Abstract
In order to ensure independent functioning of their powers, international organisations are furnished with privileges and immunities conferred upon them by their constituent statute or a general treaty. That effectively means that they will be immune from the jurisdiction of national courts in matters including employment disputes of their staff. In order to enjoy this functional immunity and to provide their staff a means to resolve their disputes with the administration, international organisations have either set up their own internal administrative tribunals or have submitted to the jurisdiction of another existing international administrative tribunal. Whether or not an international organisation’s jurisdictional immunity will be recognised by domestic courts or the European Court of Human Rights (“ECtHR”) depends on the existence and effectiveness of an internal dispute mechanism alternative to the jurisdiction of national courts.
Ms. Ucar Tagney is a lawyer at the European Court of Human Rights. M. Stojanoski is an assistant lawyer at the European Court of Human Rights and a PhD student at the University of Strasbourg, SAGE laboratory. The views expressed in this article are solely those of the authors and do not represent those of any institution.
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Notes
- 1.
In the case of Council of Europe, see General Agreement on Privileges and Immunities of the Council of Europe, Paris, 2 September 1949 European Treaties Series No. 10.
- 2.
The International Labour Organisation Administrative Tribunal (ILOAT) is the biggest international administrative tribunal competent to examine staff disputes of 57 other international organisations who have subscribed to its jurisdiction. However not all international organisations have followed the arduous path of setting their own tribunal or subscribing to the jurisdiction of another, the Commonwealth foundation, has for example chosen to lift its immunity for staff disputes and submitted to the jurisdiction of the national labour courts of the host State (England).
- 3.
The ECtHR has recognized that the attribution of privileges and immunities to international organisations is an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments, and that it pursues a legitimate aim. However, whether a claimant’s right of access to court has been unduly restricted will be assessed by the yardstick of “availability of reasonable alternative means” see Waite and Kennedy v. Germany [GC], no. 26083/94, §§68-72, ECHR 1999-I, and Chapman v. Belgium (dec.), no. 39619/06, 5 March 2013.
- 4.
For a quantitative comparison of international organisations’ internal justice systems, see the CoE-IJS legitimacy index, published every year at the International Administrative Law Centre of Excellence’s website: http://www.ialcoe.org/legitimacy-index/. The index scores and ranks international organisations based on how compliant their internal justice systems are with the criteria set by customary international human rights law. In 2018 the Council of Europe’s internal justice ranked third among the 35 organisations surveyed.
- 5.
- 6.
See Article 10, Universal Declaration of Human Rights. 10 December 1948, General Assembly Resolution 217A (III). U.N. Doc A/810, p. 71; Articles 6 and Article 13 of the European Convention on Human Rights, 4 November 1950. 213 United Nations Treaty Series 221; Article 14 of the International Covenant on Civil and Political Rights, 16 December 1966. 999 United Nations Treaty Series 171; Articles 8 and 25 of the American Convention on Human Rights, 22 November 1969. 1144 United Nations Treaty Series 123; Article 7, African Charter on Human and Peoples’ Rights. 27 June 1981. 1520 United Nations Treaty Series 217.
- 7.
See, for example, the Waite and Kennedy judgment, cited above.
- 8.
The fact that complaints procedure and therefore an appeal to the Tribunal is only open to staff members can be detected in the wording of Article 59 §§ 1–2 and 8 of the Staff Regulations.
- 9.
See Sibel Sadir Yıldırım v. Secretary General Appeal No. 580/2017 (ATCE, 24 January 2018) concerning a complaint brought by a Turkish national judge who had participated in a selection process for secondment to the Registry of the European Court of Human Rights as an assistant lawyer. The case is noteworthy because seconded officials are not considered as staff members in so far as they remain employed by the national state and receive no salary from the Council of Europe. Furthermore, secondment to the Council of Europe does not require the candidates passing a competitive recruitment procedure (see Resolution (2012)2 adopted by the Committee of Ministers on 15 February 2012 at the 1134th meeting of the Ministers’ Deputies). Nevertheless the Tribunal held that the dispute fell within its competence ratione personae since, first and foremost, the applicant could not be expected to bring her grievances against Turkish authorities since they took no part in the part of the procedure the applicant complained of, and secondly, the tribunal found that the recruitment procedure effectuated by the Registry of the European Court of Human Rights was not a simplified procedure but had been in fact akin to the competitive recruitment procedure set out in Article 15 of the appendix II of the staff regulations. It would appear therefore that secondment through a simplified procedure, which is the case when the Secretary General appoints an official on the basis of the proposals received from the Permanent Representatives of the member States or, as the case may be, the Heads of international organisations without a separate competition procedure, would fall outside the jurisdiction of the Tribunal.
