¹ú²úAV

The Tribunal found that it was established by clear and convincing evidence that the Applicant had had sexual intercourse with two persons under the age of eighteen and that the sanction of dismissal, together with a fine, were proportionate to the established misconduct. This conclusion was independent from the outcome of the judicial proceedings before the national courts of Kosovo with respect to the violation(s) of the CCK. Standard of review of disciplinary matters: In reviewing disciplinary matters, the Tribunal must examine(1) whether the facts on which the disciplinary measure was based have been established; (2) whether the established facts legally amount to misconduct under the Rules and Regulations of the United Nations, and(3) whether the disciplinary measure applied is proportionate to the offence. To that effect, the Tribunal has to freely form its conviction in assessing the truth of the disputed facts, on the basis of the available evidence. In cases of termination, the Tribunal has to take into account the standard of proof established by the jurisprudence of the United Nations Appeals Tribunal (UNAT) in the case of Molari 2011-UNAT-164. Whether the facts were established: A conviction by a first instance court, together with the Applicant’s free admission at trial of having had sexual intercourse with two persons while they were under the age of eighteen—which is the relevant age for the purpose of the United Nations Rules and Regulations—constitutes clear and convincing evidence for that charge of misconduct. In the absence of any evidence to the contrary, the argument that this admission had been made on the basis of falsified birth certificates lacks any foundation. Since misconduct based on underlying criminal acts does not depend upon the staff member being convicted of a crime in a national court, the conclusion by the Tribunal is without prejudice to the potential outcome of the Applicant’s appeal before the higher national courts. Proportionality of the disciplinary measure: Based on the goal of ST/SGB/2003/13 to further especially protect women and children, sexual intercourse with children alone justifies a severe disciplinary measure, regardless of the outcome of the judicial proceedings before the national courts with respect to the violation of the national criminal law.