1. 1 Legal Support Office, Bureau of Management (LSO/BOM) Administrative law presentation July 2015

2. 2 LSO/BOM What the Administrative law or AL section does — All formal cases of misconduct and appeals against administrative decisions — Including before the UN Dispute Tribunal — Questions on specific issues such as personal status, benefits, recovery — Issues of privileges and immunities including visa, tax and arrest/detention — Policy and administrative issues

3. 3 LSO/BOM Three important points: — We represent the administration— and our advice is for management — We cannot advise individual staff members on legal matters — We are the legal office for UNDP — CO should not hire their own lawyers

4. 4 UNDP Legal Framework for Addressing Non- Compliance w/ UN Standards of Conduct Replaces the 2004 Prescriptive Content on Accountability, Disciplinary Procedures and Measures First issued in September 2007, current version January 2010 Main innovation: whistleblowing policy and protection against retaliation

5. 5 Reporting of allegations of wrongdoing  Internal Reporting  Exceptional Disclosure outside Internal Reporting Mechanisms  Content of the Report  Responsibilities of Managers  Responsibilities of Whistleblowers

6. 6 Fact-Finding and Investigation In addition to the Whistleblowers, there are three other parties involved in fact-finding and investigation, with their specific rights and responsibilities:  The Investigation Subjects  The Investigation Participants  The Investigators

7. 7 Due Process Rights of the Investigation Subject  To be informed of the nature of the allegations  To respond to the allegations  To present countervailing evidence  To have the assistance of counsel when charged

8. 8 Protection against Retaliation Protection against retaliation of a staff member who: Has reported allegations of wrongdoing in good faith Has cooperated with an audit or an investigation in good faith Charge of misconduct against a staff member who retaliated against: A whistleblower A person who cooperated with an audit or an investigation

9. 9 How to file a complaint of retaliation:  Addressed to the Ethics Advisor  No later than 60 calendar days after the alleged act or threat of retaliation

10. 10 Role of the Ethics Advisor  Receive complaints of retaliation and make an initial review;  Refer the case to OAI for investigation if there is a credible case of retaliation or threat of retaliation;  If the investigation corroborates the allegations of retaliation, refer the case to LSO/BOM;  Make recommendations for appropriate measures to be taken;  Communicate with the complainants.

11. 11 Procedures Following Investigation Three possible courses of action: 1.Exoneration from allegations 2.Work performance related issues 3.Charges of misconduct

12. 12 Formal Grievance Resolution  Staff members: -Administrative decision: -1. Request for management evaluation; -2. UN Dispute Tribunal (UNDT); -3. UN Appeals Tribunal (UNAPT); -Disciplinary decision: -1. Response to charges; -2. UNDT -3. UNAPT

13. 13 UNV:  1. Request for review to the Executive Coordinator, UNV;  2. Request for review to the Administrator;  3. Arbitration

14. 14 The Informal System  Major reinforcement of the Ombudsman’s Office in terms of capacity and functions  Addition of a Mediation Division – in order to resolve disputes before litigation  Decentralized presences in all major duty stations and peacekeeping missions  The Funds and Programmes’ Ombudsman will be part of an integrated UN Ombudsman office

15. 15 The Formal System  The UNDT is a first-instance tribunal with full-time judges making binding decisions  Decentralized UNDTs in New York, Geneva and Nairobi  The UN Appeals Tribunal is a second-instance tribunal making binding decisions

16. 16 Privileges & Immunities 1) Application of privileges and immunities in general — origins — when it applies, how it applies 2) What to do in specific areas of privileges and immunities — arrest/detention by authorities — taxation — subpoena/summons and search

17. 17 Four Key Points to take-away 1) Privileges and immunities for official functions 2) Privileges and immunities belong to the organization — they are not a right of staff members 3) ONLY Secretary-General can decide if privileges and immunities apply and/or should be waived — this is NOT delegated to UNDP or the Administrator 4) Always seek an official response from the Ministry of Foreign Affairs — whatever the situation

18. 18 Privileges & Immunities Sources of privileges and immunities — Charter Articles 100, 104 and 105 — 1946 Convention on privileges and immunities — Bilateral agreements (SBAAs, exchanges of letters) — Custom or practice

19. 19 Privileges & Immunities Privileges and immunities exist to preserve the independence and international character of the Organization and its staff members — What does that really mean?