- 10.
It is interesting to contrast this with the statute of the administrative tribunal of the OECD, which does not limit standing to the official staff association but to other staff unions or other professional organisations.
- 11.
IMF administrative tribunal (“IMFAT”), the administrative tribunal of the Asian Development Bank, ILOAT or United Nations Dispute Tribunal (“UNDT”) are notable examples which grant no standing to staff associations. However, unlike the situation in ATCE, a “regulatory decision”—that is any rule concerning the terms and conditions of staff employment, excluding the resolutions adopted by the Board of Governors of the Fund—may be challenged directly by a staff member before the IMFAT without there being an individual decision affecting that staff member.
- 12.
By way of example, in a case where the Staff Committee sought to set aside ad personam decision made by the Secretary General by means of a derogation from the rule that prohibited a staff member past the age of 65 being employed by the organisation, ATCE rejected the action on the grounds that the Staff Committee had no direct interest in the dispute in so far as it was not subject to the measure in question, see Staff Committee (VII) v. Secretary General, Appeal no. 305/2002 (16 May 2003).
- 13.
European Patent Organisation & State of the Netherlands v Vakbondsunie Van Het Europees Octrooibureau (VEOB) & Staff Union of the European Patent Office (SUEPO), Case no. 15/02186.
- 14.
The Supreme Court of Netherlands relied on the case law of the ECtHR while noting that national law offered more protection in this respect.
- 15.
See Ryngaert (2017).
- 16.
See Kloth (2010).
- 17.
Similarly, it is doubtful whether the Secretary General himself may apply to the Tribunal, as a specially appointed official, see Sansotta (2013), p. 4.
- 18.
See Pedro Agramunt Font de Mora v. Secretary General, Appeal No. 584/2017 (24 January 2018).
- 19.
Sansotta (2013), p. 6.
- 20.
Created during the reform of the United Nations internal justice system, Office of Staff Legal Assistance (OSLA) is unique in that it provides free and independent legal advice and representation for staff members falling within the jurisdiction of the UNDT and UNAT. While free legal advice is available to all staff, OSLA accepts formal representation only when it considers a case has a reasonable chance of success. When it declines representation, the staff members is accorded with a reasoned decision, see Leighton (2014).
- 21.
See Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59–61, ECHR 2005-II.
- 22.
The ECHR has noted that the resolution of the issue of court costs may have implications for the fairness of the proceedings as a whole (see, for example, Stankiewicz v. Poland, no. 46917/99, § 60, ECHR 2006-VI).
- 23.
See, Leighton (2014), p. 142.
- 24.
See Arnim (2017), cited above, p. 354.
- 25.
See, for example, Krčmář and Others v. the Czech Republic, no. 35376/97, § 40, 3 March 2000.
- 26.
See, Sansotta (2013), p. 7.
- 27.
See, Bilge Kurt Torun v. Secretary General, Appeal no. 543/2014 (30 January 2015) concerning the non-disclosure sample of questions put to the candidates during a recruitment procedure; See Régis BRILLAT (III) and Riccardo PRIORE v. Secretary General, Appeal Nos. 582/2017 and 583/2017 concerning non-disclosure of the findings of the harassment committee; see, Levent Ercan v. Secretary General, Appeal no. 460/2009 (28 April 2010) concerning the non-disclosure of the records of meeting of the Appointments Board.
- 28.
Contrast this with IMFAT, which has an explicit rule on anonymity where such requests are decided after receiving the defendant’s comments.
- 29.
See the views expressed for and against more flexibility towards anonymity in international administrative tribunals, in International Colloquy: Common Focus and Autonomy of International Administrative Tribunals, held in Strasbourg on 19–20 March 2015 (Council of Europe, 2017) available at http://www.coe.int/T/AdministrativeTribunal/Source/ConferenceTACE2015_en.htm.
