Judgment No. 3485
Decision
1. The impugned decision contained in the Prosecutor’s letter dated 19 June 2012 is set aside.
2. The ICC shall pay the complainant 30,000 euros in moral damages.
3. The ICC shall pay the complainant 1,000 euros in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to dismiss his harassment complaint for lack of evidence.
Judgment keywords
Keywords
complaint allowed; decision quashed; lack of evidence; due process; harassment
Consideration 10
Extract:
"There are cases in which the evidence is such that fairness and transparency require the testing of it particularly by way of questioning of witnesses. The Tribunal views this as such a case given the nature of the allegations of harassment which the complainant proffered. The complainant and the four persons whom he named as his harassers in the internal proceedings made serious allegations and counter-allegations against each other. The Tribunal has already observed that the complainant named persons who, according to him, witnessed some alleged harassing incidents. These are circumstances in which the appropriate exercise of the discretion, which Staff Rule 110.4(d) confers, required an objective determination of the facts in their overall context. This could have been done at least by the questioning of witnesses, as well as by oral or written testimony by the persons whom the complainant named as witnesses to the alleged oral harassing incidents. The failure by the Board to do this, coupled with its decision to consider only the alleged harassing incidents that occurred within the six-month period before the internal complaint was filed, violated due process. These were serious breaches which require the impugned decision that adopted the recommendation to be set aside."
Keywords
due process
Consideration 12
Extract:
"Lack of intention and lack of bad faith are not defences to a charge of harassment."
Keywords
harassment
Consideration 6
Extract:
"[R]epeated occurrences of the same or similar conduct may reveal, over time, the harassment of the complainant."
Keywords
harassment
Consideration 6
Extract:
"The Tribunal’s jurisprudence is that harassing conduct over a long period is evidence which can be relied upon to prove the existence of more recent harassing conduct, and also that harassment can be the cumulative effect of conduct which, in isolation, might not be viewed as harassment (see Judgments 2100, under 13, 2553, under 6, 3318, under 7, 3233, under 6, and 3347, under 8)."
Reference(s)
ILOAT Judgment(s): 2100, 2553, 3233, 3318, 3347
Keywords
harassment
Consideration 14
Extract:
"Normally the Tribunal would have returned this matter to the ICC, directing that the harassment complaint be properly heard. However, considering the time that has elapsed since the period of the alleged harassment and the nature of the evidence that is available, the Tribunal can determine the issue of harassment."
Keywords
harassment
Consideration 16
Extract:
"It is not controverted that some of [the complainant's]complaints went unanswered. This shows that there was a degree of indifference regarding his express concerns. This was not only another aspect of harassment but also a breach of the ICC’s duty of care towards the complainant which, in addition to the breach of due process, entitles him to moral damages [...]."
Keywords
moral injury; harassment; duty of care
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