European Ombudsman
Beslut i ärende 772/2007/OV - Vägran att anställa en sökande på grundval av uppgifter i hans intyg om god vandel
Beslut
Ärende 772/2007/OV - Undersökning inledd den 02/04/2007 - Beslut den 12/02/2008
Klaganden svarade på en inbjudan att lämna in intresseanmälan för tjänstgöring som säkerhetspersonal vid rådet, och blev uttagen i urvalsförfarandet. Två veckor före planerat tillträdesdatum för tjänstgöringen skickade rådet en skrivelse till klaganden där man förklarade för honom att det inte längre kunde bli aktuellt att anställa honom eftersom han inte uppfyllde kraven på god vandel. Beslutet hade fattats på grundval av klagandens intyg om god vandel, av vilket framgick att han hade dömts för en förseelse i samband med en trafikolycka. Enligt klaganden var dock de omständigheter för vilka han hade blivit dömd inte alls så graverande som de beskrevs i intyget. Klaganden påpekade också att omdömet "god vandel" nämndes i intyget. I sitt klagomål till ombudsmannen yrkade klaganden på att rådet skulle i) genomföra en säkerhetsundersökning avseende hans person, som skulle visa att han uppfyllde kraven på god vandel, och ii) överväga hans anställning på nytt.
I sitt yttrande fastslog rådet att det inte ingick i dess roll att ifrågasätta innehållet i intyg som utfärdats av nationella myndigheter, och att det därför inte hade för avsikt att genomföra den undersökning som klaganden hade begärt. Ombudsmannen konstaterade emellertid att intyget faktiskt innehöll kommentaren "god" i fråga om klagandens vandel. Med hänvisning till koherensprincipen samt till rådets ståndpunkt att det alltid förlitar sig på innehållet i de intyg som tillhandahålls av nationella myndigheter, föreslog ombudsmannen en fredlig lösning som innebar att rådet uppmanades att på nytt överväga innehållet i klagandens intyg.
I sitt svar vidhöll rådet sin ståndpunkt att det inte kunde anställa klaganden. Rådet hänvisade i detalj till de olika fällande domar som nämndes i klagandens intyg om god vandel och förklarade att det hade gjort en åtskillnad mellan å ena sidan det objektiva utdraget från kriminalregistret och å andra sidan det subjektiva utlåtande som gjorts av kommunen i fråga om klagandens vandel.
Ombudsmannen ansåg att rådets åsikt, att en person med en liknande brottsbakgrund som klaganden inte var lämplig för tjänsten, inte tycktes orimlig. Mot bakgrund av de ytterligare förklaringar som tillhandahållits av rådet i svaret på förslaget till fredlig lösning, ansåg ombudsmannen att inget administrativt missförhållande kunde konstateras och avslutade ärendet.
Strasbourg, 12 February 2008 Dear Mr X,
On 14 March 2007, you made a complaint to the European Ombudsman concerning the termination of your recruitment procedure by the Council of the European Union on the grounds of the alleged non-fulfilment of the condition of good behaviour.
On 2 April 2007, I forwarded the complaint to the Secretary-General of the Council. The Council sent its opinion on 25 June 2007. I forwarded it to you with an invitation to make observations, which you sent on 7 August 2007. On 28 August 2007, my Office sent you an e-mail asking you to send a copy of your certificate of good behaviour. As no reply was received from you, my Office addressed a similar request to the General Secretariat of the Council, which on 5 September 2007 faxed a copy of your certificate of good behaviour.
On 21 September 2007, I addressed a proposal for a friendly solution to the Council. You were informed accordingly in a letter of the same day.
The Council sent its reply regarding the proposal for a friendly solution on 9 November 2007.
I forwarded it to you with an invitation to submit observations, which you sent on 25 November 2007.
I am writing now to let you know the results of the inquiries that have been made.
THE COMPLAINT
According to the complainant, the relevant facts of the case were, in summary, as follows:
The complainant successfully participated in a call for expression of interest for security (temporary) agents at the Council of the European Union (EPSO/TA/SECUR/06). The Council sent him a letter informing him that, on 1 March 2007, he could start working at the Council.
However, two weeks before the above-mentioned starting date and after he had sent all the necessary documents, the complainant received a letter from the Council informing him that he could no longer be recruited because he did not fulfil one of the recruitment criteria, namely, the requirement of good behaviour.
