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28 September 2016
Ambassadors, Your Excellencies,
World Intellectual Property Organisation
United Nations Office of Internal Oversight Services Investigation Division
Investigative Report on Abuse of Authority and Procurement Irregularities
implicating a Staff Member at the World Intellectual Property Organisation
Investigation Division Case No. 0164/15
Report No. 36/16
Date: 15 March 2016
By now you will have had sight of the UN OIOS Report into the allegations of
misconduct by the WIPO Director-General Francis Gurry. Although that report is dated
15 March 2016, it was released to Member States, after substantial controversy, only
towards the end of the week beginning 19 September 2016. References in square brackets
in this letter are references to paragraph numbers in the report.
DELAY IN DISTRIBUTION OF THE REPORT
The delay in release of the report in itself is unsatisfactory: such a report should not have
been suppressed for some six months. It is respectfully submitted that the Member States
must take steps to ensure that such a concerted effort by the head of an international
organisation to suppress a report into allegations of misconduct against him never
Ankara • Fribourg • Geneva • Istanbul • London • Moscow
happens again.
CONCLUSIONS OF SERIOUS WRONGDOING, AND NOT JUST BY MR
GURRY
Be that as it may, I am now writing to make a number of observations for your benefit
about this report. In short, I am suggesting to you that the contents of the report mandate
the immediate removal of Francis Gurry from office, because its conclusions indicate that
he has committed multiple criminal offences and civil wrongs under Swiss law.
The report also indicates that the Geneva authorities and/or the Swiss Mission may be
guilty of participation in certain serious criminal offences and/or civil wrongs. It goes
without saying that heightened scrutiny is required to ensure that host state wrongdoings
of this kind must never take place again.
INAPPROPRIATELY EXCESSIVE REDACTION OF THE REPORT
Unfortunately the report has been redacted so heavily that it is very difficult to read. In
my submission, the degree of redaction is wholly excessive. Even the word “Geneva” has
been redacted in front of the word “Police”, when it is obvious that the Geneva Police
were involved. The word “Swiss” has been redacted in front of the word “authorities”.
This suggests that the process of redaction was undertaken in gross bad faith. Some
paragraphs have been redacted so heavily (see e.g. [39, 42, 58,69, 78, 99, 109, 137, 139,
140]) that they have become completely incomprehensible to the uninitiated. That cannot
have been a reasonable interpretation of the intention of the Coordination Committee
when it requested distribution of a redacted version of the report. To the extent that Mr
Gurry suffered or encouraged such a redaction, it is indicative of a disrespectful and/or
uncooperative attitude towards both the Member States and this investigative process as a
whole.
To overcome this obstacle, my office has prepared an unredacted version of the report
based upon the information available to it.
Given the inevitable public interest in allegations of serious wrongdoing about a senior
international public official, and out of respect for the privacy of those named in the
report, I am not currently sharing that unreacted version on a public basis. Nevertheless,
as a service to the Member States, if any Member State wishes that I provide them with
the unredacted version of the report that I have prepared, then I will be content to share it
upon an individual basis, trusting them in good faith to treat it with discretion.
SUMMARY OF RECOMMENDATIONS
My recommendation to you is that you should vote to remove Mr Gurry from office,
since his conduct as concluded in the OIOS report amounts to a catalogue of serious
criminal offences and civil wrongs.
You should also vote to lift his immunity, so that he may be subject to criminal
investigation and/or civil suit and held accountable for his actions. This would serve as an
appropriate precedent in upholding the accountability of international organisations and
members of their senior management.
I now proceed to set out the contents of the report, and to provide my comments upon the
civil and criminal liabilities that the report indicates arise.
THE ACCUSATIONS AGAINST MR GURRY
1. The report observes that the first accusation against Mr Gurry is that:
In late-2007, under the instruction of Mr. Gurry … personal items were taken from
WIPO staff members without their consent in order to extract Deoxyribonucleic Acid
(DNA) samples to be provided to the Geneva Police to undertake forensic analysis so
as to determine if the persons linked to the DNA samples were the source of
anonymous letters criticising Mr. Gurry during his 2008 election bid to the role of
Director-General. [3.i]
2. The second part of the report discusses the assertion that:
Mr. Gurry attempted to influence the outcome of an investigation by illegitimately
promoting and/or rehiring two investigators … and by attempting to intimidate
Thierry Kajaobelina, the then Director of WIPO IAOD. Reportedly, Mr. Gurry
succeeded in suppressing IAOD’s investigation into the reported taking of DNA
samples. [3.ii]
3. The third accusation against Mr Gurry is that:
Mr. Gurry entered into an agreement with Carlotta Graffigna, a staff member from
whom he had reportedly previously ordered the illegal collection of personal items
from her office within the context of a criminal complaint he had filed with the Swiss
authorities after having received an anonymous letter during his 2007/2008 campaign
bid to become Director-General. According to the agreement, in exchange for the
withdrawal of three complaints against Mr. Gurry for his refusal to open an
investigation into the illegal collection of personal items, Mr. Gurry withdrew Ms.
