12.  The applicants were born in 1962 and 1965 respectively and live in Bouligny. 13.  In 1990 the applicants had their first child, A., who was born with type 1 infantile spinal amyotrophy, a genetic disorder causing atrophy of the muscles. 14.  In 1992 Mrs Maurice became pregnant again. A prenatal diagnosis conducted at Nancy University Hospital revealed that there was a risk of the unborn child’s being afflicted by the same genetic disorder. The applicants chose to terminate the pregnancy. 15.  In 1997 Mrs Maurice, who was pregnant for the third time, again requested a prenatal diagnosis. This was conducted at Briey General Hospital, which sent the sample to the molecular diagnosis laboratory of the Necker Children’s Hospital Group, run by Assistance publique-Hôpitaux de Paris (“AP-HP”). In June 1997, in the light of that laboratory’s diagnosis, Briey General Hospital assured the applicants that the unborn child was not suffering from infantile spinal amyotrophy and was “healthy”. 16.  C. was born on 25 September 1997. Less than two years after her birth it became apparent that she too suffered from infantile spinal amyotrophy. On 22 July 1999 a report by the head of the laboratory at the Necker Children’s Hospital in Paris revealed that the mistaken prenatal diagnosis was the result of transposing the results of the analyses relating to the applicants’ family and those of another family, caused by the switching of two bottles. 17.  According to medical reports, C. presents grave disorders and objective signs of functional deficiency – frequent falls from which she is unable to get up unassisted, unsteady walk, tiredness at any effort. She needs the assistance of another person (particularly at night in order to turn her over so as to prevent her from suffocating, since she is unable to turn over alone). She cannot sit on her own and moves around with an electric scooter. She has to receive treatment several times a week and cannot be admitted to school because the latter is not suitably equipped. Her family doctor has expressed the view that “one must have reservations until the time of puberty both about motor and respiratory functions and about possible orthopaedic deformations”. These facts gave rise to several sets of proceedings. 18.  On 13 November 2000 the applicants submitted a claim to AP-HP seeking compensation for the pecuniary and non-pecuniary damage suffered as a result of C.’s disability. 19.  They also submitted to the urgent applications judge at the Paris Administrative Court a request for an interim award and for an expert to be appointed. The latter was appointed by an order issued on 4 December 2000. 20.  In an order made on 26 April 2001, the urgent applications judge at the Paris Administrative Court dismissed the request for an interim award on the ground that, as the expert had not yet delivered his report, “AP-HP’s obligation to pay [could] not be regarded as indisputable”. 21.  The expert submitted his report on 11 June 2001, concluding that on the occasion of the prenatal diagnosis conducted at the AP-HP laboratory there had not been medical negligence, because “the techniques employed [had been] consistent with the known scientific facts”, but there had been “negligence in the organisation and functioning of the service causing the transposition of results between two families tested at the same time”. 22.  The applicants lodged a further application, asking for the hospital to be ordered to pay them an advance of 594,551 euros (EUR). In an order made on 19 December 2001, the urgent applications judge at the Paris Administrative Court ordered AP-HP to pay an advance of EUR 152,449. He observed in particular:
“... it is apparent from the investigation that in May 1997, at Briey General Hospital, a sample of amniotic fluid was taken from [Mrs Maurice] ...; that the analysis of that amniotic fluid was carried out by Assistance publique-Hôpitaux de Paris; that while the results given [to the applicants] indicated that the unborn child was not suffering from infantile spinal amyotrophy, they related to a sample taken from another family tested at the same time and did not mention that, the sample of amniotic fluid having been contaminated by the mother’s blood, they were attended by uncertainty; that [the applicants] are therefore entitled to argue that Assistance publique-Hôpitaux de Paris was guilty of negligent acts or omissions; that those negligent acts wrongly led [the applicants] to the certainty that the child conceived was not suffering from infantile spinal amyotrophy and that [Mrs Maurice’s] pregnancy could be carried to term in the normal way; that these negligent acts must be regarded as the direct causes of the damage sustained by [the applicants] from the disorder from which C. suffers; and that, this being the case, the existence of the obligation claimed by [the applicants] is not seriously open to challenge.” 23.  AP-HP appealed. In its submissions it argued that, while the transposition of the analyses had indeed constituted negligence in the organisation and functioning of the public hospital service, the only result of that negligence had been to deprive the applicants of information apt to enlighten their decision to seek a termination of the pregnancy. On the basis of the above-mentioned expert report, AP-HP submitted that even if the samples had not been transposed, the results would have been uncertain, having regard to the presence of the mother’s blood in the sample taken. Consequently, the applicants would not in any case have had reliable information available to them. 24.  In a judgment of 13 June 2002, the Paris Administrative Court of Appeal varied the order issued by the urgent applications judge, reducing from EUR 152,449 to EUR 15,245 the amount of the interim award to the applicants. In its judgment it observed:
“Liability:
... after the birth [of C.], as the child had been found to be suffering from [infantile spinal amyotrophy], it emerged that the reason incorrect information had been given to the parents was that the results of the analyses carried out on two patients had been switched. It is not contested that the results were switched by the staff of [AP-HP] ...The negligence thus committed, as a result of which [Mrs Maurice] had no reason to request an additional examination with a view to termination of the pregnancy on therapeutic grounds, must be regarded as the direct cause of the prejudice suffered by [the applicants].”
