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Family of Deceased Engineer Fights ESA Diplomatic Immunity

ESA,Diplomatic Immunity,European Union
Tereza Pultarova
Paul Abood
October 24, 202310:00 AM UTC (UTC +0)

Four days before Christmas, 2011, 38-year-old ESA engineer Philippe Kieffer died by suicide at his home in Leiden, the Netherlands.


Twelve years later, his family is still fighting for justice, and looking for answers about the alleged bullying and harassment that led to this tragedy.

Kieffer’s parents remember the enthusiasm and excitement with which their son first took up his role at ESA’s technological heart, the European Space Research and Technology Centre (ESTEC), in the Netherlands, in 2002. He loved his job, and couldn’t imagine working anywhere else. When, seven years later, a new manager arrived and took a dislike to Kieffer, the engineer kept holding on, hoping for things to improve.

According to publicly available information, two of Kieffer’s colleagues raised concerns about Kieffer’s treatment by his superiors with the agency’s HR department in the months leading up to his death, but nothing ever changed. Entries in Kieffer’s diary, which had been found after his demise, describe his struggle with public humiliation and professional ostracization, the reasons for which Kieffer never understood.

But his parent's quest to hold the alleged perpetrators accountable has constantly run up against the wall of the agency’s special legal status — its diplomatic immunity, and the inviolability of its documents.

On November 7, Kieffer’s family will have one last shot to persuade the Paris Appeals Court to overthrow ESA’s diplomatic immunity and force the agency to release documents related to the circumstances leading up to his death. The decision could set a precedent, as it would allow, for the first time in the agency’s nearly 50-year-long history, for allegations against it to be investigated in public. 

A World Unto Itself

ESA, an intergovernmental organization currently comprising 22 member states, is not alone among intergovernmental organizations fending off allegations of workplace bullying and fostering an unsafe corporate environment. Similar claims were earlier leaked from the European Patent Office. In 2019, the management of the United Nations Mine Action Service came under public criticism for creating a culture of fear and intimidation.

Apart from these allegations, the organizations have one thing in common — their special legal status, which sets them above any national jurisdiction and turns them into little micro-worlds with their own rules and internal justice systems. This arrangement protects these organizations from external political interference, but at the same time creates a precarious situation for its employees.

“The purpose of international organization immunities is to ensure that international organizations are able to carry out their functions in all the countries where they work,” Carla Ferstman, a professor of law at the University of Essex, told Supercluster via email.

“If an international organization was subject to the domestic courts of the countries where it works, this could, arguably, impede the organization from being able to act independently, and it would also be logistically problematic for an international organization to set up rules about how it operates internally, to comply with the external rules of each country where it operates.”

What Happens at ESA, Stays at ESA

ESA’s special legal status is enshrined in its founding Convention, a 130-page document that sets up ESA’s basic legal framework. Drafted in 1975, the year ESA came into being from the merger of the European Space Research Organization and the European Launcher Development Organization, the Convention features a whole section on the “privileges and immunities” afforded to the agency’s staff members.

All staff members, according to the Convention, are immune from jurisdiction “in respect of acts, including words written and spoken, done by them in exercise of their function.” This immunity remains in place even “after [the staff members] have left the service of the Agency.” These workers also “enjoy inviolability for all their official papers and documents,” the Convention states. Equally “inviolable” are ESA’s premises located in the Netherlands, France, Germany, Spain, the U.K. and Belgium. 

Due to this special legal status, whatever happens at ESA remains locked-up.

For the Kieffer family, this means that a report on the internal investigation into the circumstances surrounding Phillipe Kieffer’s death has been inaccessible. So has his personal HR file, which documents his repeated complaints about the treatment he received from his managers, and internal email exchanges that could shed light on his situation.

Most government-funded institutions in the democratic world are subject to Freedom of Information Acts that allow members of the media and the public to request access to such documents, and even to take the institutions in question to court if they fail to behave transparently. ESA and many other intergovernmental organizations, however, remain out of journalists’ reach.

This special legal status sets ESA apart from its main partner in the international space arena — the American space agency NASA, which is subject to American law including the 1966 Freedom of Information Act.

