Thursday, September 2, 2010

UN Tribunal Awards Compensation to Long-Suffering UNDP Whistleblower

by Shelley Walden on September 01, 2010 ( The Whistleblogger / 2010 )
Yesterday, United Nations Dispute Tribunal Judge Memooda Ebrahim-Carstens issued a judgment in the long pending case of Artjon Shkurtaj, the United Nations Development Programme (UNDP) whistleblower who made much publicized disclosures regarding UNDP wrongdoing at its North Korean office. The judge ordered Secretary-General Ban Ki-moon to award Shkurtaj fourteen months’ net base salary as compensation for the failure of the ad hocExternal Independent Investigative Review Panel (EIIRP) – appointed by UNDP to investigate the case – to allow Shkurtaj to comment on adverse findings contained in its publicly released report.

According to the decision:

Even if the EIIRP did not identify the applicant as the subject of its investigation, its report contained significant adverse findings about his credibility, trustworthiness and integrity. The Tribunal finds that not only was the applicant not given an opportunity to respond to these adverse findings, he was not even made aware of the EIIRP’s concerns regarding his credibility at any point prior to the issuance of the report. The Tribunal is persuaded by the applicant’s argument that the report of the EIIRP contained adverse findings against him and that, in the particular circumstances of this case, he should have been made aware of them prior to the issuance of the report and provided with the opportunity to comment on them and provide his explanations. Therefore, the Ethics Office’s finding that there was a violation of the applicant’s procedural right to be made aware of—and to have the opportunity to respond to—the adverse findings concerning his credibility and trustworthiness was reasonable and justified. This is particularly so considering the report was made public, following which there was no further process made available to the applicant to contest these findings. This failure resulted in a violation of the applicant’s due process rights, damaged his career prospects and professional reputation, and caused him emotional distress, for all of which he should be compensated. (para. 47)

The Judge also ordered the respondent to pay an additional $5,000 as compensation for its inordinate delay in considering the UN Ethics Office’s June 2008 decision in Shkurtaj’s case. According to Judge Ebrahim-Carstens, “to date, i.e. in over two years, UNDP has not made a decision on the Ethics Office’s recommendation to compensate the applicant as stated in its report dated 27 June 2008.”Again, according to the ruling:

The referral of the report to the Ethics Office for recommendations was part of UNDP’s effort to carry out a fair and objective fact-finding exercise and this referral was meant to be meaningful, particularly considering the history of this case. The undertaking by UNDP was to share EIIRP’s findings with the Director of the Ethics Office, who ‘could then provide an opinion and formulate recommendations, as may be appropriate, on the retaliation allegations in light of these findings’. This meant that, having submitted to the process, UNDP was required to give serious and timeous consideration to the Ethics Office’s comments and recommendations, make a decision on them and provide this decision, along with the reasons, to the applicant. There is no evidence before me that UNDP afforded such timeous and serious consideration to the Ethics Office’s recommendation. (para. 48)

For Shkurtaj, the past four years have been an ordeal of retaliation, harassment and defamation. Tuesday’s ruling represents a remarkable advance toward justice for UN whistleblowers. Because of this decision, management in the United Nations system are on notice that staff members’ rights can no longer be violated without consequences.

At the same time, however, GAP remains concerned about the way in which Shkurtaj’s retaliation claims were handled. The Judge dismissed his claim that the organization failed to enforce its ethics policy and protect him from retaliation.

The court’s decision begs the question: Why did the highest levels of UNDP management subject a staff member to such draconian measures, including a.) rescinding his appointment and terminating him; b.) directing the UN Department of Safety and Security to include his photo in an array of pictures used to bar threatening individuals from UN grounds and facilities; c.) launching an unprecedented ad hocinvestigation that defamed him; d.) ignoring all of the whistleblower protection procedures contained in Secretary-General bulletins 2005/21 and 2007/11, as well as UNDP’s own whistleblower protection policy issued in the fall of 2007; and e.) refusing to enforce the Ethics Office’s 2008 decision? These extreme actions have not been adequately explained. As Shkurtaj once told The Washington Post, “If I would not have spoken out, would any of this have ever happened?”