The court went on to say:
“Entitlement to the interim award requested:
... the infantile spinal amyotrophy from which the child C. suffers is not the direct consequence of the above-mentioned negligence ... Accordingly, pursuant to the provisions ... of paragraph I of section 1 of the Law of 4 March 2002 [on patients’ rights and the quality of the health service – “the Law of 4 March 2002”], [AP-HP] would only be required to compensate the damage sustained by [the applicants], to the exclusion of the ‘special burdens arising throughout the life of the child’ from the latter’s disability, compensation for disability being a matter for national solidarity according to those same provisions. That being so, [AP-HP]’s plea that, for assessment of [the applicants’] right to compensation, the above-mentioned provisions of the Law of 4 March 2002 should have been applied to the dispute constitutes a serious defence against the applicants’ claim at first instance, in the amount awarded by the court below. If the above-mentioned legislative provisions ... are held to be applicable in the main proceedings now pending in the Paris Administrative Court, the only obligation [on AP-HP] which could be regarded as not seriously open to challenge would be the obligation to compensate [the applicants] for their non-pecuniary damage, which should be fixed, in the circumstances of the case, at 15,245 euros. Consequently, the interim award [AP-HP] is required to pay should be reduced to that sum ...” 25.  The applicants and AP-HP appealed on points of law. The applicants submitted only one ground of appeal to the Conseil d’Etat. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, they argued that the immediate applicability of the Law of 4 March 2002 to pending proceedings was contrary to the Convention. 26.  Having been seised in the context of a similar case (Draon, also submitted to the Court, application no. 1513/03), the Conseil d’Etat ruled, in an opinion delivered on 6 December 2002, that the Law of 4 March 2002 was indeed applicable to pending proceedings and was compatible with the provisions of the Convention (see paragraph 52 below). 27.  In a judgment of 19 February 2003 the Conseil d’Etat, ruling on the above-mentioned appeal on points of law, followed the line set out in that opinion, observing:
“It is not seriously open to challenge that such facts constituting gross negligence [faute caractérisée] which deprived [the applicants] of the possibility of terminating the pregnancy on therapeutic grounds, confer entitlement to compensation pursuant to section 1 of the Law of 4 March 2002, which came into force after the ruling of the urgent applications judge at the Paris Administrative Court and is applicable to pending proceedings. It is appropriate, in the particular circumstances of the case, to set at 50,000 euros the amount of the interim award [AP-HP] is required to pay on account of the prejudice sustained by [the applicants] personally.” 28.  Having received no reply from AP-HP two months after submitting their claim on 13 November 2000, and the absence of any reply amounting to implicit rejection, the applicants brought proceedings in the Paris Administrative Court. In their application they requested that the implicit rejection be set aside and AP-HP ordered to pay them, in particular, the following amounts: 2,900,000 French francs (FRF) (EUR 442,102) for the construction of a house and the purchase of a vehicle and a wheelchair; FRF 500,000 (EUR 76,225) in respect of non-pecuniary damage and disruption to their lives; FRF 10,000,000 (EUR 1,524,490) for pecuniary damage; and FRF 30,000 (EUR 4,573) in respect of the non-pecuniary damage suffered by their eldest daughter. 29.  Following the opinion given by the Conseil d’Etat on 6 December 2002, the applicants submitted supplementary observations to the Administrative Court asking it not to consider itself bound by the Judicial Assembly’s opinion and to declare the Law of 4 March 2002 incompatible with the provisions of the Convention. AP-HP, for its part, again submitted that the prenatal diagnosis communicated to the applicants would have been uncertain even if the results had not been transposed. 30.  In a judgment of 25 November 2003, the Paris Administrative Court ordered AP-HP to pay the applicants a total of EUR 224,500 (EUR 220,000 on their own behalf and EUR 4,500 on behalf of their eldest daughter) in respect of non-pecuniary damage and the disruption to their lives. It observed in particular:
“LIABILITY:
[The applicants] seek to establish [AP-HP’s] liability for the damage they suffered on account of the fact that their daughter C. was born with a disability not detected during pregnancy.
...
The provisions of section 1 of the Law of 4 March 2002, in the absence of any provisions in the Law providing for deferred entry into force, are applicable under the conditions of ordinary law following publication of the Law in the Official Gazette of the French Republic. The rules which it lays down, as decided by the legislature on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, are not incompatible with the requirements of Article 6 of the Convention ..., with those of Articles 13 and 14 of the Convention or with those of Article 1 of Protocol No. 1 to [the] Convention. ... The general-interest ground which the legislature took into account when laying down the rules contained in the first three sub-paragraphs of paragraph I justifies their application to situations which arose prior to the commencement of pending proceedings. Having regard to the wording of the Law of 4 March 2002, neither the fact that the system of compensation has not yet entered into force nor the fact that the mistaken diagnosis is alleged to have resulted from negligence in the organisation and functioning of the service are such as to bar application of the above-mentioned provisions to the present proceedings brought on 16 March 2001.
The administrative courts do not have jurisdiction to determine the constitutionality of statute law. The appellants cannot therefore validly assert that the above-mentioned Law of 4 March 2002 is unconstitutional.