20. 20 Refresher 4 Points to take away 1) privileges and immunities belong to the Organization — not rights or entitlements of staff members 2) Only the Secretary-General decides if privileges and immunities apply and if they should be waived — not delegated to UNDP 3) Privileges and immunities apply for official acts/functions — not personal or private matters 4) Privileges and immunities requires getting an official MFA response — protocol is important

21. 21 Arrest & Detention Step by step guide Step 1 — Establish the safety and condition of the staff member

22. 22 Arrest & Detention Security and/or senior manager goes to place of detention and a) requests access b) requests copy of the charges and any police or incident report

23. 23 Arrest & Detention If access to detained staff member is granted a) assess physical condition of the staff member — if in need of medical attention, request to bring a doctor b) establish if staff member needs legal assistance c) establish if staff member has contacted spouse/family d) confirm if staff member understands what he/she is arrested for

24. 24 Arrest & Detention If access is denied, obtain charges or other information and request to return soon for access

25. 25 Arrest & Detention Step 2 — Resident Representative sends a Note Verbale (NV) to the Ministry of Foreign Affairs (MFA) — “to obtain information to enable the Secretary-General to determine if privileges and immunities are applicable” — if access was denied, access should be requested

26. 26 Arrest & Detention Step 3 — Notify LSO/BOM with: —any documents received from authorities —NFR of visit to place of detention —physical condition of staff member —access to lawyer or spouse/family —if spouse/family has been notified —copy of the NV to the MFA and date sent —other relevant circumstances

27. 27 Arrest & Detention Step 4 — LSO/BOM will contact the Office of Legal Counsel — we may revert to you if they have other questions/requests based on the information provided

28. 28 Arrest & Detention From there.... If privileges and immunities are applicable — Legal Counsel will draft or advise on a NV asserting privileges and immunities

29. 29 Arrest & Detention IMPORTANT If privileges and immunities are NOT applicable — details of the proceedings should be requested from the MFA — a representative from the Country Office should witness the court proceedings —facilitate legal representation or communication with spouse/family — consider administrative status of staff member while trial is underway

30. 30 Some general principles 1)All UNDP staff members are immune from taxation on their UN earnings — this includes salary AND other payments (“emoluments”) such as DSA, hazard, dependency and education grant 2)staff members are responsible for taxes on all non-UN earnings 3)the staff assessment is NOT a tax — the UN will not qualify the staff assessment as a tax for offset

31. 31 What to do when the Country Office or a staff member receives a demand for taxes on UN earnings?

32. 32 Step 1 — Identify if other staff members have received the demand for taxes IMPORTANT—staff members should NOT assume the Organization will resolve the matter

33. 33 Step 2 — Contact other UN Organizations to ascertain if they or their staff have also received the demand NOTE — If tax demand involves an imminent deadline, a NV should be sent to the taxing authority requesting an extension while the situation is clarified

34. 34 Step 3 — Contact LSO/BOM Provide the following: — summary of the issue — scan of the original tax demand letter — rough translation of the letter — indication which other UN organizations or staff members have received the letter and whether their legal offices have been alerted

35. 35 SUMMARY — UNDP staff members are immune from tax on their UN earnings and emoluments — they are NOT immune from tax on other sources of income — staff assessment is not considered a tax for purposes of offset against taxable income

36. 36 RULE 1 The premises of UNDP and its documents are inviolable and immune from search, requisition or confiscation.

37. 37 Convention on privileges and immunities Article II SECTION 3. The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action. SECTION 4. The archives of the United Nations, and in general all documents belonging to it or held by it, shall be inviolable wherever located.

38. 38 RULE 2 Staff members are immune from legal process for any words spoken or written on official acts

39. 39 What to do when receiving a summons or subpoena?

40. 40 Step 1 Do NOT sign anything confirming receipt — any reception staff members should act similarly

41. 41 Step 2 Send a copy to the Ministry of Foreign Affairs with a NV — indicating the document was received — recalling privileges and immunities provisions — requesting information — this is especially important if there is subpoena to question a staff member we want to know what this is about

42. 42 Step 3 Inform LSO/BOM Provide — copy of the summons or subpoena — a rough translation of the document — a summary if the surrounding facts are known — a copy of any NVs sent or received

43. 43 Step 4 If information is sought by a court that can be disclosed (identification of staff members for example) or that it has been decided will be disclosed, disclosure should be ONLY to the MFA

44. 44 Step 5 For a subpoena of a staff member to testify or police request to question — the following applies (upon consultation with LSO/BOM ) a)clarification on the nature and scope of the questions b)can the questions and the answers be given in written form ?

45. 45 Step 5 (cont’d) c)if not, can the question and answers occur on the UN premises in the presence of officials? d)if not, can the question and answers be given not under oath e)at the least the questioning should occur in the presence of a representative of the office (a senior manager or security)