Week 13

• Areas regulated in administrative proceedings (UN):

  • Mentioned in Staff Regulations and Rules
  • Developed in AIs (Secretary-General bulletin’s) and manual provisions
  • Complemented/reinforced by the general principles of the civil service
• General principles of the civil service include due process rights:

  • Duty to give reasons
  • Right to be heard by an independent and impartial body (audi alteram partem) – internal review
  • Right to an effective legal remedy (and human rights more generally)
• Internal administrative proceedings of IOs involve a wide diversity of procedures and subject-matters, distinguishing between procedural and substantive aspects
• Advisory bodies in administrative proceedings can be fact-finding, expert-bodies, and issue recommendations, with requirements like proper composition, absence of conflict of interest, and the potential to serve as an appeals mechanism
• Duty to State Reasons has a twofold purpose: transparency and enabling administrative/judicial review, with implications like providing reasons on time, being sufficiently specific, and considering third parties’ interests
• Right to be heard in internal review of administrative decisions (audi alteram partem) involves an independent and impartial organ different from the one issuing the decision, ensuring independence and impartiality
• Right to be heard prior to adverse decisions includes scenarios like performance appraisals, probation periods, harassment, and disciplinary proceedings
• Disciplinary proceedings involve preliminary investigations, informing the staff member after the investigation report is produced, granting access to the report, and not being criminal cases but having similar guarantees
• Right to appeal after an initial decision has been made includes the right to file a rejoinder, interview witnesses, and access documents, with the final decision being challenged before an IAT and possibly involving special obligations like communication/consultation, motivation, and expeditiousness
• Appeal before an IAT encompasses a great number and diversity of IATs, with no specific structure, and is based on procedural/substantive grounds, potentially having procedural prerequisites like MEU-60 days in the UN
• Art. 2(1) UNAT Statute outlines grounds for appeal, including exceeding jurisdiction, failing to exercise vested jurisdiction, errors in law or procedure, and errors in fact leading to a manifestly unreasonable decision
• Substantive grounds of review include bad faith, discrimination, arbitrariness, and unreasonableness, while procedural grounds cover non-compliance with procedural rules/principles and a minimum threshold of seriousness
• Jurisdiction/admissibility: Ratione personae;

  • Staff members/former staff members-beneficiaries
  • Non-staff personnel (consultants in certain cases)
  • Staff associations in certain (very restrictive) cases
• Jurisdiction/admissibility: Ratione materiae;

  • Non-observance of employment terms
  • Final administrative decision
  • Adverse administrative decision
• What are the bad sides of justification?

  • Exhaustion of remedies
  • Mootness
  • Res judicata
  • Lack of clarity of complaint
  • Invocation of new arguments during