The following passages are taken from the Rejoinder of 9 September 1999 or from the Application for Review (Rejoinder) of 19 September 2000. They give examples of the abusiveness of the dismissal, the general lawlessness that characterizes the OIE's French civil servant managers, and the reasons for reviewing the Administrative Tribunal's Judgment 1907 and for questioning its objectivity and impartiality.

Conflicts of interest, regular extraordinary bonuses and on-my-honour reimbursements

The OIE’s Regional Coordinator for Eastern Europe, Dr Nikola Belev, who in this capacity spends organisation funds, is also a member of the OIE’s Administrative Commission, a body with supervisory functions in the fields of financial management (cf. Document 55) (and, as it has been indicated elsewhere in the Brief and in the Rejoinder, in the area of dealing with staff issues).

At the end of 1998, the Director General granted this officer, who fulfils conflicting roles within the OIE, “an additional and exceptional payment” of three months wages (cf. Documents 17 and 56). On the issue of this “exceptional” wage payment, the Accountant subsequently stated “The 7500 USD in addition to his quarterly salary is exceptional (once a year only)...” (cf. Document 57).

Furthermore, this officer, with responsibilities for maintaining respect of the OIE’s Financial Regulations is regularly reimbursed by the OIE based not on original receipts or even copies thereof, but based on written declarations for items such as telephone and fax, and secretarial and translation services (cf. Document 58). This practice is in breach of OIE financial regulations, see 3.4 below. During the period 1993-1998, the total amount of such unofficial reimbursements for such purposes amounted to approximately 39 700 USD (17 700 USD for telephone and fax).
 

The Complainant supposedly wrong about being appreciated by the OIE

In his Brief of 6 April 1999, the Complainant referred to several events as proof that his services were considered satisfactory by the OIE, events such as: the passing of the three month probationary period without incident; gifts, dinner invitations and expressions of satisfaction with his services by OIE Regional Representatives/Coordinators; the Director General addressed a note to the Complainant expressing the OIE’s President’s and his own appreciation of the Complainant’s “professional competence and devotion to the reputation of the Office” ; the granting of a loan by the OIE to the Complainant; and the Director General’s forwarding of a note from a veterinary association expressing gratitude for the Complainant’s services. ... In its Reply of 21 June 1999, the OIE belittles these events.

Furthermore, recalling the OIE’s claim in its Reply that “[d]uring the first few months [of the complainant’s employment], the complainant’s behaviour gave his Head of Department cause to intervene in order to deal with several disputes arising between the complainant and the other members of staff,” the Complainant quotes Article 40.8 of the OIE’s Staff Rules (cf. Document 10):

Article 40.8 - Probationary period

The duration of the probationary period is defined in Articles 40.5, 40.6 and 40.7 above.

At the end of the probationary period, the Director General may:

- confirm the employment; - exceptionally and with the agreement of the staff member, prolong the probationary period for a new period at the most as long as the first period; or - end the employment of the staff member with ten days notice for a staff member hired temporarily or with one month’s notice for a staff member hired with a fixed term or indefinite term contract.

All or part of the notice period may be replaced by the payment of the corresponding salary and indemnities.

The Director General of the OIE performed none of the three acts mentioned above. The end of the probationary period passed as just a normal working day; the Complainant received no letter confirming his employment, was never asked to agree to a prolongation of the probationary period, and his contract was not terminated. Considering the OIE’s claim that already during the “first few months” the Complainant’s behaviour gave cause for concern, it is odd that the OIE let the probationary period pass without using the rules concerning it to manifest a need for improvement on behalf of the Complainant.
 

The Complainant supposedly committed fault(s) regarding an OIE-Thai agreement
 

In its Reply of 21 June 1999, the OIE maintains that the Complainant committed fault in the context of the issue of the agreement between the OIE and the Government of Thailand. This accusation was prominent in the Head of Department’s note of 29 December 1998 and in the Annual Professional Appraisal of 15 February 1999 (it was one of the three points held against the Complainant), although the wording on this issue has changed revealingly over time:

The Head of Department wrote in his note of 29 December 1998 to the Complainant:

...having recently edited a draft reply regarding a modification to the draft Agreement between the royal Thai Government and the OIE, you translated and sent this text without letting me review and verify the translation.

Your affirmation that I have translated and transmitted to the Royal Thai Government a draft agreement is erroneous, as close scrutiny of the records shows. I initiated no changes to the agreement, made no translation of it, and certainly did not submit it to the Thai Government on my own authority.

