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Once the panel knows where the evidence may be, how the panel actually collects the evidence depends on what type of evidence the panel is considering:
Cooperation As all staff members have a duty to cooperate with the panel (Staff Rule 1.2(c)), which includes providing complete and accurate information in a timely manner when requested, they should always agree to be interviewed and provide documents as required (unless they are documents which are protected). Staff members cannot invoke a “right against self-incrimination” in order not to cooperate. Non-cooperation may itself be unsatisfactory conduct and in the case of an alleged offender may result in the panel drawing an adverse inference. If a staff member is not cooperating, the panel should inform the responsible official to consider the matter and continue with their investigation. Note that cooperation of non-United Nations personnel is however voluntary. When a staff member that the panel wishes to interview—either the alleged offender, the affected individual or another witness—is on certified sick leave, the panel should check with the Division of Healthcare Management and Occupational Safety And Health (DHMOSH) in the Department of Operational Support whether the nature of the staff member’s condition prevents them from being interviewed. If not, and the staff member still refuses to cooperate, the panel should inform the responsible official. Relevant provisions:
Retaliation It is absolutely prohibited to retaliate against any staff member, intern or UN volunteer who cooperates with an audit or investigation. Retaliation means any direct or indirect detrimental action that adversely affects the employment or working conditions of an individual, where such action has been recommended, threatened or taken for the purpose of punishing, intimidating or injuring an individual because that individual engaged in a protected activity. A protected activity is defined as reporting unsatisfactory conduct or cooperating in good faith with a duly authorized investigation or audit. If a staff member is not cooperating, it may be appropriate to consider whether there is a fear of retaliation. Or someone may be expressing concerns about retaliation. In both cases, this should be drawn to the attention of the responsible official and the concerned staff member should be directed to the Ethics Office. The fear of retaliation should be properly documented and mentioned in the report as well. If, as a panel member, you are intimidated, harassed or threatened by persons involved or interested in the investigation, you should first ask the person to refrain from such behaviour and document any incidents. Second, inform the responsible official and require request assistance. Third, if there is an immediate threat, stalking or other security issues to the panel or to witnesses, immediately inform Security. (Retaliation is fully covered in ST/SGB/2017/2/Rev.1) Relevant provisions:
Interviewing Regarding confidentiality Confidentiality means that information is shared on a strict need to know basis. All those involved in the investigation (panel members, support persons, observers and including administrative support for the panel) are bound by the obligation of confidentiality. Support persons, observers and administrative support for the panel must sign a declaration of confidentiality (see Template 04.02 - Declaration of confidentiality). The panel will, however, use what interviewees tell them for the purposes of the investigation. Information gathered may be used for administrative, disciplinary or judicial proceedings. The panel may also put to other witnesses, including the alleged offender, what they have told the panel, in order for them to respond as part of a fair process. The panel must be transparent to the interviewees in this regard; they must be informed that the information they provide is confidential only within the parameters set out above. In this regard, the panel should remind everyone involved of the protections afforded to those who cooperate with investigations. Relevant provisions:
Before the start of interviews Prior to any interview, the panel must send the interviewee an invitation to attend the interview with a pre-interview information sheet (see Template 02.04 - Subject pre-information sheet and Template 02.07 - Witness pre-information sheet). For all interviewees, this will:
Additionally:
The panel must ensure these information sheets are signed by the person being interviewed before the interview starts. Relevant provisions:
Interviewing the alleged offender At the outset of the investigation, prior to interviewing the alleged offender, the panel must also advise the alleged offender in writing:
(see Template 01.02 - Initial Notice to Subject) Remember that in most cases, the Conduct and Discipline Focal point will already have notified the alleged offender that an investigation panel has been set up, and provided some details regarding the nature of the allegations which may include the name of the affected individual. Relevant provisions:
Where to conduct interviews It is best to try and conduct interviews away from the alleged offender’s/affected individual’s office environment. Ideally, a private and comfortable interview room well away (a different floor or building) from the parties concerned should be sourced. This, at least in part, affords the parties involved some form of privacy and level of comfort when undertaking interviews. In some cases, e.g. when an interviewee has left the Organization, is not a critical witness, or is on extended leave away from the duty station, the interview can be conducted remotely (e.g. on the phone or video conference). Alleged offender interviews should be conducted in person. Who is present All panel members should be present during the interview. Panel members should (between them) make each person’s responsibilities clear. For example, one person should take the lead during the interview while the other asks follow up questions and makes notes of the conversation. The panel must also decide on the order of interviews as part of their interview plan. The affected individual should normally be interviewed first, then the other witnesses and then the alleged offender. It is generally accepted best practice for an investigator to try and gather and analyse all relevant information and evidence prior to speaking to any subject. By doing so the investigator has the opportunity to form a thorough understanding of the matters under investigation and use this to complete a logical and thorough alleged offender interview. It is also important to gather sufficient information about the case before interviewing the alleged offender to protect the evidence from possible influence by them and, most importantly, for reasons of fairness: the alleged offender must have the opportunity to provide his or her version of the facts, which includes being given an opportunity to comment on the information obtained so far. There may be occasions when circumstances dictate that the alleged offender has to be spoken to before the last witness. When this occurs the panel has to follow suit. This also means that the panel may have to interview the alleged offender again if more relevant information is obtained after their interview that needs to be put to them. Re-interviewing Ideally, a witness’ full account will be explored and obtained during an interview. Occasionally, conflicting or new information on a critical point may necessitate re-interviewing witnesses and the affected individual. Where the alleged offender is concerned, a re-interview may be required to ensure fairness: the alleged offender must have the opportunity to provide their version of the facts, which means being given an opportunity to comment on the information obtained by the panel. Relevant provisions:
