UNDT/2013/132, Lubbad
The mention of the Applicant's name in several documents communicated to a number of countries in relation to an ongoing investigation had an impact on the Applicant's professional mobility. Indeed, while on official travel, the Applicant had been stopped in various airports, sometimes for several hours, and had been asked whether he had another passport in his possession. The absence of a response from OIOS over the course of its multi-year investigation was a deliberate act, if not an instance of negligence in the Administration's duty to act within a relatively reasonable time. This failure to respond impacted on the Applicant's professional reputation by leaving him open to suspicion in his professional environment. The decision to open an investigation into forged passports, to remain silent for several years and to mention the Applicant's name in a number of documents related to the investigation and communicated to various countries constituted an administrative decision that had an impact on the Applicant's terms of appointment. UNDT stated that it did not have jurisdiction over matters concerning defamation, as it is bound by the provisions of Article 2 of its statute. UNDT held that the Application was receivable in all respects other than the concept of defamation
The Applicant contested: 1) the Administration’s implicit refusal to take a decision on an investigation by the United Nations Office of Internal Oversight Services (OIOS) into allegations about his involvement in a network of traffickers of forged passports; 2) the Administration’s refusal to cease defaming the Applicant despire his repeated objections, and 3) the alleged breach of his right to confidentiality.
Whether or not the UNDT may review a decision not to undertake an investigation, or to do so in a way that a staff member considers breaches the applicable Regulations and Rules will depend on the following question: Does the contested administrative decision affect the staff member’s rights directly and does it fall under the jurisdiction of the UNDT?