Judgment No. 4493
The complaint is dismissed.
The complainant challenges the decision not to award him moral damages for the length of the internal appeal procedure.
moral injury; delay in internal procedure; complaint dismissed
The Tribunal’s case law has consistently stated that the complainant shall produce evidence of the injury suffered and of the causal link between the length of the procedure and the injury (see Judgment 4306, at consideration 19, recalling the principle also set out in Judgment 1942, consideration 6):
“[The complainant] provides no evidence of emotional distress or of any other injury or loss suffered. The case law, for example in consideration 5 of Judgment 4156, requires a complainant to provide evidence of the injury suffered as a result of alleged unlawful acts. In the premises, the Tribunal finds that the complainant is not entitled to an award of moral damages [...]”
According to the Tribunal’s case law, the Tribunal does not automatically grant moral damages for excessive delay. The complainant has to articulate the adverse effects of the delay and support them with evidence. The Tribunal observes that in the present case, the complainant eventually achieved the expected productivity factor and his productivity was thus evaluated as “good” in his staff report for 2006-2007. The warning letter was also removed from the complainant’s personal file in October 2012. There is no evidence showing that the length of the appeal proceedings had an adverse consequence on the complainant’s career, or caused the complainant to sustain psychological pressure, stress, anxiety, or other moral injury in his professional and personal life. It is obviously not sufficient for the complainant merely to adduce his testimony to allege the injury.
Jugement(s) TAOIT: 1942, 4156, 4306
moral injury; delay in internal procedure
With regard to the complainant’s reference to the case law of the European Court of Human Rights, it has to be recalled that this Tribunal is not bound by the case law of other international or regional courts (see Judgments 3138, consideration 7, and 4363, consideration 12). The Tribunal also held in Judgment 3815 that “the [European] Convention [on Human Rights] is not in any event applicable as such to international organisations within the legal system to which the Tribunal belongs” (see Judgment 3815, consideration 3, and Judgments 2236, consideration 11, 2611, consideration 8, and 2662, consideration 12). Therefore, the reference by the complainant to the case law of the European Court of Human Rights should not be applied in the present case.
Jugement(s) TAOIT: 2236, 2611, 2662, 3138, 3815, 4363
applicable law; european convention on human rights
With regard to the complainant’s request for punitive damages, the Tribunal notes that the purpose of punitive damages is not compensation. They are awarded as a punishment and deterrent. It is not the unlawful act itself that will result in such an award, but rather the intention to harm that accompanies it. The complainant alleges that the Organisation intentionally delayed the procedure by raising an objection of conflict of interest in regard to the Chair of the Internal Appeals Committee, two days before the date of the hearing scheduled on 30 November 2012. It must be noted that the objection was not frivolous since the Chair withdrew from the case. Thus, the alleged bad faith and intentional delaying tactics on the part of the Organisation is purely speculative and unsubstantiated.