Table of Contents
 

    1. Introduction

    2. Admissible reasons for review as determined by the Tribunal in its jurisprudence

    3. Basic Principles of Law that must apply also to the Tribunal

    4. The Tribunal’s Judgment 1907 of 3 February 2000

    5. Links between the Tribunal that produced Judgment 1907 and the OIE

    6. Reasons why Judgment 1907 should be reviewed

6.1 Disregard of material fact
6.2 Material error
6.3 Failure to rule on a claim
6.4 Reasonable and intolerable doubt regarding the impartiality, independence and objectivity of at least one of the judges
6.5 Breach of Article VI of the Statute of the Administrative Tribunal of the ILO

On 26 February 1999, the International Office of Epizootics (henceforth “OIE”), terminated Patrick Reis-Ekelund’s (henceforth “Complainant” or “Applicant”) employment with the OIE, with the motivation that his services were no longer satisfactory. On 6 April 1999, the Complainant filed a complaint against the OIE with the Administrative Tribunal of the International Labor Organization (henceforth “Tribunal” and “ILO”, respectively). In his Brief the Complainant claimed, and substantiated with relevant supporting materials (documents, OIE rules and Tribunal judgments) that

the [OIE] Director General’s decision to terminate his employment is in irregular form, is tainted with procedural irregularities, abuse and illegality and is based on incorrect facts, and that the decision is an integral and unitary part of the harassment and hidden disciplinary measures, as evidenced by the behaviour and claims of the OIE’s managers, to which the Complainant was subjected to during the four month period preceding the Director General’s decision.(1)

On 3 February 2000, the Tribunal rendered Judgment 1907 which dismissed the complaint in no unclear terms. The Complainant received the judgment on 14 February 2000 after having called the Tribunal’s Registry to receive his official notification. With this Application for Review, the Applicant is requesting that the Tribunal review its decision. This Application is submitted in six copies, by means of registered post, in conformity with the formal requirements of the Tribunal’s rules. Two supporting documents are attached.

(1) Complainant’s Brief of 6 April 1999, page 1

2. Admissible reasons for review as determined by the Tribunal in its jurisprudence

The Tribunal considers its judgments to be final and beyond appeal, they are res judicata. Nevertheless it has granted itself limited powers of review. The Tribunal has decided that it itself will determine the true nature of the plea, in whatever terms the applicant for review may cast it.

In Judgment 442 (and other rulings) the Tribunal has defined which pleas are inadmissible in support of an application for review. The following pleas are considered inadmissible by the Tribunal: a mistake of law, mistaken appraisal of evidence, failure to admit evidence and failure to comment on a plea. In the same (and other) ruling the Tribunal has defined which pleas are admissible provided that they are such as to affect the ruling the complainant wants reviewed: disregard of some material fact, a material error (i.e. a mistaken statement of fact as against misappraisal of evidence), failure to rule on a claim, and the discovery of some “new” fact.

It is clear that the Tribunal has given itself wide-ranging and discretionary powers as regards its freedom to determine legality, reality and truth. The Tribunal is beyond scrutiny and appeal. This is a status which in the best of cases leads to somewhat expedient but efficient justice; in the worst to arbitrariness and injustice.

3. Basic Principles of Law that must apply also to the Tribunal

Few would dispute that a Tribunal, be it criminal, civil, or administrative, must conform with natural law principles regarding the impartiality, independence, objectivity and equal treatment of parties. Such principles must be absolutely respected for justice to be done and for it to be seen to be done.

A Tribunal that does not guarantee, in word and deed, that it respects such basic principles of law fails its duty towards parties pleading before it (and to third parties whose rights are also in play) and so ceases to be a tribunal of law and justice. The legitimacy of the Tribunal and of its decisions becomes open to question. Judges deciding a case must be scrupulously free of entanglements or interests, professional or personal, linking them to one or the other of the parties. If they are not free of such links, they should desist from handling the case in the interest of justice and basic prudence and propriety. To not do so places intolerable and unacceptable doubt on the institution and its decisions.

The imperative for impartiality, independence and objectivity is all the greater considering the final nature, the res judicata status, of the Tribunal’s decisions and the Tribunal’s rules regarding the admissibility of applications for review. A complaining official does not have the right, as does the defendant organization, to appeal to a higher body (2). The fact that a defendant organization can question the validity of the Tribunal’s decisions due to fundamental fault of procedure must further strengthen a complaining official’s right to expect absolute and doubtless impartiality, independence and objectivity on behalf of the Tribunal and its judges.

So, to the list of admissible pleas for review set by the Tribunal one must add another: reasonable doubt as regards the impartiality, independence and objectivity of one or several of the judges of the Tribunal.

(2) Annex of the Statute of the Administrative Tribunal, Article XII

4. The Tribunal’s Judgment 1907 of 3 February 2000

In its Judgment 1907 of 3 February 2000, the Tribunal decided to dismiss the Applicant’s complaint against the OIE. It is clear that the Tribunal has accepted the OIE’s word before the Complainant’s and that it is enough for the OIE to merely claim something, however inconsistent with the tangible evidence, for it to be taken seriously and considered truthful. The OIE has the benefit of the doubt, while the Complainant benefits from no such positive capital.