[The applicants], whose eldest daughter suffers from infantile spinal amyotrophy, and who decided in 1992 to terminate another pregnancy after a prenatal diagnosis had revealed that the unborn child was afflicted by the same pathology, had a daughter named C. in 1997 who was discovered during 1999 to be likewise suffering from that disorder despite the fact that, in view of the results of the amniocentesis conducted on [Mrs Maurice], they had been told that the foetus was healthy. That information proved to have been incorrect because the results from two patients had been transposed. The investigation showed that the switch was imputable to [AP-HP], which runs the Necker Children’s Hospital on whose premises the sample had been analysed. The switching of the results constituted gross negligence [faute caractérisée] for the purposes of the Law of 4 March 2002. In order to absolve itself of liability, Assistance publique-Hôpitaux de Paris cannot effectively argue that, even in the absence of negligence, the diagnosis would not have been reliable because of the presence of the mother’s blood in the foetal sample, since in such circumstances it was incumbent on the practitioner responsible for the analysis to inform [the applicants] accordingly, so that they would then have been able to have a new sample taken. The gross negligence mentioned above deprived the applicants of the possibility of terminating the pregnancy on therapeutic grounds, for which there is no time-limit. Such negligence entitles them to compensation under the conditions laid down in section 1 of the Law of 4 March 2002 ...” 31.  As regards assessment of the damage suffered, the court ruled as follows:
“... firstly, the amounts sought in respect of treatment, special education costs and the costs of building a new house and purchasing a vehicle and an electric wheelchair relate to special burdens arising throughout the life of the child from her disability and cannot therefore be sums for which [AP-HP] is liable, regard being had to the above-mentioned provisions of section 1 of the Law of 4 March 2002;
... secondly, [the applicants] are suffering non-pecuniary damage and disruptions to their lives, particularly their work, of exceptional gravity, regard being had to the profound and lasting change in their lives resulting from the birth of a second severely disabled child. In the circumstances of the case, these two heads of damage must be assessed at 220,000 euros. Consequently, [AP-HP] is ordered to pay that sum to [the applicants], after deducting the interim award paid;
... thirdly, the above-mentioned provisions of the Law of 4 March 2002 do not bar payment of compensation, under the rules of ordinary law, for the non-pecuniary damage suffered by A. Maurice on account of the fact that her sister was born with a disability. In the circumstances of the case, a fair assessment of that damage requires [AP-HP] to pay the sum of 4,500 euros to [the applicants] acting on behalf of their child;” 32.  On 19 January 2004 the applicants appealed against the above judgment. The appeal is at present pending before the Paris Administrative Court of Appeal. 33.  In a complaint submitted to the Prime Minister on 24 February 2003, the applicants requested payment of compensation in the sum of EUR 1,970,593.33 based on the State’s liability for damage inflicted by reason of the Law of 4 March 2002. 34.  On expiry of the two-month time-limit following the lodging of their complaint, the applicants referred it to the Paris Administrative Court, requesting it to set aside the Prime Minister’s implicit decision to reject it and to order the State to compensate them for the damage they considered they had suffered. 35.  In a judgment of 25 November 2003, the Paris Administrative Court dismissed the complaint. It observed in particular:
“It is clear from the drafting history of the Law of 4 March 2002 that this provision is based, firstly, on the desire of the legislature not to require health-care professionals or establishments to pay compensation for the burdens occasioned by a disability not detected during pregnancy, and, secondly, on a fundamental requirement: the rejection of any discrimination between disabled persons whose disability would be compensated for in accordance with the principles of liability and those whose disability would be covered by national solidarity, their mother having refused an abortion or the disability being undetectable at the time of the prenatal diagnosis.
This desire on the part of the legislature to eliminate any discrimination between disabled persons is a bar to the establishment [by the applicants] of the State’s liability by reason of the immediate application to pending proceedings of the Law of 4 March 2002, for the purpose of obtaining compensation for the special burdens arising from the disability, not detected during pregnancy, of their child C. Consequently, the [applicants’] submissions seeking the annulment of the contested decision and an order requiring the State to pay damages must be dismissed.
...” 36.  The applicants appealed against this judgment. The appeal is now pending before the Paris Administrative Court of Appeal.


6.  The applicant was born on 30 January 1959 and lives in Bucharest, Romania. 7.  The applicant was married to I.R. and the couple had two children, C.I., born on 19 December 1992, and Th.N., born on 12 August 1996. 8.  Following divorce and child custody proceedings initiated by I.R. on 21 March 2001, the Bucharest First District Court of First Instance held on 9 October 2001 that the children should live with their mother. The applicant was entitled to visit his children according to the following schedule: every first and third weekend of the month, from 6 p.m. on Friday to 6 p.m. on Sunday; two weeks during the summer holidays; and one week during the winter holidays.
During the proceedings, two environment studies were conducted at the applicant’s home and at I.R.’s home respectively. The studies concluded that the children were well taken care of and that their development was in accordance with their age. It was noted that the elder child, C.I., had started living with the applicant on 24 September 2001, and that their relationship was based on good communication. The applicant expressed his wish that C.I. be placed with him, in the light of their close relationship.
The court did not interview the two children, given their young age.
In delivering its judgment, the court took into consideration the evidence adduced, including the two studies; it held that the mother had proved to have spent more time with the two children, but it also underlined that it was in the two children’s best interests to be placed with their mother, particularly in view of their age. 9.  The applicant appealed against the judgment, reiterating his wish that he be awarded custody of his elder son, C.I., with whom he had a very close relationship.
On 21 May 2002 the Bucharest County Court modified the first-instance court’s judgment concerning the custody of C.I., which was awarded to the applicant, in view also of the child’s own choice in the matter. The first-instance court’s reasoning concerning Th.N. was upheld without being reassessed, seeing that none of the parties contested that part of the judgment. The court’s reasoning observed that:
“In the present case, it is beyond any doubt that both parents provide for their children a very good environment for their development, both financially, and also morally.
The fact that during the marriage it was the mother who dedicated more time to the children was because she had more free time available, and also because traditionally, in any family, it is the mother who predominantly takes care of the children, especially during the first years of their lives.
It follows that the father cannot be regarded as not having shown interest in the upbringing and education of the children.” 10.  I.R. appealed against the judgment, arguing mainly that it was not in the best interests of the children that they be separated. In support of her request, she submitted several statements given by the children’s teachers, but also by the psychologist E.I.V., who had examined both children; the reports mainly noted that the two children were extremely happy to see each other, as it was obvious that they had a very affectionate relationship and that their separation had affected them both:
“The behaviour of the two brothers reveals a strongly affectionate relationship, and their break-up was followed by the psychological breakdown of C.I. (...); their separation has been very traumatising for both children”.
In another report written by E.I.V, it was noted that Th.N. had suffered as a result of the conflict-ridden relationship of his parents, and that:
“The state of conflict that marked the parents’ divorce evidently affected the child. The younger child is stable at present, even though he intensely resents the absence of his older brother.
The rare contact he had with his father following the latter’s separation from his mother evidently perturbed the psychological state of the younger child, owing to the father’s attempts to inculcate in him a hostile attitude towards the mother and to undermine his trust and his affection for her”.
