convention? In particular,   (a)     has there been a public hearing in the present case; and   (b)     was the tribunal which dealt with the applicant’s case independent and impartial, as required by Article 6   §   1 of the Convention?   3.     Was the applicant’s right of access to the domestic courts respected?