Considering the Tribunal’s rules concerning applications for review, the Applicant sees no purpose in delving in depth on the numerous important omissions, distortions and misreading that characterize Judgment 1907. The Tribunal has obviously preferred the OIE’s lies and unevidenced and incoherent allegations and claims to the Complainant’s truths, testimonials, arguments and evidence. The OIE’s smear tactics have carried the day and the Complainant’s factual approach has left the Tribunal cold.

Although the Tribunal’s rules render the above possible, there are nevertheless a number of points which, fitting the Tribunal’s tough rules on admissibility for review, call for review of Judgment 1907.

5. Links between the Tribunal that produced Judgment 1907 and the OIE

The Judges that produced Judgment 1907 were:

1. Mr Michel Gentot, a senior French civil servant who is Head of Department at the French Council of State and President of the French National Commission on Computers and Liberties (cf. Doc 1).
2. The Honourable Justice James Hugessen, Judge of the Federal Court of Canada.
3. Miss Mella Carroll, Judge of the Irish High Court.

The Director General of the OIE and the Head of the OIE’s Administrative and Financial Department at the time of the dismissal of, and complaint by, the Complainant were Dr Jean Blancou and Mr Guy Jannot, respectively, both French civil servants.

The OIE’s legal adviser at the time of the dismissal of, and complaint by, the Complainant was Dr Daniel Bardonnet (cf. Doc. 2). The External Auditor of the OIE at the time of the dismissal of, and complaint by, the Complainant was Mr Jacques Berthe (cf. Doc 2).

Mr Gentot was the Secretary General, later Director, of the Paris Political Science Institute from 1978 to 1987 (cf. Doc 1). The OIE’s legal advisor, Dr Bardonnet, was a Senior Lecturer at the Paris Political Science Institute from 1975 to 1984 (cf. Doc 1). Both Mr Gentot and Mr Berthe are alumni, consecutive years, of the select French national civil service school (l’Ecole nationale d’administration) (cf. Doc 1).

Furthermore, it is noteworthy that the President of the OIE at the time of the dismissal of, and complaint by, the Complainant was Dr Norman Willis, a Canadian senior civil servant. The Deputy Head of the OIE’s Administrative and Financial Department at the time of the dismissal of, and complaint by, the Complainant was Mr Gary Sutherland, a Canadian national.

6. Reasons for reviewing the Tribunal’s decision

There are five major reasons why, independently and together, the Tribunal review Judgment 1907: crucial disregard of fact, crucial material error, failure to rule on a claim, reasonable doubt regarding the impartiality, independence and objectivity of one, maybe two, of the judges judging the case (3), and breach of Article VI of the Tribunal’s Statute.

6.1 Disregard of material fact

In Judgment 1907, in particular the considerations section, the impression is given that the Complainant/Applicant responded poorly to the OIE’s criticism of him and his work. Under 8 and 9 in the considerations section the Tribunal states:

The record shows clearly that the complainant was given ample opportunity to respond, and did respond, to the complaints made about his services.

The complainant was given ample notification of the decision and of the reason for it. He was also given an opportunity to be heard and to provide his comments during the entire process.

The Complainant sent six notes to the OIE’s management (before being dismissed) replying in detail to its accusations and asking for clarification. All these letters were provided to the Tribunal with the Brief and the Rejoinder. None of these notes, with the only exception of the Annual Professional Appraisal are mentioned in the Tribunal’s judgment. These letters from the Complainant to the OIE are crucial facts, not matters of validity of evidence for the Tribunal to admit or disallow as it sees fit. These replies were all sent by registered mail, they are tangible and the Tribunal has quite unjustly (and with no motivation) disregarded them.

6.2 Material error

In Judgment 1907 the Tribunal fully accepts the OIE’s claim that the Complainant failed in the field of accounting and the Tribunal lends its support to the OIE’s assertion that the accounts of the OIE’s regional office for the Americas were correct. Under 4 and 12 in the considerations the Tribunal states:

At the initiative of the Director General, the complainant was accorded an interview with the President of the International Committee of the OIE, who also presides over the Administrative Commission, on two successive days, 18 and 19 February 1999. At those meetings the complainant continued to insist, as he had on a number of previous occasions, that he had discovered irregularities in the accounts of the Office’s regional office for the Americas, notwithstanding the fact that those accounts had been examined by both the internal and external auditors of the OIE and had specifically been found to be in order.

Finally, as to the substance of the decision, the evidence, far from showing that the decision was based on a wrong or improper appreciation of the facts, indicates that the complainant’s actions, in particular with regard to the accounts of the OIE’s office in the Americas, were wholly unjustified.

The auditors examinations and statements, provided by the OIE to the Tribunal, date well after the Complainant met with the OIE’s President and well after the Complainant was dismissed by the OIE’s Director General. The External Auditor’s statement is dated 13 April 1999 and the External Accountant’s statement is dated 27 April 1999 (5). This is irrefutable proof that Tribunal has committed material error when it claims that “those accounts had been examined by both the internal and external auditors of the OIE and had specifically been found to be in order”. That this material error must significantly affect the Tribunal’s ruling is clear from the dismissive and shattering statement:

Finally, as to the substance of the decision, the evidence, far from showing that the decision was based on a wrong or improper appreciation of the facts, indicates that the complainant’s actions, in particular with regard to the accounts of the OIE’s office in the Americas, were wholly unjustified.