The applicant for his part submitted a copy of a psychological report of 11 September 2002, as well as a medical certificate issued on 16 September 2002 concerning C.I., stating that: the boy was normally developed, presented a level of maturity appropriate for his age and did not have adjustment difficulties as a result of his parents’ separation; the sadness he had shown a few minutes after seeing his little brother proved only that he had reactions which were normal in the case of two separated brothers; and that C.I. had expressed his wish to stay with his father, even though he loved his brother and his mother. 11.  The Bucharest Court of Appeal gave its final judgment on 25 October 2002, upholding the County Court’s determination. The court held that considering C.I.’s age, his choice to live with his father was relevant and could not be ignored. The court also held that it was in the children’s best interests that their parents made it possible for them to see each other and to spend time together, whether at the mother’s house or at the applicant’s house. 12.  Following I.R.’s refusal to let the applicant take Th.N. from her home, allegedly because he did not want to “leave his mum’s house”, the applicant asked the courts to specify the exact manner in which his rights of contact were to be implemented.
In its final judgment of 21 April 2003 the Bucharest County Court held that the applicant was entitled to take Th.N. from I.R.’s home according to the visiting schedule which had been previously accepted by the courts. 13.  On 24 May 2002 the applicant initiated enforcement proceedings against I.R.; on 31 May 2002 his request was granted in court. 14.  The first summons was therefore issued by the bailiff for 28 June 2002; on that occasion, the official record drawn up noted I.R.’s absence from her residence.
On 9 July 2002, the bailiff requested information from the competent authorities regarding I.R.’s current residence.
A further summons was issued on 23 August 2002; the record drawn up on 4 October 2002 in the presence of the bailiff, the applicant and a policeman stated that no one had allowed them to enter the premises, even though noises and a human voice could be heard inside the house. 15.  In a further report issued on 16 May 2003 the bailiff noted that I.R. and Th.N. had not been at home.
The official report drawn up on 30 May 2003 noted I.R.’s assertions, according to which it was not she who had opposed the applicant seeing Th.N., but, rather, it was the child who had refused any contact with his father. In order for the father-child relationship to reach a normal level, I.R. further asserted that she would make efforts to encourage the child to grow closer to his father. The parties agreed to allow the two children to meet in a public place, firstly on 1 June 2003, between 6 p.m. and 9 p.m., and then also on the following weekends, Saturday and Sunday, between 5 p.m. and 7 p.m., after which the parents would agree upon the new schedule for mutual visits, so that the children would spend the weekends together, with each parent alternately. 16.  On 17 June 2003 I.R. lodged an objection to the report of 30 May 2003, essentially asking for a suspension of its enforcement, on account on the child’s alleged refusal to leave with his father. In support of her claims, she adduced two reports drawn up by the psychologist E.I.V. on 2 April and 16 June 2003 (see also paragraph 33 below).
On 14 July 2003 the Bucharest County Court dismissed I.R.’s objection, holding that the annulment of the report drawn up by the bailiff was not justified, in so far as the reasons relied on concerned the merits of the dispute over contact rights.
The judgment became final, as it was not appealed against by any of the parties. 17.  On 4 July 2003 the parents met at the bailiff’s office and agreed that during the summer vacation the children should stay alternately, for two weeks at a time, with each parent. I.R., however, could not agree on the period of time at issue, and thus opposed the applicant’s request that Th.N. should stay with him starting on 15 August 2003 at the latest. 18.  On 19 December 2003, in the presence of the bailiff, the applicant went to I.R.’s known residence, where he talked with I.R.’s mother, who informed him that I.R. and Th.N. had left on vacation the previous day. 19.  On 19 March 2004 the applicant and the bailiff went to I.R.’s known residence, where they found I.R.’s father. He told them that I.R. and Th.N. were not at home and asked them to leave.
On 30 April 2004 another report was drawn up by the bailiff, noting Th.N.’s refusal to join his father and go to his home. 20.  On 6 July 2004 I.R. again contested the enforcement of the impugned judgment of 2002, seeking to prove that its enforcement had become impossible, having regard to the precarious state of health of Th.N., following his two visits to his father’s house on the weekends of 6 and 20 June 2004. On those occasions, the child allegedly came back to I.R.’s home sick and confused. Following some urine tests, Th.N. was found to have been intoxicated with benzodiazepine (the first time) and with nicotine (the second time).
With respect to the alleged incidents, I.R. also lodged a criminal complaint against the applicant, accusing him of having endangered Th.N. s physical integrity (see also paragraph 30 below).
On 20 September 2005 the Bucharest (First District) Court of First Instance dismissed I.R.’s complaint, holding that in an objection to enforcement proceedings, the parties were not allowed to submit arguments concerning the merits of the enforceable judgment. Moreover, the court held that I.R. had not proven in any way her accusations against the applicant. 21.  I.R. appealed against that judgment, reiterating her allegations that the applicant had endangered Th.N.’s state of health, thereby rendering it objectively impossible to continue with the enforcement of the disputed judgment allowing him contact.
On 12 April 2006 the Bucharest County Court dismissed the appeal. In its final judgment, the court held that:
“Indeed, medical documents were contained in the file, proving that during a specific period of time, the minor did have in his body certain toxic substances; however, no fault or negligence can be imputed to the father in this regard; therefore, no impediment exists to the enforcement of his contact rights.” 22.  In the meantime, on 30 November 2005 the applicant, in the presence of the bailiff, went to I.R.’s known residence, where they found that I.R. had moved to an unknown place. Consequently, on 6 December 2005 the bailiff requested the competent authorities to inform him of I.R.’s new residence. The authorities’ reply of 22 December 2005 indicated I.R.’s residence, as noted in the official records.
On 20 January 2006 the applicant and the bailiff went to that address, where they learnt that the house had been sold to third parties in June 2005.