- 30.
In that respect, in the case of most other international administrative tribunals, oral hearings are not mandatory ILOAT statute for example leaves it to the discretion of the tribunal to hold a hearing and it is observed that before this tribunal hearings are very rarely held. In the case of IMFAT, parties have a possibility to request it or the tribunal may decide on its own motion to hold a hearing. In the case of UNDT, statutory provisions require for a hearing in disciplinary measures. In others it is up to the discretion of the judge hearing the case.
- 31.
The Staff Regulations and the appendixes thereto are an extensive volume of law which govern employment issues with regard to Council staff members. They were adopted by Resolution Res (81)20 of the Council Committee of Ministers on 25 September 1981, with the exception of Appendix VIII, which was adopted by Resolution Res (83)12 of 15 September 1983. At the moment they are available in their integrity on the website of the Council at https://rm.coe.int/0900001680790b3f.
- 32.
Article 62 stipulates: The Secretary General shall issue rules, instructions or office circulars laying down the provisions for implementation of these Regulations. Implementing provisions entailing a financial commitment shall be subject to approval by the Committee of Ministers.
- 33.
The rules of procedure entered into force on 1 September 1982. They were subsequently modified on 27 October 1994 and 30 January 2002.
- 34.
A brief search of its case-law, which is publicly available (https://www.coe.int/en/web/tribunal/case-law-of-the-administrative-tribunal) reveals that these cases do not lack in complexity, but rather the Tribunal had established case-law on the issue and was is possession of sufficient resources to reach its decision.
- 35.
Yakimova v. Secretary General, appeal No. 560/2014 (22 October 2015) (in some places the case number is reflected as 560/15).
- 36.
Case of Dentinger v. Secretary General, appeal No. 472/2011 (8 December 2011).
- 37.
More specifically, the Tribunal relied on a definition from the “Vocabulaire juridique”, published by the Association Henri Capitant, ed. Gérard Cornu).
- 38.
Paragraph 66 of the decision.
- 39.
Appeals Nos. 582/2017 and 583/2017 (14 May 2018), paragraph 72 of the decision.
- 40.
Although, granted, it relied on its own case-law to support its findings. See paragraphs 62–66 of the decision. Similar issues are examined in the other three cases brought by the same appellant, appeals Nos. 316/2003 (22 December 2005), 345/2005 (22 December 2008) and 405/2008 (19 December 2008).
- 41.
Marchenkov v. Secretary General, appeal No. 294/2002 (28 February 2003), paragraph 21.
- 42.
Inter alia, Vernau v. Secretary General, appeal No. 413/2008 (31 March 2009), paragraph 37; and Maria Grazia Loria Albanese v. Secretary General, appeal No. 255/1999 (27 March 2000), paragraph 22.
- 43.
For example, in Sorinas Balfego v. Secretary General, appeal No. 114/1985 (25 October 1985).
- 44.
Nyctelius v. Secretary General, appeal No. 321/2003 (4 February 2005).
- 45.
For example, Robert Diebold (II) v. Secretary General, appeal No. 340/2004 (17 June 2006).
- 46.
X v. Secretary General, appeal No. 239/1997 (27 August 1998), operative part.
- 47.
Case of Staff Committee v. Secretary General (XII), appeal No. 536/2013 (28 June 2013), paragraph 49.
- 48.
Paragraph 71 of the decision.
- 49.
Case of Devaux (II) v. Secretary General, appeal No. 587/2018 (25 September 2018), paragraph 111.
- 50.
Notably, equal treatment and equal pay for equal work.
- 51.
See, Sansotta (2013), cited above.
- 52.
Only after an application has been declared admissible, and with the assistance of the States in question.
- 53.
Rule A1 of the Annex to the Rules of Court, added on 7 July 2003.
- 54.
“The Tribunal may, of its own initiative or at the request of a party, decide to hear any witness or expert as well as any person whose evidence or statements seem likely to assist the hearing”, Rule 25 (1).
- 55.
Rule 23.
- 56.
Parienti v. Secretary General, appeal No. 285/2001 (16 May 2005) paragraph No. 7.
- 57.
Rougie-Eichler v. Secretary General, appeal No. 529/2012 (17 March 2015).
- 58.