The only article that was changed between the September 1997 version and the final document signed in November 1998 was article 6(a). The change to article 6(a) was proposed on 27 October 1998, after negotiations with the Thai Government, to the Director General by Dr Laurence Gleeson (cf. Document 11). On 28 October 1998 this proposed amendment was recommended by Dr Yoshihiro Ozawa (cf. Document 12).

On 29 October 1998 Director General Blancou wrote to Dr Ozawa, with copy to Dr Gleeson, expressing satisfaction with the progress made on achieving the OIE-Thai agreement (cf. Document 13). On 29 October 1998 Dr Gleeson wrote to me stressing the urgent need to finalise negotiations in time for the Director General’s mission to Vietnam and Thailand, scheduled for the period 24 November 1998 to 2 December 1998.

On 2 November 1998 I, upon your instruction, sent a message to Dr Gleeson in which you expressed satisfaction with the proposed change to the basic agreement text from September 1997 (cf. Document 14). On Thursday 5 November 1998 Dr Gleeson asked me to provide, by the following morning by the latest, the redrafted version of the agreement to the Thai Delegate to the OIE, so that he and the OIE Regional Representative, Dr Ozawa, could discuss it (cf. Document 15). At the time, you were absent, the Director General had only just returned from mission, and I was not yet under the working restrictions currently in place. Therefore, in the interest of the Office and the South East Asia Foot and Mouth Disease Campaign project and mindful of our long-standing desire to conclude the agreement with the Royal Thai Government as well as of the approbations expressed by the Director General and yourself, I responded to Dr Gleeson’s pressing request.

It is therefore clear that I never, of my accord, made any changes to the agreement nor acted in a manner that contradicted the expressed instructions of my superiors. Furthermore, your satisfaction with this matter was clearly expressed in your note to me of 16 November 1998 (cf. Document 16), and in that of 17 November 1998 of the Director General to the Thai Delegate.

- Thailand/OIE Agreement: Nothing justifies that a final version be sent without being reread by the Director General, myself or my deputy.

... this note [the note of 29 December 1998] specifically reproached the complainant for having sent a draft agreement to the government of Thailand without the authorisation of his superiors...

On 13 January 1999, the complainant replied to the letter of 29 December from his Head of Department: he contested having sen[t] a draft agreement to the government of Thailand without the authorisation of his superiors but stated that he had acted at the request of Dr Gleeson, Head of an OIE Regional Coordination Unit in Bangkok...

During the annual procedure for the professional report ... the Head of Department indicated that, in the matter of the agreement with Thailand, there was no possible justification for sending a final version of the agreement without the authorisation of the Director General, himself or his Deputy...

... [the Complainant] repeated his point of view on the matter of the agreement with Thailand...

In the matter of the agreement with Thailand, even if, as the complainant states, he did not act on his own initiative, he should nevertheless have informed his supervisors of the envisaged amendments for an agreement which is solely within the competence of the Director General.

In its Reply of 21 June 1999 the OIE claims that audit “subsequently demonstrated the absences of any discrepancies” in the accounts of the OIE’s Regional Representation for the Americas at 30 September 1998, and that the Complainant had entered incorrect income amounts, omitted bank interests and double entered expenses. The OIE claims that this “episode clearly demonstrated the complainant’s lack of competence in managing accounts on the one hand and his lack of willingness on the other.”

As supporting evidence for these claims the OIE presents a note from the Director General to the OIE’s Administrative Commission, a note from the OIE’s External Auditor, Jacques Berthe, to the Director General, and a note from the OIE’s Chartered Accountant, L. Menuet, to the Director General.

The [OIE's] claim that the Complainant “entered incorrect income amounts, omitted bank interests and double entered expenses” is untrue and the “evidence” presented by the OIE does not support the organisation’s allegation:

1. Neither the note from the OIE’s External Auditor, nor the note from the OIE’s Chartered Accountant speaks of the Complainant entering incorrect income amounts.

2. Neither the note from the OIE’s External Auditor, nor the note from the OIE’s Chartered Accountant speaks of the Complainant omitting bank interest.

3. Neither the note from the OIE’s External Auditor, nor the note from the OIE’s Chartered Accountant speaks of the Complainant double entering expenses.

4. Neither the note from the OIE’s External Auditor, nor the note from the OIE’s Chartered Accountant refers to any appendices.