On 23 January 2006 the bailiff requested updated information from the competent authorities regarding the current residence of I.R.; however, in the meantime, on 19 January 2006 I.R. had sent a letter to the bailiff, notifying him and the applicant of her new residence. She had also informed the bailiff that the proceedings seeking to suspend the enforcement of the judgment of 2002 granting the applicant contact rights were still pending (see paragraphs 31-38 below), and thus asked the bailiff to avoid any type of harassment of Th.N. until those proceedings had come to a conclusion. 23.  On 30 November 2006 I.R. officially notified the applicant that he could come and visit Th.N. In his reply sent on 15 December 2006, also through the bailiff’s office, the applicant expressed his contentment that after so much time, I.R. had finally understood that her persistent attempts to obstruct his rights of contact were harmful for the children. 24.  The applicant further submitted that his endeavours to obtain information about his child’s performance at school had been unsuccessful. He alleged that the management of the private school attended by Th. N. had consistently denied him the right to visit his child at school, in view of the content of the judgment of 2002, which had allowed him contact rights that could only be exercised according to the schedule specified therein. 25.  The applicant complained to the Prime Minister about the alleged infringement of his parental rights by the school on 11 March 2004 (the complaints being subsequently remitted to the prosecutor’s office for further investigation) and to the School Inspectorate on 7 April 2004. The applicant has not provided any further details in this regard. 26.  The applicant lodged a criminal complaint against I.R., accusing her of having not complied with the provisions of a final enforceable judgment. On 10 September 2003 the applicant was informed that on 27 May 2003 the prosecutor had decided to close the investigation, in so far as the impugned acts did not attract criminal liability, and had imposed on I.R. an administrative fine of 5,000,000 Romanian lei ((ROL) – approximately 130 euros (EUR)). 27.  On 16 September 2003 the applicant lodged a second criminal complaint, with similar claims. Several persons were questioned, the prosecutor finally deciding on 30 June 2004 not to pursue the criminal investigation, since it appeared from the case file that it was not the mother’s fault, but, rather, the child’s unwillingness to see his father that had obstructed the enforcement of the disputed judgment. 28.  On 3 December 2003 the applicant lodged another similar complaint. The prosecutor decided on 17 March 2004 not to indict I.R., considering that the adduced evidence proved that Th.N. had not wanted to see his father, as he had been traumatised by his parents’ separation. That decision was upheld by the chief prosecutor on 30 June 2004. 29.  On 13 June 2004 the applicant lodged another criminal complaint, accusing the mother of endangering Th.N.’s moral and physical development, and of having slanderously accused him when alleging that he had given drugs to Th.N. while the child was visiting him over two weekends (see paragraph 30 below).
On 24 October 2005 the applicant lodged another criminal complaint against I.R., again accusing her of not allowing him to see his child, Th.N., thereby flouting the final judgment of 2002 which allowed him contact rights. The applicant also complained that, following the instructions given by I.R., the headmistress of the school attended by Th.N. had not allowed the applicant to enter the premises, and had refused to speak to him about his son’s activities at school, advising him to contact the school only in writing.
In her statement given before the prosecutor on 24 November 2006 I.R. declared that the reason why the applicant could not see Th.N. was because the latter did not wish to have contact with his father, and whenever he was informed that he was supposed to go see his father, “he panicked and was affected”. She also expressed her willingness to communicate with the applicant, so as to prevent any misunderstandings, which hurt both children.
The two above-mentioned criminal complaints were joined on 26 March 2009; a decision not to indict I.R. was given on 31 March 2009, the prosecutor holding that the adduced evidence revealed that I.R. had always shown good faith, initiating steps meant to facilitate contact between the applicant and Th.N., but that the latter had refused to meet his father because he felt threatened by him whilst in his presence.
The prosecutor also dismissed the complaints regarding the alleged slanderous accusation, considering that I.R. had not intended to defame the applicant, her acts being motivated solely by her wish to protect the best interests of her child Th.N., who at the time was found to have had toxic substances in his body, according to the medical examinations undergone by the child (see paragraph 30 below). 30.  On an unspecified date in June 2004 I.R. lodged a criminal complaint against the applicant. She submitted that after Th.N. had spent the weekend of 4 to 6 June 2004 with his father, he had come back home in a general state of confusion and tiredness. The medical examination performed the next day had revealed that Th.N. had been intoxicated with benzodiazepine.
On 20 June 2004, when she had picked up the child from his father, with whom Th.N. had spent the weekend, the child was again in a state of tiredness. The medical examination conducted that evening had shown no signs of benzodiazepine; however, an examination carried out the following morning had found nicotine in the child’s blood.
The investigating authorities required an expert report to be prepared by the Institute of Forensic Medicine. On 24 August 2004 I.R. went to the Institute and declared that she refused to allow Th.N. to be examined. The report was drawn up based on the existing medical documents, noting that the source and the context of both intoxications could not be established. As the minor had not been examined, no conclusion on any potential violent acts against him or on potential traces of medical treatment could be formulated.
The decision not to indict the applicant delivered by the prosecutor on 15 February 2006 was based on the fact that the adduced evidence had not revealed beyond doubt signs of serious negligence or omission imputable to the applicant in the exercise of his parental rights with respect to the incidents of June 2004. I.R. contested that decision before the courts. Her request was dismissed as out of time on 8 February 2007 by the Bucharest (Second District) Court of First Instance. 31.  On 7 November 2002 I.R. applied to the courts, requesting that she be granted contact rights with respect to C.I.; she also requested that the contact arrangements of the applicant concerning Th.N. be altered, so as to take place on one Saturday monthly, between 2 p.m. and 6 p.m. She submitted that this change was necessary in view of the “negative influence” that the applicant exerted on the child, who was afraid that he would be taken away from his mother and who, each time when he was required to leave with his father, had nightmares, states of anxiety and crying fits. 32.  On 3 March 2003, following a social worker’s visit to both of the parents’ homes, a report was drawn up, stating that:
“The mother is preoccupied with raising and educating Th.N.; the two have a good relationship, based on affection and communication. In the mother’s opinion, the father should be allowed to visit Th.N. at her home and in her presence, for fear that by leaving the child at the father’s house, he might have a bad influence on the child.
The mother declared that she had attempted to have personal contact with the minor C.I., but had been obstructed by the father, who had not allowed her to enter his home and who had created a bad image of her in the child’s mind.”
