On 19th December 2013, Alex Haines of Bretton Woods Law attended, in his capacity as an independent international observer, the 7th hearing in the long-running criminal trial of the legal representatives of Adbullah Öcalan, the leader of the Kurdistan Workers’ Party (PKK). A delegation of leading barristers and solicitors from the UK attended the trial, which is taking place in the Silivri prison complex outside Istanbul, the largest courthouse in the world. Another dozen international trial monitors from across Europe also attended as part of French and German delegations.
The Turkish authorities have established a special penal court to try 46 lawyers who were arrested in police raids throughout Turkey as part of the KCK anti-terror operations in November 2011. There have been, to date, seven hearings in the proceedings. Alex Haines’ mandate as a trial observer was to, inter alia, make the participants – particularly the judges – aware that they were under scrutiny, and to impartially record his views on the conduct and standard of the trial from a human rights perspective to ensure it complied with rule of law principles.
Around fifty professionals working in the area of International Administrative Law congregated for the inaugural BWL Centre of Excellence Conference in the heart of London between the 17-18 October to hear and discuss a wide variety of presentations on the current legal issues facing international civil servants.
Delegates attended from around the globe to be updated and debate issues such as delay, human rights, immunity from suit, equality of arms, conflicts of interests and many other current big issues facing international civil servants.
Present at the conference were representatives and members of Staff Associations and Unions, managers and lawyers working for International Organisations, judicial representatives, academics and external legal practitioners specialized in the field of International Administrative Law.
Many of those attending joined the various committees that will now commence working to improve the quality and accessibility of International Administrative Law together with the sharing of best practices that currently exist within the many International Organisations.
The International Administrative Law Centre of Excellence is a registered community interest company established with a mandate to improve the state of International Administrative Law.
Following the success of this first assembly a second conference will be held in the autumn of 2014 in London.
Barristers from Bretton Woods Law last week won yet another international employment law case within the European Bank for Reconstruction and Development’s (“EBRD” or “Bank’s”) internal justice system. In fact, this is the third straight win in a row of late at the EBRD for BWL, but, regrettably, we are prevented from telling you about two of the three cases because the Bank intentionally applies a cloak of secrecy to the ministrations and jurisprudence emanating from its Grievance Committee. One of the three cases was, however, a judgement of the EBRD’s Administrative Tribunal (“EBRDAT”) in respect of the jurisdiction of the Grievance Committee to hear a particular matter. This judgement was thankfully published on the Tribunal’s webpage and it makes for interesting reading for a variety of reasons, not least of which is the implicit criticism of the Bank’s behaviour [read].
The EBRD, which is headquartered in London, is an international organisation that enjoys limited immunity from legal suit within the United Kingdom. But the EBRD’s immunity is sufficient to cover employment disputes and, as a result, disgruntled EBRD employees are generally unable to seek recourse or protection from English employment tribunals. EBRD employees have in general no other option than to rely upon the substitute internal system of justice created by and imposed upon them by the Bank for the resolution of their employment related grievances.
The Grievance Committee is the EBRD’s court of first instance and therefore the fact-finding body within its internal justice system, with an appeal lying thereafter to the EBRDAT. The Chair of the Grievance Committee is an external lawyer, who is assisted in his or her deliberations by two staff members sitting in the capacity of Assessors. The EBRD’s internal law only permits the Grievance Committee to make a recommendation on the outcome of an employment dispute to its President, Sir Suma Chakrabarti, and it then falls to Sir Suma to decide whether to accept or reject the Committee’s findings. Sir Suma is the decision maker at first instance and this is so regardless of whether the employee is seeking to contest the lawfulness of his decisions. In contrast, the EBRDAT is permitted by the Bank to pass judgement on disputes and its judgements are both binding and published on line. However, the recommendations of the Grievance Committee are not published nor are Sir Suma’s decisions thereon, which is truly astonishing given the fact that the Bank, as an international organisation, is a product of and is subject to customary international law, including inter alia article 6 of the European Convention on Human Rights (“ECHR”)
Article 6 of the ECHR stipulates that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” in the determination of their “civil rights and obligations.” What is more, article 6 provides that not only should any hearing be in held in public, but that “judgement shall be pronounced publically.” The EBRD falls down on both these points, for its Grievance Procedures (2011), which is the internal law that establishes and guides the Grievance Committee, exclude from the hearing or trial of the facts at first instance everyone other than the parties, including union representatives, and treats the proceedings of the Committee as confidential, including any report of the Grievance Committee to Sir Suma and any subsequent decision taken by him. What makes matters worse is that the EBRD floats the threat of disciplinary action against any employee who openly talks about or otherwise discloses details of his or her case, both within the Bank and outside of it.
What this means in practice is that the EBRD is able to hide from the public at large and, more importantly, its serving employees the outcomes of cases that it has lost at first instance and any criticism levied against it by the members of the Committee, including the external and independent judge. This lack of transparency self-evidently defeats the aims of justice, as it conceals judicial work that would assist immeasurably other disgruntled employees and their lawyers, stifles the making of informed complaints and, significantly, prevents the Bank’s Board of Directors from shining the spotlight of accountability on those who need to be illuminated.
Blanket confidentiality at first instance is an all too common practice within the internal justice systems of international organisations and BWL lawyers take the view that such confidentiality has no place in an internal system that acts as a substitute for national courts and tribunals. It is abused by international organisations, it is abhorrent and it should be stopped. If international organisations fear exposure of their behaviour, then the simple and, in truth, only answer is to take steps to improve. However, until organisations such as the EBRD comply with their obligations under prevalent and applicable human right laws, we are unable to discuss in any detail how our clients, with our assistance, have prevailed and often in circumstances that have attracted judicial criticism of their employers.