Compensation, Article 5, paragraph 5 of the ECHR

Pursuant to Article 5, paragraph 5 of the ECHR, any person who is deprived of liberty contrary to the above provision shall be entitled to compensation. In order for the appellant to be authorised to file a compensation claim in accordance with Article 5, paragraph 5 of the ECHR, he must first reach a legally binding decision establishing the violation of some rights guaranteed under Article 5, paragraphs 1-4 of the ECHR.⁸⁹¹ An approval for special compensation provided for under domestic procedural law is not a requirement for filing a compensation claim under Article 5, paragraph 5 of the ECHR.⁸⁹² This is because the right to compensation must be enforceable in practice. In such a case the general principles on the effectiveness of legal remedies are applied. Moreover, the compensation claim must include both pecuniary and non-pecuniary damage.⁸⁹³ In the opinion of the Human Rights Chamber, BiH and the Entities were under an obligation to secure the effective mechanisms for legal protection concerning compensation for prisoners of war who were kept in detention after March 1996.⁸⁹⁴ The Federation of BiH was not able to produce evidence that mechanisms de lege lata are effective with respect to different compensation claims.⁸⁹⁵ On the other hand, the civil courts were not Keus v. Holland of 25 October 1990, Series A no. 185-C, paragraph 27; Niedbala v. Poland of 4 July 2000, paragraph 66 et seq.; EComHR, Farmakopoulos v. Belgium, Application No. 11683/85 of 4 December 1990; for details see also CH/02/12427- A&M, paragraph 143 et seq. considered competent, so the injured persons enjoyed no legal protection.⁸⁹⁶ However, in some cases the BiH Constitutional Court established that there was a violation of the right under Article 5 and ordered just compensation because of both an insufficiently effective compensation mechanism (Article 5, paragraph 5 of the ECHR) and violations of the rights under Article 5, paragraphs 1-4 of the ECHR.⁸⁹⁷ Based on its positive obligations to protect human rights and fundamental freedoms, Bosnia and Herzegovina cannot be released from its obligation to pay the just compensation for human rights violations referred to in Article 5 of the ECHR with an explanation that the international community (in this specific case SFOR) is also responsible for the violation.⁸⁹⁸