While acknowledging that C.I. enjoyed “optimal living conditions” at his father’s house, the social worker also noted that the two had a harmonious relationship, based on affection and mutual understanding. The applicant had declared that he wished that he could have a closer relationship with his other child, Th.N., but on account of the mother’s attitude, such a goal had become unattainable. C.I. had expressed his wish to spend more time with his brother, whom he truly loved.
The social worker also noted that the headmaster of the kindergarten attended by Th.N. had informed him that the applicant was interested in his son’s activities and that “he was sometimes allowed to talk to the child, but only in the presence of another person”.
The report’s conclusion pointed to the fact that the two brothers had a very warm relationship, and also that both parents showed an affectionate and caring attitude towards the two children, both expressing their full receptiveness to developing a closer relationship with the child who lived with the other parent. I.R.’s request for a psychological report assessing Th.N. was dismissed by the court on 6 March 2003 as unnecessary. 33.  I.R. subsequently submitted to the file two psychological opinions (aviz psihologic) issued by the psychologist E.I.V., who had seen and examined Th.N. starting in November 2001, immediately after had been separated from his brother. In his report of 2 April 2003, the psychologist stated:
“The minor (Th.N.) is an intelligent child, who tries to understand the situation, but the fear of being separated from his mother, as happened with his brother, causes new states of anxiety, crying fits, nightmares and nocturnal enuresis [bed-wetting].
His current state is also provoked by his father’s unscheduled visits, the child feeling threatened by a possible kidnapping, bearing in mind his brother’s experience. His relationship with his father has deteriorated also on account of the latter’s using insulting words in relation to I.R. and his aggressive behaviour towards the mother in the presence of the child.
The minor does not wish to be visited by his father, not even if his brother is also present, owing to the fact that his brother (C.I.) has attempted several times to persuade him that it is very nice to live with their father, because ‘at dad’s you don’t need to respect mummy’s rules: you don’t need to brush your teeth, you don’t need to learn, you don’t need to take piano lessons’; his brother also made him swear that when he reached the age of ten, he would move in with them.”
In a further report issued on 16 June 2003 the same psychologist noted the following:
“I have re-examined Th.N., seeing that new anxiety attacks, episodes of nocturnal enuresis and bruxism [teeth-gnashing] have appeared.
I have noted that these symptoms appeared following the child’s being visited by his father, who was accompanied by the brother (C.I.), and also by the bailiff and the father’s lawyer. The child has difficulties in relating the incident, as he fears ‘the gentleman who forces him to go to his dad’s’.
The symptoms presented are caused, on the one hand, by the fact that his relationship with his father has deteriorated and, on the other hand, by the brutality used in enforcing the [father’s] contact arrangements.
A pronounced state of anxiety on the child’s part when in the presence of his father, and an increasing change in their relationship are noted.” 34.  The applicant contested I.R.’s arguments, mainly stating that it was impossible for him to have exerted a bad influence on the child Th.N., since he was never really around him because he was not allowed to see him. Moreover, the few times when they had actually met had been in the presence of the bailiff or of the staff at the child’s school. His constant attempts to see Th.N. had been undermined by I.R.’s repeated changes of address and of the child’s kindergartens, and subsequently his schools, changes which had never been brought to his attention. 35.  On 22 May 2003 C.I. was heard by the court in camera, where he declared that he would like to be visited at his home only by his brother Th.N., and not by his mother. 36.  On 9 October 2003 the Bucharest (Second District) Court of First Instance partly allowed I.R.’s request to be allowed to visit C.I. every other weekend, from Friday at 6 p.m. until Sunday at 6 p.m., two weeks during the summer vacation and one week during the winter vacation. The court dismissed I.R.’s request for an alteration of the applicant’s contact arrangements with respect to Th.N. as ill-founded, holding that the circumstances which had been taken into account by the courts in the previous proceedings concerning contact had not changed. 37.  The judgment was appealed against by I.R., who reiterated her request that the applicant should be allowed to visit Th.N. one day per month only, on Saturdays, from 2 p.m. to 6 p.m.
On 25 March 2004 the Bucharest Court of Appeal dismissed I.R.’s appeal, holding that the visiting schedule she proposed would be unfair, considering that she herself was allowed to see the other child, C.I., for more than just a few hours per month. Besides, I.R. had not proven that the circumstances assessed by the courts in 2002, when the applicant’s contact rights had been established, had changed in any substantial way so as to warrant an alteration of those rights.
In a dissenting opinion, Judge M.R. stated that the contact arrangements vis-à-vis Th.N. needed to be changed, namely reduced. I.R. had produced sufficient evidence proving that Th.N. had been psychologically traumatised by the separation from his brother, and that he was convinced that this separation had been caused by his father, who also wanted to separate him from his mother; at the same time, in the process of enforcing his rights of contact with the bailiff’s aid, the father had threatened the child that he would take him with the help of the police if he did not voluntarily come with him; there was evidence in the file (testimonial and expert psychologist opinions) stating that Th.N. suffered from anxiety attacks, nightmares and nocturnal enuresis, on account of his fear of being separated from his mother, and owing to the perceived threat that he would be kidnapped. From that perspective, the judge considered that the child needed a more stable environment, and that he was developing well in the ambience created by his mother and his maternal grandparents. 38.  I.R. lodged an appeal on points of law. On 9 March 2009 it was struck out by the Bucharest Court of Appeal for failure to pursue the proceedings. 39.  On 22 December 2006 I.R. lodged a request seeking to be granted resident parent status with respect to her son C.I.
She submitted that on 20 December 2006 C.I. had left his father’s house and moved in with her, and implicitly with his brother Th.N. and with her new family (husband and their few months’ old twins). I.R. alleged that as a consequence of her tense relationship with the applicant, as evidenced by the several criminal complaints he had lodged against her, it had become very difficult for her to maintain contact with C.I., which also impeded the two children’s possibility of spending time together. In the autumn of 2006 her elder son had told her that he wanted to move in with her, to live with her and with his younger brother. His wish was allegedly motivated by his strong and affectionate relationship with his brother, but also by the fact that he felt neglected and badly treated at home, following his father’s moving in with his new girlfriend and her own eleven- year-old son. 40.  The applicant denied these assertions. He reiterated that it was I.R. who had obstructed the development of a normal relationship between the brothers by not allowing him to take Th.N. according to the schedule approved in 2002 by the courts.