5. The only “evidence” given for the OIE’s claim that the Complainant entered incorrect income amounts, omitted interest or double entered expenses is to be found in the Director General’s note of 30 April 1999. This note refers to and leaves the impression that the notes from the External Auditor and the Chartered Accountant support such allegations, when these notes do not actually lend their support, explicitly or implicitly, to such allegations.

6. There is an incoherence between what the Chartered Accountant indicates was her/his mission and what she/he vouches for. The OIE’s accounting period, as defined in the OIE’s Financial Regulations (cf. Document 35) runs from 1 January to 31 December. She/he says his mission concerns the period 1 January to 30 September, while she/he vouches for the period 1 January to 31 December when the Directorate General closes the accounts.

8. As concerns the Chartered Accountant’s statement on the amount of expenditure of the OIE’s Regional Representation for the Americas for the period 1 January 1998 to 30 September 1998, 93 485.63 USD, the Complainant notes that this figure is in variance with that indicated by the head of the OIE’s Representation in question, Dr Emilio Gimeno (former President of the OIE International Committee), who, in his declarations on expenses incurred, declared “on my honour” that the total operating expenses of the Representation for the period amounted to: 95 531.55 USD (cf. Documents 36, 37, 38, 39 and 40).

11. The Complainant does not know if the External Auditor is aware that at least one of the invoices, concerning an expenditure for 567.19 USD (cf. Document 41) is 20 city blocks separate from the OIE’s office (cf. Documents 36, 37, 38, 39 and 40) in Buenos Aires as is clearly indicated by the Swedish Embassy in Buenos Aires in the attached note and map (cf. Documents 42 and 43). This receipt comes from a company which represents a total of 1891.62 USD in the “table of invoices posing problems” provided by the OIE. The External Auditor would have known this had he decided to contact the Complainant, as the Complainant encouraged him to do in his note of 9 April 1999 (cf. Document 44), but maybe this was all part of the “simplified invoicing” of which the External Auditor approves in his note of 13 April 1999.
 

Hidden disciplinary measures - the OIE’s disciplinary rules

In its Reply of 21 June 1999, the OIE addresses the Complainant’s claim that the “decision [of 26 February 1999] is an integral and unitary part of the moral harassment and hidden disciplinary measures ... to which the Complainant was subjected” and in reply the OIE states that

neither the services of the complainant nor his behaviour could in any was have justified disciplinary measures ... [i]t was in no way the intention of the Director General of the OIE to terminate the contract of employment on disciplinary grounds, without respecting the disciplinary procedures and in so doing abuse his authority.

CHAPTER IX

DISCIPLINARY MEASURES

Article 9.1.

Those staff members who fail in their professional duties shall be liable to disciplinary action in accordance with the seriousness of their offence.

Article 9.2.

The Director General shall apply the following disciplinary measures:

a. warning;
b. reprimand;
c. temporary discontinuance of work with or without salary.

The following disciplinary measures:

d. withholding within-grade increase;
e. demotion;
f. dismissal,

shall be proposed by the Director General to the Administrative Commission who shall decide on the matter after hearing the staff member’s point of view.

1. the Complainant did not prepare documents “in accordance with the habitual formats used by officials of the OIE” and that working documents prepared for a meeting in November “did not conform to OIE practices nor did it meet OIE standards” ;
2. the Complainant had translated and, without authorisation, transmitted a draft proposal to the Thai Government ;
3. the Complainant, through his lack of “professionalism,” endangered the preparation of a meeting ;
4. the Complainant was “threatening” and “brutal” in his correspondence and dealings with staff and inconsiderate to OIE suppliers ;
5. the Complainant did not “succeed in mastering completely the different aspects” of financial follow-up.

The Complainant recalls that in its Reply the OIE has added to those accusations the following:

1. the Complainant declined to perform duties directly demanded by the Director General ;
2. the Complainant delayed a transfer that he had been instructed to perform ;
3. the Complainant’s work and behaviour had given cause for concern from the first months of his service ; and
4. constant comments were made against the Complainant, etc.

Considering the accusations made against the Complainant, both before and after the Director General’s decision of 26 February 1999, and Article 9.1 of the OIE’s Staff Regulations, one must wonder why the OIE has disciplinary rules (which clearly state that they shall be applied). It is unreasonable to not consider the supposed actions, behaviours, etc. on behalf of the Complainant as constituting failure in his “professional duties” that should have made him “liable to disciplinary action in accordance with the seriousness of [his] offence”. Yet no warning was made. No reprimand was expressed. The Complainant was not ordered to discontinue work temporarily.