According to the complainant, his certificate of good behaviour (" bewijs van goed gedrag en zeden ") mentioned that he had been involved in a traffic accident. The complainant had indicated that, because of that accident, he had received a police penalty, namely, a fine. The complainant, who is a police inspector, stated that there had been an additional inquiry by the police disciplinary authority from which it appeared that the facts for which he had been convicted were not as serious as described in the certificate and that no serious disciplinary measures had been taken against him. The complainant also mentioned that references to the fine would be automatically removed from his criminal record after some time. The complainant stated that his certificate of good behaviour had the overall comment "good".
Therefore, the complainant did not understand why a traffic offence was taken into account during the recruitment procedure. He added that he could hardly imagine that everyone who received a traffic fine would be disqualified from being employed by an EU institution.
On 20 February 2007, the complainant wrote to the Council's General Secretariat pointing out that his certificate of good behaviour had the comment "good" as required. The
complainant indicated in his letter that an additional inquiry had been carried out, further to which no serious disciplinary measures had been taken against him, and that he was still working at the "intervention" service of the police force. In his letter, the complainant therefore asked (i) that a security inquiry concerning his person be carried out, which would demonstrate that he fulfils the condition relating to good behaviour, and (ii) that his
recruitment be taken into consideration again. Up to the date of submitting the present complaint, the complainant had not received an answer to this letter.
In his complaint to the European Ombudsman, the complainant referred to his letter of 20 February 2007 to the Council. The complainant claimed:
- that a security inquiry concerning his person, which would demonstrate that he fulfils the condition of good behaviour, should be carried out; and
- that his recruitment should be taken into consideration again.
THE INQUIRY The Council's opinion
In its opinion, the Council made, in summary, the following comments:
The Council referred to the complainant's letter of 20 February 2007 and stated that it initially informed him orally that it did not intend to pursue his claims, as it considered that the recruitment procedure for temporary agents had been correctly carried out. However, on 11 June 2007, after having concluded that the complainant's letter had to be considered as a complaint within the meaning of Article 90(2) of the Staff Regulations and given that the deadline for reply had not expired yet, the Secretariat General of the Council sent a reasoned decision to the complainant. On the basis of this reasoned decision, the Council concluded that there had been no maladministration.
In its reply of 11 June 2007, the Secretariat General of the Council first recalled the facts of the case: It stated that, by letter of 12 January 2007, it drew the complainant's attention to Articles 10 and 12 of the Conditions of Employment of Other Servants ("CEOS") and requested that the complainant provide either an extract from the criminal record, a certificate of good behaviour intended for public authorities, or a police certificate. The complainant sent his certificate of good behaviour on 16 January 2007. However, the
certificate was not clear, as it showed that, on 12 September 2006, the complainant had been convicted of certain acts falling within the scope of Articles 418 and 420 of the Belgian Criminal Code and Article 33(2) of the Royal Decree of 16 March 1968 (fleeing after causing an accident resulting in bodily harm). Therefore, on 2 February 2007, the Secretariat General of the Council informed the complainant that it could not recruit him, as he had not
produced the appropriate character references as to his suitability for the performance of the duties foreseen in Article 12 of the CEOS.
As regards the legal basis for its decision, the Secretariat General clarified that the
established procedure to verify whether the condition of good behaviour and integrity set out in Article 12(2)(c) of the CEOS (1) is fulfilled is that the Administration requires from the candidate, depending on the Member State, a certificate of good behaviour intended for
public authorities, an extract from the criminal record or a police certificate. These
certificates established by the competent national authorities serve as objective indications that the person concerned lives his/her life within the limits set by the provisions of the criminal law.
The Secretariat General stated that, in the complainant's case, it appeared from the
certificate he produced that he had committed a criminal act. The Administration therefore came to the conclusion that the complainant did not produce the appropriate character references showing that he met the criteria of good behaviour and integrity foreseen in the CEOS.
The Secretariat General further stated that it is not the role of the institution to cast doubt on the content of certificates issued by national authorities and to consider whether the legal qualification given by these authorities to the facts committed was more severe than the facts warranted. The Secretariat General has neither the expertise nor the resources to investigate independently whether the (judicial and administrative) authorities have correctly convicted the complainant. Moreover, such an independent investigation would go well beyond the competences of the Secretariat General.
