����AV

Receivability The Tribunal found that the ASG, OHRM’s failure to take action on the Applicant’s complaint almost nine months after its filing, taking into account only the period that preceded the request for management evaluation, is a clear violation of the provisions of ST/SGB/2008/5. The Tribunal considered that the Administration’s failure to act on the Applicant’s complaint amounted to an implicit administrative decision that was subject to judicial review. The application was therefore considered receivable. Merits The Tribunal found that the failure to process the Applicant’s complaint was unlawful insofar as it did not comply with the provision of ST/SGB/2008/5 for the following reasons. There is no provision allowing the Secretary-General to unilaterally decide to suspend or defer the treatment of a complaint under ST/SGB/2008/5, nor any discretionary power involved. In deciding to defer the consideration of the Applicant’s complaint, the Secretary-General was not exercising any specific right under the rules that could justify a delay in the conclusion of the investigation under the Appeals Tribunal’s jurisprudence. He was making a unilateral decision to deviate from the applicable rules, which is not permitted. Furthermore, there was no cogent reason to defer consideration of the Applicant’s complaint until a decision is made on her application in Case No. UNDT/GVA/2017/052, which challenges, inter alia, the issuance of a press release of 2 February 2017 on the basis of alleged violations of the Applicant’s rights to privacy and to be protected against defamation. An investigation into a complaint of abuse of authority has a different purpose than the Tribunal’s review of the decision to issue a press release if this is deemed to constitute a reviewable administrative decision. Remedies Given that the unlawfulness in the present case involved inaction, the Tribunal considered that the appropriate remedy was an order for specific performance under sec. 10.5(a) of its Statute, to compel the Administration to make a determination as to whether to initiate a fact-finding investigation into the Applicant’s complaint, in accordance with sec. 5.14 of ST/SGB/2008/5. Taking into account the time already elapsed and the fact that the ASG, OHRM, had already received comments from the High Commissioner, the Tribunal considered it appropriate to give the ASG, OHRM, a thirty-calendar day deadline to do so. The Applicant's request for moral damages was rejected.