At the start of each interview
Relevant provisions:
During the interview The panel should keep a detailed record of questions and answers made during an interview. It is strongly recommended that the panel audio-record all interviews. This will obviate subsequent disputes regarding the accuracy of the recorded information. Where there is no audio recording, the written record does not need to be verbatim but should be accurate in all material respects and include all the relevant information gathered (inculpatory or exculpatory). See Template 02.03 - Record of Q and A for Subject and Template 02.06 - Record of Q and A for witness. Relevant provisions:
Observers and Support persons Alleged offenders are entitled to have an observer present and affected individuals are entitled to a support person during an interview. The panel has discretion as to whether other interviewees are allowed a support person present. Observers and support persons are not there to advocate or represent the interviewee. They may not participate during the interview (except as appropriate for the purposes of support). They may take notes, a copy of which must be given to the investigators at the end of the interview. The interview will not normally be rescheduled owing to the unavailability of the support person or observer. The support person and observer must not have a conflict of interest and should sign a confidentiality undertaking (see Template 04.02 - Declaration of confidentiality) and be reminded of their role ahead of the interview or at the start of it at the latest (see Template 02.02 - Pre-information sheet for Observers). Relevant provisions:
Legal advisers Any party involved in an investigation of possible prohibited conduct may consult OSLA for advice but there is no right to be represented and/or accompanied by legal counsel (whether from OSLA or other legal representatives) during an interview or otherwise in the investigation.
A quick recap of interview techniques
Language and interpreters It is essential that those being interviewed understand what they are being asked. Interviews should generally be conducted in English or French and there is an expectation that UN staff members will be able to fluently speak one of these working languages. If in doubt, check with Human Resources who can confirm the languages that the staff member has indicated they speak fluently or proficiently. If a non-UN witness does not possess a good command of English or French, they may be interviewed in their own language, whenever feasible, using independent interpreters. The panel should coordinate with the responsible official when interpreters are required. Relevant provisions:
Documents The panel has access to all official United Nations records and documents, including those in electronic format. The panel may wish to consider requesting witnesses directly to provide it with copies of all relevant documentary and electronic (e.g. emails) evidence concerning the matter. Protected documents - caution. Any documents received relating to medical/personal issues or that may otherwise be considered protected from disclosure (that is: communications between staff members and their legal representative, medical services, the staff counsellor, the Ombudsman’s office and the Ethics Office) should be separately stored, as they are not appropriate for use in the investigation, unless an explicit waiver by the appropriate party has been provided, ensuring the staff member is fully aware that the information may be disclosed at a later stage in furtherance of administrative or disciplinary action. Relevant provisions:
Accessing relevant electronic data (including telephone records) The panel may sometimes want access to emails, hard drives, telephones records or other information available electronically:
Usually, the best way of obtaining those is by asking for them. Bearing in mind staff are under a duty to cooperate with investigations, this should not cause difficulties and they should just provide them to the panel. Important note - it is not appropriate to seek electronic records as a “fishing expedition”. The panel must document a legitimate need for the electronic data and have first considered whether the information is available from other sources and whether it will be volunteered. If the panel has concerns that the information may be tampered with if the panel asks for it or there are other reasons for not seeking it first from the relevant witness, and so want to obtain it directly from the Organization, the panel will have to comply with ST/SGB/2004/15 - section 8. (“Use of information and communications technology, resources and data”). Further advice may be sought as to how to comply with the provisions of ST/SGB/2004/15 from OHR. OIOS can also help the panel in terms of how to conduct the forensic analysis of the actual hard drive data. Requests for documents/records should be made in writing under authority delegated to the panel and limited to the scope of the investigation to the Under-Secretary-General for Management Strategy, Policy and Compliance or the Chief of Administration for Offices away from Headquarters. Such requests shall be made in writing and provide a brief description of the data required, the name of the staff member or other individual to be investigated and the name of the authorized official from the requesting office to whom the records are to be delivered. (see section 8.4 of ST/SGB/2004/15) The SGB governing such requests sets out a number of due process rights, including the right for the staff member to be informed immediately prior to the access of their ICT resources (section 8.5 of ST/SGB/2004/15). Relevant provisions:
Hard drives - practical issue
Regarding retrieval of ICT data see Templates: 03.01: ICT Confidentiality Undertaking, 03.02: Note to the file ICT retrieval authorisation request, 03.03: ICT Request Form, 03.04: Memo Notice of ICT Retrieval, 03.05: Memo Request for ICT Services. Looking after the evidence
At the outset of the investigation, the panel should discuss the panel member’s responsibilities, including who will be responsible for the case files. The panel has the responsibility for keeping the case files safe and confidential. Useful Templates
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