Ferstman, who authored a book called International Organizations and the Fight for Accountability: The Remedies and Reparations Gap, is aware of the shortcomings in the intergovernmental organizations setup. In theory, she said, organizations such as ESA have “internal administrative procedures in place in order to address staff claims,” but these processes are frequently set up “to benefit the organizations.”

“The internal claims process is used to justify the immunity; it is de minimis,” said Ferstman. “The more that is written on these issues the better.” 

Hiding Behind Immunity

In ESA’s case, staff members that feel wronged by the agency and fail to find a resolution through the agency’s HR department can turn to its Administrative Tribunal. Consisting of three judges appointed by the agency’s council, the tribunal is the only tool of supposedly independent justice in the microcosmos of ESA.

In 2014, the tribunal, at that time called the Appeals Board, heard the request of Philippe Kieffer’s parents to lift ESA’s immunity to allow an independent investigation into the circumstances surrounding their son’s suicide. The tribunal rejected this request, stating that Philippe Kieffer was not subject to harassment by his superiors (despite testimonies of his colleagues and a record of discussions he had with the agency’s HR department).

The tribunal, however, ruled that Kieffer’s death was work-related, and awarded the family a life insurance pay-out worth five years of salary.

The family has since spent most of this money fighting for justice through the public courts. So far, all their attempts to allow judges in France to investigate the case have been met with ESA’s reluctance to cooperate, according to the French Association Supporting Victims and Organizations Dealing with Suicide and Professional depression (ASD-Pro), which has been supporting the Kieffer family.

ASD-Pro pointed out that the Administrative Tribunal’s decisions are final, allowing for no appeals, a very different system from legal procedures that are commonplace in the outside world.

“We asked three successive French foreign ministers to have the immunity lifted,” Denise Kieffer told Supercluster. “We received three refusals motivated by the judgment of the Administrative Tribunal which, however, has nothing to do with a public court in France.”

The Kieffer family, their lawyers, and ASD-Pro question the qualification of the Administrative Tribunal to make judgments on the matter of workplace harassment and point out that the judges sitting on the Tribunal don’t apply actual law but only the agency’s Convention and its internal regulations. They are accusing the agency of hiding behind its immunity and abusing it to avoid accountability.

“It should be remembered that the immunity of individuals and the inviolability of documents are intended solely to protect ESA from any interference by states and individuals in its aerospace activities and not to protect itself from the potential effects of its management on its employees,” ASD-Pro told Supercluster in an email. 

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Denise Kieffer commented: “It is said in the statutes of the agency that [ESA’s Director General] has a duty to lift immunity in all cases where it can be lifted without harming the interests of the agency. In the case of Philippe, immunity is diverted from its initial objective of industrial protection to escape justice with complete impunity.”

ESA disagrees with those charges. In an email exchange with Supercluster, ESA’s spokesperson stressed that in the case of the suicide of Philippe Kieffer, "the agency complied with its duty to cooperate with the national authorities in the course of the legal proceedings that eventually led to the dismissal of the case."

ASD-Pro, however, objects to ESA’s assertion, saying that said cooperation "was limited to exchanges of letters by which the agency refused to communicate to the investigating judge all the internal documents that could enable him to really investigate the parents’ complaint."

Aspiring for the Stars

Philippe Kieffer’s case, while the most tragic, is not the only allegation of workplace harassment against ESA. In a previous investigation (soon to be published by another news publication), the author of this article gathered more than 15 testimonies of workers who have either personally experienced or witnessed workplace bullying and harassment at ESA.

Just like Philippe Kieffer, those workers failed to find a resolution for those conflicts within the agency.

These stories cast a shadow over ESA’s carefully cultivated public image of a diversity-promoting agent of inspiration, a cool facilitator enabling Europeans’ participation in humankind’s grandest endeavor — the exploration of outer space.

ESA told Supercluster in an email that although the agency’s Council (a gathering of political representatives of its member states) has the power to “waive ESA’s immunity from jurisdiction,” it has never taken that step.

“The Agency has always cooperated with national authorities to facilitate the proper administration of justice,” the agency stated, adding that it has “procedures in place that enable workers to report harassment without disclosing their identity, which aims to encourage the submission of reports without possible retaliation.”

Tereza Pultarova
Paul Abood
October 24, 202310:00 AM UTC (UTC +0)