2013-UNAT-324, El-Komy
UNAT held that the exclusion of the right to appeal a decision to suspend the execution of an administrative decision constitutes an exception to the general principle of the right to appeal and must, therefore, be narrowly interpreted; UNAT held that the exception applied only to jurisdictional decisions ordering the suspension of an administrative decision pending management evaluation. UNAT held that no jurisdictional decision, which, as in matter before it, ordered the suspension of a contested administrative decision for a period beyond the date on which the management evaluation was completed, could be considered as falling within the scope of the exception to the right to appeal. UNAT held that, as the UNDT Statute clearly prohibited the adoption of such suspension in cases of appointment, promotion, or termination, the appeal was receivable because UNDT exceeded its jurisdiction in ordering the suspension of the contested decision beyond the date of completion of management evaluation in a matter concerning an appointment. UNAT held that UNDT clearly exceeded its competence and, therefore, the appeal was receivable and well-founded. UNAT allowed the appeal and vacated the UNDT Order.
The Applicant contested the decision not to separate him on the expiration of his probationary appointment. In Order No. 118 (NY/2013), UNDT denied Mr El-Komy’s request for an expedited hearing and suspended the separation decision pending the final determination on the substantive merits of the application or a further Order. UNDT considered that the exclusionary provision of Article 10(2) of the UNDT Statute was not applicable and that it had the power to order such interim relief. UNDT indicated that it would consider whether to review the case on an expedited basis once it had received the Secretary-General’s reply.
In principle, administrative decisions are executable upon their adoption. The suspension of the execution or implementation of an administrative decision constitutes an exception that cannot be extended beyond the limits and prohibition established by the UNDT Statute.