The Secretariat General concluded that it would not carry out the security inquiry requested by the complainant, and that the complainant could not be recruited as he did not fulfil the conditions of Article 12(2)(c) of the CEOS.
The Ombudsman's approach
By letter of 18 July 2007, the Ombudsman forwarded the Council's opinion to the
complainant for his observations. In this letter, the Ombudsman drew the complainant's attention to the fact that the Council had considered his letter of 20 February 2007 as a complaint on the basis of Article 90(2) of the Staff Regulations and that, in its reply of 11 June 2007, it had informed the complainant that, according to Article 91 of the Staff Regulations, he could make an appeal to the Civil Service Tribunal. The complainant was therefore informed that, in case he chose to make such an appeal, the Ombudsman would have to terminate his inquiry on the basis of Article 2(7) of his Statute. The Ombudsman went on to ask the complainant to inform him whether he intended to turn to the Civil Service Tribunal or wished that the Ombudsman continue his inquiry into the complaint, in which case the complainant could submit observations on the Council's opinion.
The complainant's observations
In his observations, the complainant indicated that he was not going to lodge an appeal with the Civil Service Tribunal. He stated that he did not agree with the Council's decision.
According to him, it was not possible to form an objective opinion merely on the basis of his certificate of good behaviour. The complainant argued that the fact that he was still working in the police force as an inspector for "interventions" was sufficient proof of his good behaviour. The complainant further stated that, if he were a resident of another Member State, he would not encounter the problem he now faced. The complainant also underlined the difference between a traffic offence and a crime, and stated that he had been convicted further to a friendly solution before the Tribunal in Belgium. According to the complainant, the relevant fine did not constitute a criminal punishment and references to this conviction would be deleted from his criminal record after two years.
Further inquiries
As the complainant had not attached a copy of his certificate of good behaviour to his complaint, and in order to be able to evaluate the facts of the case, the Ombudsman's Office, by e-mail of 28 August 2007, requested that the complainant send him a copy of the said certificate. On 5 September 2007, and in the absence of a reply from the complainant, a similar request was addressed to the Council. By fax of 5 September 2007, the Council sent a copy of the complainant's certificate to the Ombudsman's Office.
THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION The Ombudsman's proposal for a friendly solution
After careful consideration of the Council's opinion and the complainant's observations, the Ombudsman was not satisfied that the Council had responded adequately to the
complainant's claims.
This view was based on the following considerations:
- With regard to the conditions of engagement of temporary staff, the Ombudsman noted that Article 12(2)(c) of the CEOS provides that " a member of the temporary staff may be engaged only on the condition that: (...) he produces the appropriate character references as to his suitability for the performance of his duties ". The Ombudsman further noted that the
Secretariat General of the Council explained that the established procedure for verifying whether this condition is fulfilled is to ask the candidate, depending on the Member State, to provide either (i) a certificate of good behaviour intended for public authorities, (ii) an extract from the criminal record or (iii) a police certificate.
- The Ombudsman noted that the Secretariat General of the Council has explained in its opinion that, in order to verify whether the condition of good behaviour of a candidate for a post in the Council is met, its practice is to rely on the information contained in the certificate delivered by the national authorities. The Secretariat General also explained that the Council could not carry out an independent investigation, as requested by the complainant, as this would be outside its competences. The Ombudsman considered this to be a reasonable approach. Certificates of good behaviour are documents which are established by the national authorities of the Member State whose citizenship the person concerned holds. The delivery of such certificates falls within the exclusive competence of the Member States. In the framework of the recruitment of EU citizens, the EU institutions are therefore entitled to rely on the information contained in those national certificates and do not have to carry out inquiries on their own.
- The complainant's claim that the Council should carry out a security inquiry on his person, which would demonstrate that he fulfils the condition relating to good behaviour could therefore not succeed. However, it was clear that what the complainant wished to achieve through this claim is that the Council recognise that he fulfilled this condition. The
Ombudsman therefore considered that it was possible and appropriate to re-interpret the first claim as requesting the Council to reconsider the certificate of good behaviour delivered by the Belgian authorities in order to ascertain whether he fulfils the relevant condition.