The applicant also filed counterclaims, asking to be granted custody of Th.N., mainly contending that I.R. would not be able to take care of all the four children she had, in view of the fact that she had many other responsibilities (I.R. being a doctor and a professor as well as a mother and a wife). Moreover, it was important for the children to be raised by their real father, and not a “surrogate father”, namely I.R.’s new husband. 41.  On 5 February 2007 a report was drawn up by a social worker who had visited both parents’ homes and had interviewed the parties.
The report reiterated the fact that the intense, litigious past of the parties had decisively aggravated and strained the relationship between the parents, on the one hand, and between them and the children, on the other hand. Such incidents had also contributed to the fact that the two brothers had not been able to see each other as often as they wanted.
The social worker also interviewed C.I., who had stated that:
“he decided in desperation to escape from his father’s home by taxi, as he felt neglected, isolated, offended; he was not allowed to speak to his mother and to his brother Th.N., he was not allowed to have friends over, he did not have a good relationship with his father’s girlfriend or with her son, who had been living with them for the past three years; moreover, he (C.I.) was eager to meet his twin brothers and to spend more time with his maternal grandparents, whom he had not seen for the past five years.”
The report noted that at the time of the social worker’s visit, C.I. seemed very happy to stay at his mother’s house, together with all of his brothers, whom he loved, and with his mother’s husband, who was very open and fond of children. He expressed in categorical terms his intention to stay with his mother. He declared that his father had come three times to see him at school and made him believe that he would not oppose his wish to stay with his mother.
In conclusion, the report recommended that I.R. should be granted resident parent status with respect to C.I., as not only was this the child’s firm wish, but also, in the new family, the child had been greeted with much love, making him feel included and protected. 42.  On 8 March 2007 the two children, aged ten and fourteen at the time, were heard by the court, separately and in camera. The judge noted Th.N.’s statements, according to which:
“he lived with his mother and with her husband, whom he loved more than he loved his dad; his father came several times to take him;
- two or three years ago, he spent the weekend with his dad, and was not allowed to sleep with his brother C.I, but instead he slept with his dad; on the second day he was sick, and when he was taken to hospital by his mother, it became apparent that he had been intoxicated with nicotine; before that weekend, he had spent two other weekends with his dad, but nothing bad had happened to him;
- last year, on 6 December, he went to the police with his mum, to meet his dad; he said that he did not want to leave with his dad, even though the policeman insisted that he do so;
- many times, his father had talked badly about his mum, telling him to stop living with her;
- prior to his parents’ separation, he had witnessed his father strangling his mother.” C.I., for his part, declared that:
“- when his parents separated, he had decided to leave with his dad, as he had told him that mum had stolen money, and that mum did not care for him and would mistreat him; he witnessed some violent scenes when his father had forced mum to tell him where the money was;
- his brother had felt sick following a visit to their dad’s, and then his father had shown him a printed paper, telling him that it was proof that mum had given drugs to his brother;
- at his dad’s, he had felt that he was a burden; his father was not interested in him, did not help him with his homework, never asked anything about how he was getting along at school nobody hugged him while he lived with his dad;
- mum took care of him, helped him with his homework, bought him clothes, hugged and kissed him;
-he felt that he could not complain about all these things to anybody; he only saw his mum at school, and his dad was telling him bad things about her; he was afraid to complain to anybody for fear that his father would hear about it and beat him;
- his father had beaten him when he took some of his [father’s] own food; from that moment on, he had followed all the rules, for fear that he would otherwise be beaten;
- before he had left for his mother’s house, he had warned his dad that he would leave if he continued to behave in such a way, and his dad had told him that if he left, he should never come back;
- following his moving in with his mum, his dad had visited him at school every week, promising that he would change, blaming stress at work for his behaviour;
- if possible, he would like to stop seeing his dad.”
Several witnesses were also heard, mainly stating that the two brothers were well taken care of by their mother and that they were both happy together. 43.  On 5 April 2007 the Bucharest (Second District) Court of First Instance allowed I.R.’s request to be granted resident parent status with respect to C.I.; at the same time, the court allowed the applicant contact, to be exercised during every first and third weekend of the month, from 6 p.m. on Friday to 6 p.m. on Sunday, but also for two weeks during the summer holidays and one week during the winter holidays.
In so doing, the court held that it was in the best interests of the minor to stay with the parent he felt closer to:
“Even assuming that the minor C.I. had only imagined a complete scenario of abuse and neglect from his father, the fact that he reproduced the same scenario to several people, as transpired from the evidence, proved the existence of a serious breakdown in communication between him and his father.”
Taking into account the child’s own choice, but also his best interests, on the basis of the file, the court held that C.I. should stay with his mother, while also allowing the applicant contact on an identical schedule to that set out with respect to Th.N. The court further held that concurrent efforts on the part of both parents were essential for the improvement of the father’s relationship with his two children.
In dismissing the applicant’s request to be granted custody of Th.N., the court held:
“The disputes between the parties regarding the enforcement of the judgment allowing the father contact are not a good enough reason to justify a change with respect to the custody of Th.N.; the father has at his disposal several procedural means aimed at addressing the non-enforcement of a judgment, but he must also find the appropriate means to allow him to grow closer to the child, while the mother’s duty is to explain to the child the importance of staying in touch with his father.” 44.  The judgment was not appealed against and thus became final. 45.  On 16 March 2006 the applicant brought a civil action, seeking to have the final judgment enforced by the imposition of a fine in the event ofnon-compliance. 46.  On 26 September 2006 the court heard Th.N. in camera. Th.N. stated that he feared his father and that he did not wish to see him. He also declared that his father had never assaulted him. 47.  In its final judgment of 28 September 2006, the Bucharest (First District) Court of First Instance allowed the applicant’s claims.