Andrea v. Secretary General, appeal No. 539/2013 (30 January 2014), paragraph 50.
- 59.
Such as, for example, Pace Abu-Ghosh v. Secretary General, appeal No.408/2008 (24 June 2009), paragraph 50: “En prenant la décision […], le Secrétaire Général a méconnu la loi à laquelle il était lié et a tiré des conclusions manifestement erronées par rapport à l’avis de vacance de sorte à encourir la censure du Tribunal.”
- 60.
Ibid.
- 61.
See, for example, Tonelli v. Secretary General, appeals Nos. 259, 260/2000 (9 March 2001), paragraph 46, and Oristanio (I) v. Governer of the Council of Europe Development Bank, appeal 559/2014 (29 January 2016), where the appellant claimed that she has been the victim of a disciplinary measure in disguise, paragraph 48: “The difficulties that she allegedly encountered […] for which, moreover, she provides no proof either – does not exempt her from the burden of proof incumbent upon her before the Tribunal.”
- 62.
See, for example, Kling (IV), cited above. Also see ILOAT judgment Pollicino, No. 635 (1984), paragraph 7.
- 63.
See, for example, R. V. (II) v. Governor of the Council of Europe Development Bank, appeal No. 521/2011 (26 September 2012).
- 64.
See, Pollicino case, cited above. As far as possible to determine, this has not been accepted so far by the Tribunal. On several occasions it has been decided to the contrary, and supported by UN and ILOAT case law. See, for example Fuchs (II) v. Secretary General, appeal No. 130/1985 (10 November 1986), paragraphs 54–55: “The appellant submits that the [post] was deliberately transferred in order to make it possible to promote […] to the post of Principal Administrative Officer in the Health Division. He considers that this procedure amounted to a breach of a principle of equality of opportunity for candidates in a competition. […] Where such allegations are made in an appeal, it is for the appellant to present compelling evidence that the administrative decision relating to the selection of the person who was to occupy the post sought by him was based upon prejudice (UNAT, judgment No. 312, Roberts v. Secretary General of the United Nations).”
- 65.
D.M. v. Governor of the Council of Europe Development Bank, appeal No. 513/2011 (11 June 2006), paragraph 62. See also, Lupas v. Secretary General, Case No. 314/2003 (27 May 2004), paragraph 37.
- 66.
This standard seems to be widely applied in international administrative law. See, for example Kogelmann (Nos. 1, 2, 3 and 4), ILOAT judgment No. 1373, paragraph 16. Also, see Hasselback, World Bank Administrative Tribunal, Decision No. 364 (2007), paragraph 50 and Elobaid, United Nations Administrative Tribunal, judgment No. 2018-UNAT-822, paragraph 35.
- 67.
Seifert v. Governor of the Council of Europe Development Bank, appeal No. 566/2015 (31 March 2016), paragraph 61.
- 68.
Zikmund (I and II) v. Secretary General, appeal No. 459/2009 (30 October 2009).
- 69.
As provided for under Article 60, paragraph 2 of the Staff Regulations.
- 70.
While recognizing that both concepts mentioned are complex and merit further elaboration, the paper, due to space limitations, will proceed under the assumption that there is no need to provide it.
- 71.
Such were, for example, the circumstances in the case of Rougie-Eichler, quoted above.
References
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Leighton, R. (2014, September 15–16). Free advice and representation for staff members: The roles of the office of staff legal assistance in the United Nations internal justice system. In A. Talvik (Ed.), Best Practices in Resolving Employment Disputes in International Organisations Conference Proceedings, ILO Geneva (pp. 139–143).
Ryngaert, C. (2017). Jurisdictional immunity and infringement of fundamental labor rights. International Labor Rights Case Law, 3, 331.
Sansotta, S. (2013). The Administrative Tribunal of the Council of Europe. https://rm.coe.int/-the-administrative-tribunal-of-the-council-of-europe/16808b3d93
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Ucar Tagney, Z., Stojanoski, M. (2019). The Administrative Tribunal of the Council of Europe: Some Observations with Regard to Procedural and Substantive Guarantees. In: Pinto de Albuquerque, P., Wojtyczek, K. (eds) Judicial Power in a Globalized World. Springer, Cham. https://doi.org/10.1007/978-3-030-20744-1_37
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