- The Ombudsman noted that the complainant provided a certificate of good behaviour issued by his municipality on 8 November 2006. This certificate mentioned that, on 12 September 2006, the Police Tribunal in Belgium convicted the complainant of certain acts falling within the scope of Articles 418 and 420 of the Belgian Criminal Code and Article 33(2) of the Royal Decree of 16 March 1968 (fleeing after causing an accident resulting in bodily
harm). The certificate however concluded with the following comment: "Declaration concerning behaviour: good " (in Dutch: " Verklaring betreffende het gedrag: goed ").
- It thus appeared that the competent national authority, namely, the municipality of the complainant's place of residence, took the view that, notwithstanding the conviction of 12 September 2006, the complainant's behaviour was to be considered to be "good".
- Principles of good administrative behaviour require that the institutions should be consistent in their own administrative behaviour (2) . In the present case, the Secretariat General of the Council stated that, in order to verify whether the condition of good behaviour of a candidate for a post in the Council is met, its practice is to rely on the information contained in the certificate delivered by the national authorities. In the complainant's case, however, the Council did not appear to have acted in line with its practice, as it did not accept the national authority's conclusion with regard to the complainant's behaviour. The
Ombudsman's provisional conclusion was therefore that the Council had not acted consistently and that this could constitute an instance of maladministration.
The possibility of a friendly solution
Article 3(5) of the Ombudsman's Statute directs him to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant.
On 21 September 2007, the Ombudsman therefore made the following proposal for a friendly solution to the Council:
The Secretariat General of the Council could reconsider the information contained in the complainant's certificate of good behaviour and, on the basis of this, reconsider the complainant's recruitment.
The Council's reply to the Ombudsman's proposal The Council's reply was, in summary as follows:
In accordance with the Ombudsman's proposal for a friendly solution, the Administration of the Council's Secretariat General re-examined the complainant's certificate of good
behaviour, issued by the municipality of the complainant's place of residence, and studied the complainant's observations in this regard. The Secretariat General noted that the
complainant submitted a certificate of good behaviour of the "Model l"-type , which included an extract from his criminal record. It appeared from this certificate that the complainant did not have a clean criminal record. Notably, the extract from his criminal record indicated that, on 12 September 2006, while driving under the influence of alcohol (blood-alcohol level largely above the permitted level), the complainant committed the following acts:
- unintentionally injuring people, as described in Articles 418 and 420 of the Belgian Criminal Code and not being able to control the speed of his vehicle and thus, not being able to stop in front of a foreseeable obstacle, for which acts the complainant received a fine and his driving licence was withdrawn for 30 days;
- fleeing after causing an accident with injured victims, falling under Article 33(2) of the "
Arrêté Royal portant coordination des lois relatives à la police de circulation routière " of 16 March 1968, for which the complainant was also fined and his driving licence was withdrawn
for 3 months.
The Secretariat General also understood that the references to the convictions would be removed from the complainant's certificate of good behaviour after some time.
The Secretariat General noted the fact that there had been an additional inquiry conducted by the disciplinary authority of the police where the complainant works as a policeman and that, allegedly, the investigation was not followed by any " serious disciplinary measures ".
The Secretariat General noted that, according to the complainant, the criminal acts for which he had been convicted were not as serious as described in the criminal record, and that the complainant considered the incident, which was described by the " Tribunal de
Police/Politierechtbank " as fleeing the scene after causing an accident where there were injured victims (" délit de fuite "), as a traffic offence.
The Secretariat General also noted that, despite having committed the acts detailed in his criminal record, the complainant's behaviour in general was considered as " good " by the municipality of his place of residence.
When reconsidering the complainant's file and examining the above elements, the
Secretariat General made a distinction between the first part of the certificate, i.e., the part where the municipality of the complainant's place of residence declared that the certificate and the extract from the criminal record were given to the complainant for the purpose of applying for a job and the observation that the complainant's behaviour was good, and the second part , which is the extract from his criminal record.