Graffigna’s transfer to the WIPO office in Singapore, a decision he had previously
reportedly made in retaliation … As part of the agreement, Ms. Graffigna also
reportedly received the amount of 100,000 Swisss Francs. [3.iii]
4. The fourth accusation is that:
Mr. Gurry illegitimately favoured the award of a contract to Argo Pacific following
procurement exercises held in 2013 and 2014”. [3.iv]
5. There is a fifth accusation, that Mr Gurry tried to intimidate a WIPO internal
misconduct investigator, Thierry Rajabolina, into dropping an investigation about him
by threatening to terminate his contract. [4.iii] That allegation involved the testimony
of one witness against another: it was essentially about a conversation between Mr
Rajabolina and Mr Gurry [133] in respect of which there was no collateral evidence.
The allegation was therefore dismissed as not proven.
SUMMARY OF FINDINGS BY OIOS
6. The conclusions of the report are, in summary, that:
A. While it could not be proven that Mr. Gurry actually took the DNA samples
himself, there are strong indications that he had a direct interest in their
outcome. [200.ii]
B. OIOS’s investigations in this regard were hampered by the fact that the
Swiss Mission to the United Nations in Geneva, and the Geneva
Prosecutor’s Office, refused to cooperate with the UN OIOS investigation.
Indeed they simply ignored OIOS’s correspondence. [53]
C. Mr Gurry was found to have improperly influenced the WIPO procurement
process in favour of Argo Pacific, a company run by his friend/colleague.
Therefore he is guilty of misprocurement. [5, 6, 201-203]
DNA THEFT
7. As to the DNA allegations, the OIOS report observes as follows:
A. Mr Gurry filed a criminal complaint with the Geneva Police in respect of
the anonymous letters, on 12 October 2007. [40]
B. The Police sent the letters for forensic analysis, and found fingerprints and
DNA upon those letters. [41]
C. A request was made to authorise the Geneva Police to collect DNA samples
from certain staff members, to establish whether they matched the samples
on the anonymous letters. [45]
D. The then head of WIPO Security, Jan van Hecke, presented a list of 23
suspects whose DNA ought to be tested. [42]
E. However in the event, the Geneva Police never themselves collected the
DNA samples from these individuals. [45] It is unclear precisely why not.
As a matter of Swiss law they could have proceeded only on the basis of a
warrant signed by the Geneva Senior Prosecutor in charge of the file, Yves
Bertossa. Due to the fact that the Geneva Prosecutor’s office refused to
cooperate with the investigation, [53] we do not know whether such a
warrant was ever signed. Presumably it was not.
F. Instead a WIPO Security Officer, Drew Donovan, illicitly collected
personal items of the various suspects, without telling them. Either he, or
Mr Gurry, then handed those items to Inspector Seydoux of the Geneva
Police for analysis. [53]
G. The Geneva Police, no doubt upon the Prosecutor’s instruction, then sent
the samples collected by Mr Donovan for forensic analysis by the
University Hospital of Geneva. [58]
8. The legal implications of this narrative of events, although not spelled out explicitly in
the OIOS Report, are multiple and serious. Firstly, Mr Donovan had no legal mandate
illicitly to collect personal items of WIPO Staff Members without their consent. What
he was doing amounted to the crimes of theft and/or criminal removal of property,
under the terms of Articles 139 and 141 of the Swiss Criminal Code. These crimes are
punishable by up to three to five years’ imprisonment.
9. Moreover the fact that the Geneva Police and Prosecutor received and sent for forensic
testing illegally acquired evidence that they must have known had been improperly
stolen (for it was not the Police who themselves collected that evidence pursuant to a
lawful mandate) implicates the Geneva authorities in the acts of theft and, under the
accessory provisions of Swiss law contained in inter alia Articles 24 et seq of the
Swiss Criminal Code, render them liable for the same crimes as Mr Donovan.