The OIE wants the Tribunal to believe that the importance of the alleged failings on the Complainant’s part were not serious enough for the OIE to be obliged to make use of its statutory rules concerning staff members that fail in their duties, but that these failings were serious enough to justify termination of his contract with the motivation that his services had ceased to be satisfactory, and that this behaviour and the OIE’s decision of 26 February 1999 do not indicate a hidden disciplinary measure.

If the Complainant’s services had actually been as the OIE claims, the OIE would and should have applied its disciplinary rules. The OIE did not do so. The combination of the OIE’s affirmation that “neither the services of the complainant nor his behaviour could in any was have justified disciplinary measures,” the nature of the OIE’s accusations against the Complainant, and the binding rules laid down in the OIE’s Staff Regulations, is proof of the OIE’s abusive and inconsiderate attitude towards the rights of the Complainant, the OIE’s disregard for its own rules, as well as proof that the OIE’s accusations were groundless.
 

Disregard of Resolutions passed by the OIE’s International Committee

On 19 May 1995, the International Committee of the OIE, the highest decision making body of the organisation, passed Resolution No. XIX concerning the Mandate and Rules for OIE Regional Representations (cf. Document 49). This text specifies, under II.2, that the length of the Coordinators contracts should be three years. As a rule, the contracts signed by the Director General and the Coordinators prescribe a shorter duration (cf. Documents 50, Article II, and 51).
 

Misleading information to Delegates of Member States

In October 1998, upon the Head of Department’s proposal (cf. Document 51), the Director General, wrote to the members of the OIE Regional Commission for the Middle East, informing them that the Lebanese Government had proposed Dr Ghazi Yehya (former Lebanese Delegate to the OIE, former member of the OIE Administrative Commission, former External Auditor of the OIE) for the position of Regional Coordinator for the Middle East (cf. Document 52).

After verifying the dossier, the Complainant informed the Head of Department that there was no trace of a Lebanese Government proposal concerning Dr Yehya for the position of Regional Coordinator (cf. Document 53). The Head of Department responded that “indeed, all has been verbal, but I think the Lebanese Government is in agreement” (cf. Document 54).
 

Disregard of the OIE’s Financial Regulations

Article 10 (on Internal Control) of the OIE’s Financial Regulations stipulates that the Director General “shall fix the rules and methods of the accounting principles to be applied” within the OIE, and Article 13 (on Delegation of Authority) of the OIE’s Financial Regulations (cf. Document 59) stipulates that:

The Director General may delegate to other members of the Office all powers, he considers necessary to ensure the correct implementation of these Regulations. These officials shall not delegate the powers conferred on them by the Director General.

Patrick, Attached: photocopies of Dr Belev’s plane tickets. He keeps the originals in his archives. The photocopies are fine for OIE reimbursement purposes. Gary.

The Director General acted Ultra vires to create pension fund advantages for French civil servants on loan to the OIE

In 1991, the Director General took Decision 20.203 concerning OIE staff members who are French civil servants, among them the Head of Department, on loan to the OIE from the French civil service (cf. Document 62). This matter is dealt with in some detail in Appendix I but can be summarised as follows:

This decision permitted French civil servants on loan to the OIE and the Director General himself to benefit from the OIE Pension Fund and it provided them with an opportunity to circumvent French rules and thereby to illicitly benefit from two pension plans. Furthermore, it placed French civil servants on a privileged basis compared to that of other OIE staff.

Decision 20.203 was taken ultra vires by the Director General as it did not conform to the requirements of several OIE rules (cf. Document 63). For example, Decision 20.203 modified a statutory text of the OIE and should have been taken by the OIE’s International Committee. Decision 20.203 created new financial charges to the OIE that should have been approved by the International Committee.

The Director General took Decision 20.203 disregarding the Staff Representatives and he subsequently refused that the OIE pay for a legal counter-opinion to the legal opinion obtained (after the taking of the decision...) and paid by the OIE. The Staff Representatives presented several arguments against the proposal (creation of privilege, illegality vis-à-vis OIE rules and French legislation) and presented alternatives (de-linking from the French system, unemployment insurance for other OIE staff), to no avail. This matter clearly shows the OIE management’s complete disregard for rules and fair treatment of staff.
 

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.