6.3 Failure to rule on a claim

In his Brief and in his Rejoinder, the Complainant claimed that the OIE had made false accusations regarding an OIE-Thai agreement. In the Rejoinder (page 18), after going through all the relevant documentary evidence (which was provided in full to the Tribunal), this claim is expressed as follows:

It is clear from these texts and the supporting evidence presented by the Complainant that the OIE’s criticism, in its initial (drafting, translation and transmission of the agreement), second (transmission) or third form (failure to inform superiors of the envisaged amendments), is erroneous. This entire matter is proof that the Complainant was dismissed based on incorrect facts, as well as proof of the OIE’s ill-will and bias against the Complainant and of the OIE’s absence of respect for norms concerning objective and fair treatment of staff members.

6.4 Reasonable and intolerable doubt regarding the impartiality, independence and objectivity of at least one of the judges

Naturally, the Applicant cannot prove that Mr Michel Gentot has been biased in favor of the organization employing his former colleague (Dr Bardonnet) and his fellow alumni (Mr Berthe), but the suspicion of such bias most certainly exists. That such doubt exists can only be considered an intolerable injustice that must be rectified.

This reasonable doubt taints the Tribunal’s authority and the validity of Judgment 1907. This doubt is all the more unacceptable considering the Tribunal’s near absolute powers in determining law, reality and truth. There is serious reason to fear a miscarriage of justice which puts in question the fairness and authority of the Administrative Tribunal of the International Labour Organization in general and of judgment 1907 in particular.

For the sake of prudence and legal ethics, Mr Gentot should have desisted from dealing with a case involving the organization to which his former colleague Dr Bardonnet belongs. To desist was all the more necessary considering the evidence provided by the Complainant on pension fund (and other) shenanigans by the French official running the OIE (evidence which is not mentioned at all in Judgment 1907).

Considering the established direct links between the OIE’s legal adviser and the President of the Tribunal (the possibility of such links between a second judge and the President of the defendant organization is recalled), the Tribunal’s decision must be considered tainted and procedurally flawed. A full, complete and open review is necessary in the name of justice.

6.5 Breach of Article VI of the Statute of the Administrative Tribunal of the ILO

Article VI (2) says that: “The reasons for the judgment shall be stated.” Under 12 in the considerations section of Judgment 1907 the Tribunal states:

Finally, as to the substance of the decision, the evidence, far from showing that the decision was based on a wrong or improper appreciation of the facts, indicates that the complainant’s actions, in particular with regard to the accounts of the OIE’s office in the Americas, were wholly unjustified.

(3) It is recalled that the Tribunal arrives at a Judgment by a majority vote of the three, five or seven judges working on the case. That at least one, maybe two, maybe all of the Judges (although the Applicant has not at this time been able to identify a clear link between the third judge and the OIE), flaws the procedure beyond repair and necessities full, complete and open review.
(4) The Tribunal makes no mention of the OIE-Thai matter: The OIE accused the Complainant of making unauthorized translations and transmissions of an international agreement to a member state. This event in itself, where there is black on white proof of the OIE’s liberal attitude to truth and fact, proves beyond any doubt that the decision to dismiss the Complainant was illegal. This issue was one of the three main “reasons” for the OIE’s dismissal of the Complainant…
(5) OIE Reply, Doc. XV, Appendix III and IV

7. Conclusion and plea

In this Application for Review the Applicant has provided five reasons why Judgment 1907 must be reviewed. Each of the reasons is sufficient to require review of the judgment.

1. Recalling the Tribunal’s rules regarding admissible reasons for review, the Applicant has drawn the Tribunal’s attention to a disregard of material fact which clearly must affect its decision.

2. Recalling the Tribunal’s rules regarding admissible reasons for review, the Applicant has drawn the Tribunal’s attention to a material error which clearly must affect its decision.

3. Recalling the Tribunal’s rules regarding admissible reasons for review, the Applicant has drawn the Tribunal’s attention to the fact that it has failed to rule on one of his claims and that this clearly must affect the decision.

4. The Applicant has drawn the Tribunal’s attention to the fact that its impartiality, independence and objectivity have, by no fault of the complainant, been put in doubt and that the Judgment is procedurally flawed. There is a clear danger of injustice caused by the Tribunal and the ILO.

5. The Applicant has drawn the Tribunal’s attention to the fact that it cannot be considered that it has abided with its duty, laid down in Article VI of its Statutes, to meaningfully and clearly state the reasons for its decision.

The Applicant requests that the Tribunal review his case in a spirit and structure guaranteeing fair and just process. Furthermore, the Applicant requests that such a review take place with full public hearings and that all the parties mentioned in all the submissions leading to Judgment 1907 and all the parties partaking in the production of Judgment 1907 be called as witnesses to be heard under oath.
 

Paris, 10 April 2000
 

Patrick Reis-Ekelund