10.Presumably the reason things were done this way was to avoid the need to waive the
inviolability of UN premises set out in the various conventions and headquarters
agreements to which Switzerland is a party. The Geneva Police are not entitled to enter
UN premises. Therefore they appear to have subcontracted their mandate to the WIPO
Security Department.
11.But this course is obviously unlawful. The WIPO Security Department does not have
the legal authorities of the Geneva Police acting under a Prosecutor’s warrant. Nor
does it have equivalent authorities under any international or domestic legal
instrument. Hence its actions towards WIPO employees amount to theft, and the
acquiescence of the Geneva authorities amount to an acquiescence in the criminal acts
of theft.
12.The proper course would have been to seek the then Director-General’s permission for
the Police to enter WIPO premises to execute a Prosecutor’s valid warrant, rather than
to subcontract judicial and police duties to persons who have no statutory right to
execute them. This course was not followed. The result was a gross and compounded
set of illegalities on the part of both WIPO staff members and the Geneva authorities.
13.The then Director-General Mr Idris refused to permit the Police to enter WIPO
premises, [46] although he was asked to do so. [FN 31] Therefore this scheme, which
Mr Idris could have authorised lawfully but did not, must have been orchestrated by
someone beneath him. It would not have made sense for Mr Idris to do something by a
method breaking the law when he could have achieved the same thing by using his
lawful authorities.
14.Mr Gurry, then being WIPO’s General Counsel and ultimately replacing Mr Idris as
Director-General after he left office, is the only natural candidate to have had a motive
to pursue such a course,1 particularly as he was the initiator of the criminal complaint
that led to this course of events in the first place. Nobody else would have had the
influence in the organisation, or the incentive, to order WIPO security staff to commit
crimes to investigate allegations of defamation against Mr Gurry.
15.The list of suspects for the act of defamation was drawn up by its victim, Mr Gurry.
We know this because the Geneva Police told one of the suspects, Ms Carlotta
Grafignia, that Mr Gurry had prepared the list. [53] It appears that Mr Gurry drew up a
list of his enemies, rather than preparing this list on any objective or judicial basis or
delegating the task to a person who might be expected to exercise a judicial
temperament.
16.This is all very unsatisfactory, because quite apart from the breach of criminal laws it
entailed it suggests a gross failure of judgment, proportion and temperament on the
part of Mr Gurry.
17.The Swiss Mission to the United Nations in Geneva, and in particular the Swiss
diplomat Blaise Godet, cousin of the then General Prosecutor Daniel Zappelli,
participated in seeking waiver of the suspects’ immunity. [119]
18.In the circumstances, the fact that the Geneva authorities ignored OIOS’s enquiries
during the course of this investigation, and thereby frustrated their investigation, seems
hardly surprising. They had something to hide, namely their complicity in Mr Gurry’s
wrongdoing.
THE MISTREATMENT OF MS GRAFFIGNA
19.Ms Graffigna, one of the victims of theft of her personal effects and a member of the
1
Mr Gurry denies having done this [124], but in the absence of any other credible explanation
his denial is barely plausible.
WIPO Staff Council, complained through all official WIPO channels and to the
Geneva criminal authorities about what had happened to her. [70-75]
20.She was then mysteriously transferred to the WIPO Singapore Office. Although she
held a D2 position, the post to which she was transferred was a P5. This would appear
to be an act of clear retaliation. [69, 80-81]
21.Then, after a negotiation, the transfer of Ms Graffigna to Singapore was suddenly
cancelled. Instead she was appointed as Director of the WIPO Academy (essentially a
transfer sideways into a non-job) and paid CHF100,000 in exchange for dropping all
her complaints. [82-88]
22.Both the decision to transfer Ms Graffigna into exile in Singapore, and then the
decision to revoke that and instead to pay her off in exchange for dropping all her
complaints, were approved by Mr Gurry. [85, 88]
“POLITICAL DEALS”
23.During the course of OIOS’s investigation into the treatment of Ms Graffigna,
documentation came to light which suggested that Mr Gurry had a plan to “re-deploy”
or “separate” certain D-level staff with whom he apparently had grievances. [90] This
document might be read as suggesting that Mr Gurry made decisions about senior
management appointments based upon personal grievances or political convenience
rather than upon merit, as he is bound to do.
24.This is not just misfeasance in public office: an international civil servant is obliged to
act in good faith and the principles of merit and the best interests of the organisation.
He is not expected to act as a casual political bargainer.
25.This conduct also amounts to prima facie evidence of the crime of abuse of office
under Swiss law, as explained below.