While the criminal record is a list of facts, that is, a record of data related to decisions taken in the field of criminal law, the municipality's observation concerning the behaviour is an appreciation, which does not need to be substantiated. Indeed, for "Model 1"-type
certificates (certificates for the purpose of applying for a post other than those related to the education, guidance, assistance of minors and youngsters) no clearance/police investigation has to be conducted with regard to the good behaviour of the person in question, and the observation concerning the person's general behaviour is made by the municipality on a voluntary basis. Additionally, the Secretariat General pointed out that, as of 9 February 2007, certificates of good behaviour (" bewijs van goed gedrag en zeden", "certificat de bonne vie et moeurs ") are no longer issued in Belgium and have been replaced by the use of an extract from the criminal record (" casier judiciaire "). One of the reasons for this change was the subjective nature of the observations made by the municipalities, without necessarily conducting an investigation in case of "Model 1"-type certificates. The fact that a body other than the one establishing and keeping the central crime register (" casier judidiaire central ") considers that a person's behaviour is good does not mean that his criminal record is clean.
Therefore, in its evaluation of the elements and of the complainant's character references, the Secretariat General considered that the criminal record outweighed the municipality's appraisal.
Therefore, after having reconsidered the complainant's certificate of good behaviour, the
Secretariat General still held the view that the criminal act (" délit ") of fleeing the scene after causing an accident where there were injured victims, a fact established by the competent national authorities and not contested by the complainant, was not compatible with the performance of the duties of a security officer (the post for which the complainant had been considered). As pointed out by the Secretariat General in its opinion, all officials and agents of the European Communities must be recruited/employed with a view to ensuring for the institutions the services of persons of the highest ability, efficiency and integrity. Clearly, causing an accident under the influence of alcohol (blood-alcohol level greatly above the permitted level), and driving away from the scene without checking the consequences, without taking responsibility for one's actions and without offering help to the eventual victims does not meet those standards and is not wh at could be expected from a security officer, acting with the highest standard of integrity.
The Secretariat General therefore decided that the complainant could not be employed, as he did not fulfil one of the conditions of employment, notably the condition of providing the appropriate character references as to his suitability for the performance of duties.
As regards the Ombudsman's view that the " Council does not appear to have acted in line with its practice, as it did not accept the national authority's conclusion with regard to the
complainant's behaviour " and that such inconsistency could constitute an instance of maladministration (emphasis added), the Council stated that the Secretariat General had asked for a certificate of good conduct intended for public authorities, or an extract from the criminal record or a police certificate in order to verify whether the condition of good
behaviour and integrity set out in Article 12(2)(c) of the CEOS was fulfilled. In its reply to the complainant, the Secretariat General did not state that its practice was to accept without any evaluation the conclusions of the municipalities issuing the certificate and the extract from the judicial record. The Secretariat General simply stated that it did not conduct any investigation of candidates applying for a post in the institution in order to examine how serious the acts possibly appearing in their criminal record were . As already pointed out in the opinion on the complaint, the Secretariat General does not question the validity of the judicial record and, therefore, does not conduct any investigation to double-check the accuracy and/or seriousness of acts listed in the national criminal records.
The Secretariat General concluded that its actions were entirely consistent with its
established practice concerning the verification of appropriate character references, and that it had not been in breach of principles of good administration.
The complainant's observations
The complainant made, in summary, the following observations:
The complainant stated that the Council, without knowledge of the file, apparently formed its own opinion about the accident by mentioning, for instance, that the complainant drove away from the scene. The complainant pointed out that he was convicted because the conclusions were not established on the spot. The complainant underlined that he himself telephoned the police authorities and that the other party involved in the accident had initially declared not to have been injured. The complainant therefore considered that it was inappropriate for the Council to refer to " driving away from the scene without checking the
consequences, without taking responsibility for one's actions and without offering help to the eventual victims ".
If the Council were to check the legal meaning of the term " fleeing after causing an accident ", it would find out that every person who does not remain on the spot after whatever kind of accident (also without injuries), will be guilty of fleeing after causing an accident. It was on that basis that the complainant had been convicted. If the complainant had wanted to escape his responsibilities, it was to be asked why he then himself telephoned the police services.
The complainant further mentioned that he did not bring an appeal against the decision, because, after consultation of his lawyer, he realised that he should have known better and should have waited on the spot. The complainant stated that it was only because of his function as a police inspector that he had to undergo this severe conviction. The complainant felt that he is convicted now a second time. The complainant concluded that, if he did not satisfy the condition relating to good behaviour, he would certainly have been dismissed and would not be working anymore as a police inspector.