In arriving at her conclusion, the Judge stated that UNDP was

“required to act fairly towards the applicant, which meant that UNDP had to examine the concerns and allegations raised by the applicant, albeit not necessarily through the Ethics Office. The question, therefore, is whether the applicant’s allegation that he had been retaliated against was adequately and objectively reviewed… I see no reason warranting a conclusion that the report of the EIIRP and the subsequent review by the Ethics Office were anything but thorough and objective.”(para. 43, 45)

GAP, which has periodically advised Shkurtaj throughout his ordeal, strongly disagrees with the Judge’s analysis of the EIIRP review. The conduct of the EIIRP demonstrated a lack of expertise in whistleblower cases and of the impartiality needed to investigate retaliation disclosures properly. For example, the panel demonstrated its ignorance of the relevant standard of proof in a whistleblower case. UNDP failed to establish that its action rescinding Shkurtaj’s appointment as Operations Manager of its North Korea office, after he reported wrongdoing, was not retaliatory. Under the UNDP whistleblower protection policy, once Shkurtaj had been designated a whistleblower and made a prima facie case of retaliation, UNDP had to prove with “clear and convincing evidence” that it did not retaliate. But UNDP presented no substantive evidence at all, other than the statement of the officer responsible for the withdrawal of Shkurtaj’s appointment. In short, at this point in the proceedings, Shkurtaj did not have to prove that the withdrawal of the appointment was retaliatory. UNDP had to prove that it was not. Any objective review would reach this conclusion.

Similarly, the panel, which was selected by then UNDP Administrator Kemal Dervis and included a member of a UNDP advisory board, lacked the impartiality needed to investigate retaliation disclosures properly. In the words of GAP International Program Director Bea Edwards, “If you are the defendant you can't be the judge and jury.”

It should be noted that Mr. Shkurtaj’s disclosures and his cooperation with the U.S. Mission to the United Nations, NY Southern District Attorney’s office and the U.S. Senate Permanent Subcommittee on Investigations resulted in the U.S. government gaining important intelligence on the DPRK’s manipulation of UNDP. The Subcommittee’s investigative report concluded that

the DPRK government used its relationship with the United Nations to execute deceptive financial transactions by moving $2.72 million of its own funds from Pyongyang to DPRK diplomatic missions abroad through a bank account intended to be used solely for UNDP activities and by referencing UNDPin the wire transfer documents.” The Subcommittee also “obtained evidence that UNDP transferred approximately $50,000 of UN funds to an entity called Zang Lok Trading Co. that a US State Department official later identified as having ‘ties to a North Korean entity that has been designated [by the US government] as the main North Korean financial agent for sales of conventional arms, ballistic missiles and goods related to the assembly and manufacture of such weapons.’” (p. 1)

According to the U.S. Senate Permanent Subcommittee on Investigations,

“the facts presented in this Report might not have come to light absent the actions of a UNDP official, Artjon Shkurtaj, who repeatedly raised concerns about UNDP practices in North Korea. Rather than supporting Mr. Shkurtaj, UNDP declined to renew his employment contract. When he filed a complaint alleging retaliation, UNDP declined to submit voluntarily to an Ethics Office review, later referring the matter to an ad hoc review team. While the UN Secretary-General recently announced a new effort to strengthen whistleblower protections across the United Nations, that effort is in the early stages and has been the subject of some criticism. UN personnel should be able to blow the whistle on waste, fraud, or abuse without fear of retribution. Both Congress and the US State Department should continue to press for the implementation of strong whistleblower protections at the UNDP and throughout the United Nations.” (p. 5)

It remains to be seen whether or not the UNDT decision will be enforced or appealed. Meanwhile,UNDP’s whistleblower protections remain weak.

Shelley Walden is International Officer for the Government Accountability Project, the nation's leadingwhistleblower advocacy organization.

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