MISPROCUREMENT: FAVOURITISM TOWARDS ARGO PACIFIC
26.WIPO signed a contract with a company called Argo Pacific on 10 February 2014, for
a sum of CHF100,000. The contract was to provide “consulting services in relation to
the Organization’s Information Assurance Strategy” .[134] The Information Assurance
Strategy is an IT security project to prevent the hacking of WIPO’s computer systems.
[135] The company winning the tender was owned or controlled by a personal friend of
Mr Gurry.
27.This is in itself is somewhat concerning. But it gets worse. When the original tender
documents were issued, Mr Gurry personally intervened. [142] This is also rather odd,
because one would not expect the Director-General of an international organisation to
involve himself in the minutiae of a day-to-day procurement exercise.
28.The terms of Mr Gurry’s personal intervention were even more odd. The described the
parties who had originally bid on the tender as “the most useless group that I have ever
heard of. They don’t know what they are doing.” [142]
29.It is not entirely clear what grounds Mr Gurry had for his intemperate remarks.
However he personally then stopped the tender process and instructed that the Terms of
Reference be rewritten. [143] Mr Gurry then personally chaired a committee to rewrite
the Terms of Reference [144] and issued a personal instruction that they be rewritten in
accordance with his requirements, [146] although it was also made clear that WIPO
staff should hide the fact that Mr Gurry had personally rewritten the Terms of
Reference.[147]
30.The new Terms of Reference were so bizarre and difficult to understand that the
regular WIPO procurement committee effectively absolved itself of all responsibility
for applying them. [148-150]
31.There were three bidders. Argo Pacific was by some way the most expensive. The
relevant procurement committee recommended that another bidder be selected. But Mr
Gurry insisted that Argo Pacific win the bid anyway. [152-55]
32.It was obvious that the procurement officers did not consider Argo Pacific to be the
best bidder, but they were instructed by Mr Gurry to submit a recommendation to him
to appoint them on the tender. [158-161]
33.Mysteriously, the matter was not cleared by the relevant WIPO legal officer. [174]
34.Argo Pacific was founded by Paul Twomey, an Australian national who has been Mr
Gurry’s personal and social contact and confidant since at least 1997. [181, 184-186,
197]
35.The changes to the Terms of Reference for the tender insisted upon by Mr Gurry were
totally artificial, and seemed designed only to appeal to Argo Pacific’s company
profile. [183]
36.The obvious conclusion, reached by the OIOS investigators, was that this was a case
of manifest and serious misprocurement inconsistent with the standards to be expected
of any international civil servant, [205] still less the director of an international
organisation to which surely the highest standards of integrity and probity ought to
apply.
37.Any other employee found guilty of interfering with a procurement process, stopping
it, rewriting its Terms of Reference arbitrarily to support a vendor, and then instructing
procurement officers to make decisions against their better judgment, all to favour a
personal contact, would be summarily dismissed.
38.The same conclusion must follow for Mr Gurry.
CRIMINAL LIABILITIES OF MR GURRY UNDER SWISS LAW
39.Mr Gurry’s actions, described above, all took place in Switzerland. As such, Swiss
criminal law applies to his conduct. Any immunity from prosecution he may have
pursuant to international treaty and/or a headquarters agreement with the Helvetic
Confederation does not change this fact. The effect of diplomatic immunity is not to
render the beneficiary of immunity not guilty of a crime they would otherwise be
guilty of. Instead the effect of immunity is to preclude the relevant criminal
investigation authorities from investigating the matter and/or detaining Mr Gurry in
connection with their investigations.
40.But immunity can be waived: and it should be waived where there is prima facie
evidence that an international public official has committed one or more serious crimes
that in no sense can be regarded as in the public interest. If immunity is waived, Mr
Gurry can be investigated and prosecuted, just as for any other person who commits
crimes in the Helvetic Confederation.
41.Article 312 of the Swiss Criminal Code (abuse of public office) criminalises the
conduct a public official who abuses his powers in order to secure an unlawful
advantage to himself or another or to cause prejudice to another. On the basis of the
conclusions in the report, Mr Gurry, as a public official, has committed this crime in
several ways:
A. He manipulated a procurement process to secure an advantage to another
party, namely Argo Pacific.
B. He procured the theft of the personal effects of WIPO staff members, which
caused them prejudice.
C. He arranged for the transfer of Ms Graffigna to Singapore to a post
unsuitable for her, as retaliation for her complaints about him, thereby
causing her prejudice.
D. He arranged for the reassignment or dismissal of staff on the basis of
personal grudges rather than assessments of organisational need and/or
objective merit-based assessments.
