iv. Special cases of effective and ineffective legal remedies

The following classification of effective legal remedies is particularly present in the case-law of the Human Rights Chamber and the Human Rights Commission within the BiH Constitutional Court:

■ If there is an arguable claim that a person has disappeared at the hands of the authorities, the notion of an effective remedy for the purposes of Article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible.³⁰⁸⁹ It is no less important that such an investigation should be capable of clarifying the whereabouts or fate of the victim. This thorough and effective investigation has to be initiated by the competent authorities of their own motion as soon as it is apparent that such a disappearance has taken place;³⁰⁹⁰

■ As to labour disputes, particularly those that ended in the termination of employment relations during the armed conflict or immediately after the armed conflict, it was difficult for the applicants to submit evidence of the existence or pursuance of effective legal remedies. The following guidelines were determined through the case-law: in the event that an employee has not received a decision on the termination of employment relations, but he/she was informed of it in another manner (including the reasons for dismissal), the time limit to pursue a legal remedy starts running from the date when the reasons for employment termination were brought to his/ her knowledge.³⁰⁹¹ In the event that the employee has no information on the termination of his/her employment relations, he/she has an obligation immediately after returning to the pre-war place of residence to contact his/ her employer within the time limit prescribed by the law, to get information on his/her employment status and, if necessary, institute appropriate proceedings for protection of his/her employment rights.³⁰⁹² Consequently, the employee must actively contribute to the legal protection of his/her rights before addressing the Human Rights Chamber and Human Rights Commission within the BiH Constitutional Court;³⁰⁹³

■ Claim for compensation for damage in case of death of a close relative either within criminal proceedings or, isolated, within civil proceedings;³⁰⁹⁴

■ Inheritance claim before instituting civil proceedings against debtor, a presumed heir of the deceased;³⁰⁹⁵

■ Challenge of administration silence in the first-instance proceedings regardless of whether an administrative authority fails to take a decision or responds on request in an informal letter;³⁰⁹⁶

■ Action to establish the legal standing to be sued in the enforcement proceedings in the event such objection has been raised;³⁰⁹⁷

■ Prisoner’s complaint with the prison warden about prison conditions;³⁰⁹⁸

■ Claim for disturbance of possession of a returnee whose possessions are again unlawfully occupied following his/her return;³⁰⁹⁹

The following legal remedies were regarded as ineffective by the Human Rights Chamber and the Human Rights Commission within the BiH Constitutional Court:

■ If ill-treatment was committed by the police officers (Article 3 of the ECHR), a civil action against the perpetrators in order to obtain compensation for damages suffered or adequate civil proceedings against such persons are not regarded as effective legal remedies which the injured person must exhaust.³¹⁰⁰ Such action or criminal report against responsible police officers does not satisfy the standards under Article 3 of the ECHR in terms of being capable of providing redress in respect of the applicant’s complaints, but a legal remedy against the government must be at the injured party’s disposal, which is capable of helping him/her in the given situation, i.e., ceasing mistreatment.³¹⁰¹ Claims for compensation for damage must also include compensation for non-pecuniary damage such as compensation for the fear and pain suffered and harm suffered to honour and reputation.³¹⁰² If an injured party has a justified fear that a possible complaint for mistreatment by police officers during detention could provoke further mistreatment, such person is not obliged to file a complaint to the prison warden; he/she does not have to avail himself/herself of that legal remedy.³¹⁰³ Disciplinary proceedings against police officers may be regarded as an effective legal remedy only if the disciplinary body conducts the proceedings in a professional and impartial way. If it is lacking and if it remains unclear whether the injured party has been given a real and legal possibility of challenging the results of the disciplinary proceedings before the competent authorities, such legal remedies do not have to be exhausted and such an objection cannot be raised;³¹⁰⁴

■ Appeal against the first-instance decision whereby a labour dispute was referred to the Commission for Implementation of Article 143 of the Labour Law,³¹⁰⁵ or the appeal against the first-instance judgment whereby an action against a decision of this Commission has been rejected as inadmissible.³¹⁰⁶