Impartiality - Determining existence/absence of

The impartiality of a tribunal may be subject to challenge if the public is entitled to question, on the basis of ascertainable facts, that the fairness of the judge or tribunal was capable of appearing open to doubt. Courts have identified common situations that will attract an allegation of bias or reasonable apprehension of bias, such as:

1. the judge or someone linked to him has a material or other interest in the outcome of the case;
2. the judge has an association or prior involvement (professional, personal, other) with one of the parties;
3. the institutional structure of the decision-making environment brings undue influence to bear upon the judge or fetters his objective consideration of the evidence;
4. the institutional structure of the decision-making environment favors one of the parties.

The test is what the informed person, viewing the matter realistically and practically and having thought the matter through, would conclude. The informed person must be presumed to have knowledge of any safeguards in place.

The European Court of Human Rights applies two tests to determine whether a tribunal is impartial. The first is a subjective test that is based on the personal conviction of a particular judge in a given case. The second, is an objective test that ascertains whether the judge offered guarantees sufficient to rule out any legitimate doubt as to his impartiality. In the subjective test, the impartiality of a judge has to be presumed until proven otherwise. The objective test, on the other hand, examines ascertainable facts that may raise doubts about a certain judge.

The objective test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further, the reasonable person must be an informed person with knowledge of all the relevant circumstances.
 

The links between the OIE and the Tribunal

The Judges who produced Judgment 1907 were:

1. Mr Michel Gentot, President of the Tribunal, 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.
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. The External Auditor of the OIE at the time of the dismissal of, and complaint by, the Complainant was Mr Jacques Berthe [who is also a French civil servant].

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

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.

The “school” that the President of the Tribunal, Mr Michel Gentot, and the OIE External Auditor, Mr Jacques Berthe, attended is the prestigious, elite French civil service school l’Ecole nationale d’administration (ENA) at which those intended for top level civil service careers are trained to be a coherent group of state and political cadres. On the official web site of the ENA  [source information provided in the Application for Review, Rejoinder] the “school” describes itself in the following manner:

L’Ecole nationale d’administration was created in 1945 by the Provisional French Government … [and is] directly linked to the Prime Ministers office …. 4 200 of the 5 334 French students that have been trained at ENA are still in active service.… 83% of the students pass their entire career within the civil service or state owned companies.

It is relevant here to note that the evidence, disregarded by the Tribunal, provided by the Complainant/Applicant regarding accounting irregularities involved Mr Berthe’s responsibility and professional reputation. The accounting certificates Mr. Berthe provided to the OIE contained figures that contradicted even those provided by the OIE official, a former OIE President, concerned.

The “Institute” that the President of the Tribunal, Mr Michel Gentot, was the Director and at which the OIE legal consultant worked while Mr. Gentot was Director, is the prestigious Institut d’études politiques de Paris, also simply known as Sciences-Po. In an article in the French publication Le Monde Diplomatique [source information provided in the Application for Review, Rejoinder] Sciences-Po is described in the following manner:

Sciences-Po holds a rather unique monopoly as regards recruitment: that relating to the Ecole nationale d’administration [the ENA mentioned above], meaning that of the upper civil service, meaning those that lead the State.… the Institute has very few permanent lecturers … the non-permanent lecturers, almost the entire faculty, are chosen by the management. Such a system gives management control over what is being taught. … It is reasonable to believe that the non-permanent lecturers stay out of the institution’s politics as they are not greatly involved in its operations and as they owe their appointment to the management.… This patronage based system in part explains the institution’s power within the State: a large part of the upper civil service recruited by the ENA has been trained at Sciences-Po … The legal framework and relationship with government are handled as could boast a former Director: “We are the most autonomous establishment in France, as we can pride ourselves on having written on our own the decree that governs us”. (Michel Gentot, 1985).

The Tribunal’s rules on the selection of judges for cases

There is nothing in the Tribunal’s Statutes and Rules that forced the Tribunal’s President, Mr Michel Gentot, to appoint either himself or Judge James Hugessen to the Applicant’s complaint against the International Office of Epizootics. The relevant rules are:

Article III (3) of the Statute of the Tribunal: A meeting of the Tribunal shall be composed of three judges or, in exceptional circumstances, five, to be designated by the President, or all seven.

Article 1 (4) of the Rules of the Tribunal: If the President is unable to act, the Vice-President or, if the Vice-President is unable to act, the senior judge shall exercise the functions of President at and between sessions.