����AV

The Tribunal raises on its own motion the question of the receivability ratione materiae, namely whether the OIOS decision was an appealable administrative decision. On the merits, it finds that the OIOS decision is lawful. Tribunal’s obligation to raise on its own motion issues related to its competence: Before ruling on the legality of a decision, the Tribunal must examine on its own motion—that is, even if the issue was not raised by the parties—whether it is competent, pursuant to its Statute, to hear and pass judgment on an application, including whether the contested decision is an appealable administrative decision (receivability ratione materiae). Failure to do so may result in the Tribunal acting ultra vires. The OIOS decision not to conduct an investigation is an appealable administrative decision: Whilst the General Assembly gave OIOS “operational independence”—which prohibits the Secretary-General from giving instructions to that Office in the conduct of its investigative duties—the GA also specified that OIOS acts “under the authority of the Secretary-General”, thus recognizing that the Secretary-General is ultimately liable for any breach of staff members’ rights by OIOS. The fact that the Secretary-General, at the management evaluation stage, cannot overturn an OIOS decision not to conduct an investigation is no obstacle to the Tribunal’s competence to review such a decision. Standard of review of OIOS decisions in relation to its investigative duties: The Tribunal interferes with the discretion of OIOS only where it finds that the procedure was irregular, the decision is based on an error of fact or a clearly mistaken conclusion has been drawn from the facts. In the present case, the Tribunal considers that, in deciding to refer the matter for investigation to the Security and Safety Section on the grounds that it was a simple theft which fell under Category II (cases of lower risk to the Organization), OIOS lawfully and reasonably exercised its discretion. In so finding, the Tribunal takes into account the nature and confidentiality of the documents which allegedly disappeared. The Tribunal also finds that there was no procedural irregularity. In view of the fact that OIOS is bound by an obligation of confidentiality, it was correct in requesting the Applicant to provide a written authorisation for the disclosure of her identity prior to referring the matter to the Security and Safety Section.