THE DECISION 1 The complainant's claims for a security inquiry to be carried out and for his recruitment to be considered again
1.1 The complainant successfully participated in a call for expression of interest for security (temporary) agents at the Council of the European Union (EPSO/TA/SECUR/06). The Council sent him a letter informing him that, on 1 March 2007, he could start working at the Council.
However, two weeks before the above-mentioned starting date and after the complainant had sent all the necessary documents, he received a letter from the Council informing him that he could no longer be recruited because he did not fulfil one of the recruitment criteria, namely, the requirement of good behaviour. According to the complainant, his certificate of good behaviour (" bewijs van goed gedrag en zeden ") mentioned that he had been involved in a traffic accident. On 20 February 2007, the complainant wrote to the Council's Secretariat General pointing out that his certificate of good behaviour had the comment "good" as required. The complainant indicated in his letter that an additional inquiry had been carried out, further to which no serious disciplinary measures had been taken against him, and that he was still working at the "intervention" service in the police force. In this letter to the Secretariat General, the complainant therefore asked (i) that a security inquiry concerning his person be carried out, which would demonstrate that he fulfils the condition relating to good behaviour, and (ii) that his recruitment be taken into consideration again. In his complaint to the Ombudsman, the complainant reiterated these two claims.
1.2 In its opinion, the Council referred to the Secretariat General’s reasoned decision of 11 June 2007. In this reply, the Secretariat General of the Council stated that it appeared from the certificate of good behaviour which the complainant produced that he had committed a criminal act. The Secretariat General therefore came to the conclusion that the complainant had not provided proof of good behaviour. It further stated that it is not the task of the institution to cast doubt on the content of certificates issued by national authorities and to consider whether the legal qualification given by these authorities to the facts committed was more severe than the facts warranted. The Secretariat General had neither the expertise nor the resources to investigate independently whether the (judicial and administrative)
authorities had correctly convicted the complainant. Moreover, such an independent investigation would go well beyond the competences of the Secretariat General. The Secretariat General concluded that it would not carry out the security inquiry requested by the complainant, and that the latter could not be recruited as he did not fulfil the conditions of Article 12(2)(c) of the Conditions of Employment of Other Servants of the Communities ("CEOS").
1.3 In his observations, the complainant stated that he did not agree with the Secretariat General's decision. According to the complainant, it was not possible to form an objective opinion merely on the basis of his certificate of good behaviour. The complainant argued that the fact that he was still working in the police force as an inspector for "interventions"
was sufficient proof of his good behaviour. He further stated that, if he were a resident of another Member State, he would not encounter the problem he now faced. The complainant also underlined the difference between a traffic offence and a crime, and stated that he had been convicted further to a friendly solution before the Tribunal in Belgium. According to the complainant, the relevant fine did not constitute a criminal punishment and references to this conviction would be deleted from his criminal record after two years.
1.4 On 21 September 2007, the Ombudsman addressed a proposal for a friendly solution to the Council, suggesting that its Secretariat General could (i) reconsider the information contained in the complainant's certificate of good behaviour and, on the basis of this, (ii) reconsider the complainant's recruitment.
1.5 In its reply of 30 October 2007, the Council stated that, i n accordance with the
Ombudsman's proposal for a friendly solution, its Secretariat General had re-examined the complainant's certificate of good behaviour and studied the complainant's observations in this regard. The Council noted that the complainant submitted a certificate of good
behaviour of the "Model l"-type , which included an extract from his criminal record. It appeared from this certificate that the complainant did not have a clean criminal record.
Notably, the extract from his criminal record indicated that, on 12 September 2006, while driving under the influence of alcohol (blood-alcohol level largely above the permitted level), the complainant committed the following acts:
- unintentionally injuring people, as described in Articles 418 and 420 of the Belgian Criminal Code and not being able to control the speed of his vehicle and thus, not being able to stop in front of a foreseeable obstacle, for which acts the complainant received a fine and his driver's licence was withdrawn for 30 days;
- fleeing after causing an accident with injured victims, falling under Article 33(2) of the "
Arrêté Royal portant coordination des lois relatives à la police de circulation routière " of 16 March 1968, for which the complainant was also fined and his driver's licence was withdrawn for 3 months.