42.Hence there is a prima facie case that Mr Gurry is criminally liable upon four separate
counts for the offence of abuse of public office.
43.Despite the fact that OIOS concluded that there is no evidence that Mr Gurry benefited
personally from the act of misprocurement that he orchestrated [204], this does not
absolve him from criminal liability. That is because, under Swiss criminal law, an
intention improperly to benefit another from a corrupt act is as sufficient a condition of
criminal culpability as an intention to benefit oneself from a corrupt act. Nor, from the
language of Article 312 Swiss Criminal Code, does the fact that the founder of Argo
Pacific had a close relationship with Mr Gurry need to be proved. The mere fact that
Mr Gurry abused his authority to favour any third party (whether connected to him or
not) is sufficient.
44.The maximum sentence for abuse of public office under Article 312 of the Swiss Civil
Code is five years’ imprisonment.
45.Article 314 of the Swiss Criminal Code (misconduct in public office) criminalises any
act of a public official that damages the public interest that he has a duty to safeguard,
with a view to obtaining an unlawful advantage for himself or another. The proper
preservation of public funds, such as WIPO funds, falls under this definition. Therefore
by manipulating a procurement process that as Director-General he has a duty to
safeguard, to the benefit of Argo Pacific, Mr Gurry may have committed a crime under
Article 314. Again the maximum sentence is five years’ imprisonment.
46.Article 158(1) of the Swiss Criminal Code (criminal mismanagement) prescribes that
anyone entrusted with management of the property of another (including an
organisation) and permits that organisation to sustain financial losses is guilty of an
offence attracting a sentence of up to three years’ imprisonment. The sentence is
increased to up to five years if the offence is committed with a view to securing an
unlawful financial gain for another. Abuse of a legal authority with the same object is
likewise criminalised by Article 158(2). Wrongful interference in a public procurement
process with a view to assisting another prima facie amounts to an offence under these
provisions of the Swiss Criminal Code.
47.Article 322septies(2) of the Swiss Criminal Code criminalises any act of an
international public official who fails to carry out his duty in order secure an advantage
for a third party. The act of wrongfully intervening in misprocurement would prima
facie amount to an offence under this section, and again the maximum sentence of
imprisonment is five years.
CIVIL LIABILITIES OF MR GURRY UNDER SWISS LAW
48.In the event that Mr Gurry is criminally liable under the foregoing provisions of Swiss
criminal law, then any person who has suffered harm as a result of his actions may
have a right of civil suit against him. This right of civil action is established by Articles
112 et seq Swiss Code of Civil Procedure.
49.Candidates for plaintiffs in such civil suits, with a right to damages claimed against Mr
Gurry, might include other failed participants in the fixed tender; Ms Graffignia; and
other persons whose personal effects were unlawfully stolen with Mr Gurry’s
connivance.
CRIMINAL LIABILITIES OF THE SWISS AUTHORITIES UNDER
SWISS LAW
50.To the extent that the Geneva Prosecutor and/or Police and/or individuals in the Swiss
Mission participated or acquiesced, or aided, or abetted, an arrangement by which
WIPO Security Officers would engage in abuse of office or acts of theft, they would
also be criminally and civilly liable pursuant to the accessory and equivalent provisions
contained in Articles 24 et seq of the Swiss Criminal Code.
51.In particular, it appears that the relevant police officer and Prosecutor handling the
management of personal objects are guilty as accessories to crimes committed under
Articles 139 and 141 of the Swiss Criminal Code (theft and/or criminal removal of
property). Moreover the jurisprudence and scholarship confirms that law enforcement
authorities who participate in the collection of evidence in support of a criminal
investigation outside the confines of the due and proper procedures prescribed law,
including using illicit private methods and/or not acting pursuant to a Prosecutor’s
warrant, may be guilty of the crime of abuse of public office (Article 312 of the Swiss
Criminal Code, as set out above).
RECOMMENDATIONS
52.Given that the OIOS Report reaches conclusions that Mr Gurry has committed serious
criminal offences and civil wrongs, I respectfully submit that the Member States must:
A. Immediately dismiss Mr Gurry from office for gross misconduct.
B. Elect to waive his immunity from prosecution and civil suit.
C. Mandate the General Counsel of the World Intellectual Property
Organization, and/or such other independent legal representatives as they
consider appropriate, to file a criminal complaint with the appropriate
Swiss authorities.
I remain available for any further clarifications or information as you may consider
appropriate.
With kind regards,
Yours faithfully,
!
Matthew Parish
Managing Partner
Gentium Law Group Sàrl