iii. Compensation

When it comes to the adoption of a decision on pecuniary compensation to the applicant, the Chamber uses rather wide prerogatives both in relation to a formal presumption about compensation,³⁷³⁹ and in relation to the amount thereof.³⁷⁴⁰ Thus, in that sense, the Chamber may not be viewed as equivalent to a civil court.³⁷⁴¹ Even if the request for pecuniary compensation was not made formally, nevertheless it did not prevent the Chamber from awarding compensation.³⁷⁴² Similarly, if the request has been made, the nature and amount stated in the request are not binding on the Chamber.³⁷⁴³ The basis for each and any decision may only be the established facts arising from a decision of the Human Rights Chamber. Accordingly, the presumed non-pecuniary damage, which is claimed to have resulted from a violation of human rights, is not taken into account if the Chamber has not indeed established such damage in its decision.³⁷⁴⁴

Compensation awarded by the Human Rights Chamber is not related to and does not depend on the compensation that an individual might claim under the national legal regulations. What is more, the Chamber may award compensation even if an individual has never tried to obtain compensation earlier by exhausting the other legal remedies available under the national legal system. The rule on exhausting other available legal remedies referred to in Article VIII.2(a) of Annex 6, is not, therefore, applied in such cases, since the competence of the Chamber in such cases directly arises from Article XI of Annex 6, and that, actually, it constitutes the obligation of efficient protection of human rights.³⁷⁴⁵

The Chamber may award compensation only for the applicant, not for the relatives thereof.³⁷⁴⁶ The applicant may also be awarded compensation for the costs of the proceedings, including the costs of a lawyer.³⁷⁴⁷ Compensation is awarded only for violations that occurred in the period after 14 December 1995. If the defendant fails to pay compensation within the time limit determined by the Chamber, the payment of interest may be imposed effective from the moment of expiry of the mentioned time limit.³⁷⁴⁸ This should be distinguished from the obligation to pay a certain amount for each day the defendant defaulted on paying compensation,³⁷⁴⁹ as that is a sort of mixture of payment of compensation and a fine as a means of force the payment of pecuniary compensation.

In the event of a delay in restoring possession over apartments and real estate, in addition to the obligation to undertake all actions in order to restore possession quickly, the Chamber may award compensation also for mental suffering, as well as compensation of the costs which were incurred in the meantime as a result of the use of alternative accommodation.³⁷⁵⁰

In the beginning the injured party was even given a time limit within which it had the possibility to file (other) claims for compensation, partially even after the adoption of a decision on the merits.³⁷⁵¹ If the given time limit elapsed and the applicant failed to request an extension of the time limit, all possible claims for compensation would be ruled out.³⁷⁵² Subsequently, the Chamber adopted the practice whereby it would advise the applicant during the proceedings of the possibility to claim compensation, in order to be able to address all possible requests in the decision on the merits. Likewise, the Chamber seldom awarded the compensation of damage or costs that the applicant claimed to have incurred (e.g., costs of a lawyer) concerning which no evidentiary material was submitted within the given time limit.³⁷⁵³

In Case No. CH/01/6979, the Chamber awarded the compensation of KM 15,000 for the suffering of a victim’s wife, and an additional KM 50,000 for the loss of a husband. Compensation is paid also in the event of a tarnished reputation or defamation of character, caused, for instance, by reports in the media.³⁷⁵⁴ Accordingly, the Chamber awarded compensation of KM 15,000 to a person who was threatened for several years with execution, which is contrary to the ECHR, for fear the person endured owing to possible execution.³⁷⁵⁵ For unlawful detention in duration of seven months (Article 5 of the ECHR) and during which the injured person was exposed to severe maltreatment (Article 3 of the ECHR), which caused permanent damage to his health, the Chamber awarded compensation in the amount of KM 30,000.³⁷⁵⁶ For ten- months of unlawful detention, during which the injured person was exposed to discriminating treatment, compensation of KM 30,000 was awarded,³⁷⁵⁷ and for 18 months of unlawful detention, whereby no additional violations were found under the ECHR, compensation of KM 25,000 was awarded.³⁷⁵⁸ The Chamber also awarded pecuniary compensation for lost items if sufficient evidence about the responsibility of State bodies existed.³⁷⁵⁹ For inappropriately lengthy proceedings, within the meaning of Article 6 of the ECHR, the Human Rights Commission within the BiH Constitutional Court, relying on the case law of the European Court, established in 2006 the criteria for the establishment of just compensation for each year of unreasonably lengthy proceedings. In “ordinary” proceedings amounts of KM 343 to 515 were awarded for each year of unreasonably lengthy proceedings, and in the so-called urgent proceedings double the amount was awarded for each year.³⁷⁶⁰