2016-UNAT-646, Dalgaard et al.
UNAT held that the motion did not fulfil the requirements of Article 11 of the UNAT Statute, which provides that a revision must be based on the discovery of a decisive fact which was, at the time the judgment was rendered, unknown to UNAT and to the party applying for revision, always provided that such ignorance was not due to negligence. The Applicants were relying on Article 31. 1 of the RoP and not on Article 11 of the UNAT Statute. UNAT held that a rule could not supplant a statutory provision such as Article 11 and that Article 31. 1 only applied where there is no other expressly applicable rule, such as Article 11 of the Statute in this case. UNAT held that the application, therefore, had become manifestly inadmissible ratione materiae. The Motion to set aside the judgment on moral damages and execute original judgment, and, alternatively, motion for reconsideration of judgment No. 2015-UNAT-532 were dismissed as not receivable.
UNAT rendered its judgment No. 2013-UNAT-359, in the case of Ademagic et al. and McIlwraith v. Secretary-General of the United Nations (Ademagic et al. ), awarding compensation for moral damages to each staff member whose substantive due process rights had been breached by the Administration when it failed to accord “every reasonable consideration” to the staff members of the International Criminal Tribunal for the former Yugoslavia (ICTY) in considering their suitability for conversion from fixed-term to permanent contracts. The Applicants filed a motion for execution of the moral damages order, which UNAT by majority denied en banc in judgment No. 2015-UNAT-532. In denying the motion, UNAT noted that the Applicants had either resigned, retired, or transferred from the ICTY prior to the issuance of the impugned decision. The Applicants filed a second motion to set aside the judgment on moral damages and execute the original judgment, and, alternatively, a motion for reconsideration of judgment No. 2015-UNAT-532.
An application for “reconsideration”, “guidance”, “ruling on issues of appellate jurisdiction” and “approach”, or any application which, in fact, seeks a review of a final judgment rendered by UNAT can, irrespective of its title, only succeed if it fulfils the strict and exceptional criteria established by Article 11 of the UNAT Statute (discovery of a decisive fact previously unknown not due to negligence, clerical or arithmetical mistakes, and interpretation of meaning). The authority of a final judgment – res judicata – cannot be so readily set aside. There are only limited grounds, as enumerated in Article 11 of the UNAT Statute, for review of a final judgment. A rule – such as Article 31 of the UNAT RoP – cannot supplant a statutory provision, such as Article 11 of the UNAT Statute. By its language, Article 31. 1 of the RoP applies only when there is no other expressly applicable rule.