When reconsidering the complainant's file and examining the above elements, the
Secretariat General made a distinction between the first part of the certificate, i.e., the part where the municipality of the complainant's place of residence declared that the certificate
and the extract from the criminal record were given to the complainant for the purpose of applying for a job and the observation that the complainant's behaviour was good, and the second part , which is the extract from his criminal record. The Secretariat General stated that the fact that a body other than the one establishing and keeping the central crime register ("
casier judiciaire central ") considers that a person's behaviour is good does not mean that his criminal record is clean. Thus, in its evaluation of the elements and of the complainant's character references, the Secretariat General considered that the complainant's criminal record outweighed the municipality's appraisal that his behaviour was good. The Secretariat General therefore decided that the complainant could not be employed as he did not fulfil one of the conditions of employment, notably the condition of providing the appropriate character references as to his suitability for the performance of duties. The Secretariat General concluded that its actions were entirely consistent with its established practice concerning the verification of appropriate character references, and that it had not been in breach of principles of good administration.
1.6 In his observations, the complainant stated that the Council, without knowledge of the file, apparently formed its own opinion about the accident by mentioning, for instance, that he had driven away from the scene. The complainant pointed out that he was convicted because the conclusions were not established on the spot. The complainant underlined that he himself had telephoned the police authorities and that the other party involved in the accident had initially declared not to have been injured. The complainant therefore
considered that it was inappropriate for the Council to refer to " driving away from the scene without checking the consequences, without taking responsibility for one's actions and without offering help to the eventual victims ". If the Council were to check the legal meaning of the term " fleeing after causing an accident ", it would find out that every person who does not remain on the spot of whatever kind of accident (also without injuries), will be guilty of fleeing after causing an accident. The complainant stated that it was only because of his function as a police inspector that he had to undergo this severe conviction. The complainant felt that he was now convicted a second time. The complainant also pointed out that, if he did not satisfy the condition of good behaviour, he would certainly have been dismissed and would not be working anymore as a police inspector.
1.7 The Ombudsman notes that the Council has (i) reconsidered in detail the complainant's certificate of good behaviour and, on the basis of that, (ii) reconsidered the complainant's recruitment. The result of the reconsideration of the complainant's certificate of good behaviour was that the Council concluded that the complainant could still not be recruited.
As the complainant made it clear that he remained dissatisfied with the Council's reply, the Ombudsman concludes that no friendly solution could be achieved in the present case.
1.8 As regards the position adopted by the Council further to the Ombudsman's proposal for a friendly solution, the Ombudsman notes that, in its certificate, the municipality had
reached a positive conclusion ("good") with regard to the complainant's behaviour, despite the offence for which the complainant had been convicted. The Ombudsman notes that, in its opinion, the Council explained that it had to respect the conclusions reached by the national authorities. The Council more particularly argued that it was not its role to cast doubt on the content of certificates issued by national authorities. On that basis, the
Ombudsman was therefore led to wonder why the Council had nevertheless disregarded the positive assessment made by the municipality concerning the complainant's behaviour. He therefore proposed a friendly solution, according to which the Council would reconsider the issues concerned. In its reply to this proposal, the Council has now provided explanations that clarify the reasons why it felt unable to recruit the complainant. The Ombudsman notes in particular that the Council has pointed out that it made a distinction between the first part of the certificate, i.e., the part where the municipality of the complainant's place of residence made the "subjective" declaration that the complainant's behaviour was good, and the
"objective" second part , which is the extract from his criminal record. The Ombudsman considers that the Council's view that a person with a criminal record like the complainant's (even taking into account the further details provided by the latter) is not eligible does not appear to be unreasonable in view of the nature of the post concerned. On the basis of the above considerations, the Ombudsman concludes that there was no instance of
maladministration by the Council.
1.9 The Ombudsman would however like to point out that it would have been most useful if the Council had provided these explanations already in its opinion or, better still, in its letter of 2 February 2007 to the complainant informing him that he could not be recruited.
2 Conclusion
On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Council. The Ombudsman therefore closes the case.
The Secretary-General of the Council will also be informed of this decision.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) " A member of the temporary staff may be engaged only on the condition that: (...)
(c) he produces the appropriate character references as to his suitability for the performance of his duties ".
(2) See Article 10(1) of the European Code of Good Administrative Behaviour, which is available on the Ombudsman's website (
http://www.ombudsman.europa.eu/code/en/default.htm ).