The court considered that the profoundly conflict-ridden relationship between the parties, proven also by the numerous criminal complaints they had lodged against each other, had had serious negative repercussions on both children, who had been used by the parents as weapons against each other and in that respect, both parents were at fault. However, Th.N.’s bad impression of his father and his constant fear of him had been caused, at least in part, by I.R., as the child lived with her and she had strong moral authority over the child. The court thus held that I.R. should pay the State a fine of ROL 20 (approximately EUR 0.75) per day, for every day that she failed to comply with the contested judgment.
On 20 February 2007 the Bucharest County Court dismissed an appeal lodged by I.R. as inadmissible.


4.  The applicants were both born in 1952 and live in Gießen. 5.  The facts of the case, as submitted by the parties, may be summarised as follows. 6.  In September 1997 the applicants and their neighbour filed a request with the Gießen administrative authorities (“the administration”) seeking permission to cut down their neighbour’s tree which, according to an expert opinion obtained by the applicants, was causing damage to their house. 7.  On 19 November 1997 the administration rejected this request. On 9 March 1998, on the applicants’ administrative appeal, the administration granted permission to cut down the tree on the ground that they could not exclude the possibility that the damage to the house had been caused by the tree. 8.  Subsequently, the applicants’ neighbour refused to cut down the tree. 9.  In August 1998 the applicants requested the Gießen Regional Court to order their neighbour to cut down the tree. 10.  On 23 November 1998, following submissions by the defendant, who also presented an expert report, the court decided to obtain an expert opinion from a Dr Str. On 30 January 1999 Dr Str. submitted his report. 11.  On 3 May 1999, following a hearing, the Gießen Regional Court decided that the applicants’ neighbour had to cut down the tree or take other measures to prevent the earth from drying out. 12.  On 29 June 1999 the applicants’ neighbour appealed. She also submitted another expert opinion. 13.  On 28 July 1999 the Frankfurt/Main Court of Appeal, on provision of a security by the neighbour, stayed the proceedings for enforcement of the first-instance judgment. Subsequently, the case was transferred to a single judge. 14.  On 9 August 1999 the court scheduled a hearing for 12 November 1999. That day it decided to obtain an expert opinion. On 10 January 2000 it commissioned Professor K., an expert on construction matters. 15.  On 11 January 2000 the applicants lodged a subsequent appeal (Anschlussberufung). 16.  On 2 February 2000 the court amended its decision regarding the taking of evidence. Subsequently, it also requested a further advance. On 26 March 2000 the applicants paid the requisite advance. A few days later they questioned the expert’s qualification. On 26 April 2000 the court sent the files to the expert. 17.  On 25 August 2000, following comments made by the expert about the applicants’ objections against him, the court mandated Professor K. to proceed with the report. On 22 September 2000 Professor K. informed the court about the cost of his services (which amounted to about 25,000 euros (EUR)). 18.  In November 2000 the court requested the files from the expert and on 9 February 2001, on appeal by the defendant, it quashed a decision of the Gießen Regional Court concerning the enforcement proceedings. 19.  On 23 February 2001 the court proposed to the applicants that, in view of the exceptionally high costs claimed by Professor K., evidence should be taken by other means and proposed a Dr S., a landscaping expert. 20.  On 12 March 2001 the applicants opposed the proposal since, in their view, Professor K.’s report was indispensable. They also opposed the choice of Dr S. on the grounds that he had been proposed by the defendant, knew the defendant’s son and it could be assumed that he had been talking with him about the case. 21.  At the subsequent hearing on 20 April 2001 the applicants requested Dr S. to declare that he did not have any personal ties with the defendant or her son and had not dealt with the case before. On 29 June 2001, following this declaration by Dr S., the court commissioned Dr S. to provide an expert opinion. 22.  On 4 November 2001 the court asked the applicants to comment on a statement by Dr S. dated 6 August 2001. In December 2001 the expert requested a further advance. On 11 July 2002 he submitted his report. He came to the conclusion that the tree had not caused the damage to the house. 23.  On 29 August 2002, following the applicants’ submissions, the court asked Dr S. and the first-instance expert, on condition of the payment of a further advance, to explain and supplement their reports. In October 2002 it amended its decision; in November 2002 it requested a further advance. On 20 January 2003 it transferred the files to Dr S. 24.  In April 2003 the court requested a further advance of EUR 500 from both parties. On 1 August 2003, at the request of the applicants, it further amended the order regarding the taking of evidence. On 29 August 2003 the defendant paid the advance. The court then requested the expert to continue with his report. 25.  In June 2004 Dr S. submitted his supplementary report. The court then transferred the files to the parties for further submissions. 26.  On 23 June 2004 the applicants requested the court to transfer the case from the single judge to a bench. 27.  On 2 September 2004 the court scheduled a hearing for 6 October 2004. It later had to be postponed to 3 November 2004 owing to the absence of the parties’ legal counsels. At the hearing, the court (again composed of three judges) established that a report by a construction expert was necessary in order to reach a decision. It also encouraged the parties to reach a friendly settlement in view of the high costs claimed by Professor K. None of the experts were summoned. 28.  On 22 December 2004 the court decided that, in view of the additional submissions, further evidence should be obtained by Dr S. as regards the position of the roots of the tree. It also requested an advance of EUR 2,000. 29.  In February 2005 the applicants asked the court to amend this decision. This however was rejected in March 2005 and again later on a renewed request. In April 2005 the court confirmed that the applicants had already paid the advance (requested again in March) on 5 January 2005. 30.  On 19 October 2005 a local inspection took place. 31.  By a letter dated 21 January 2006 the applicants lodged a constitutional complaint on account of the length of the proceedings. On 9 February 2006 the Federal Constitutional Court refused to accept the constitutional complaint for adjudication. It found that there was no indication of a violation of the applicants’ rights. 32.  On 20 March 2006 the Court of Appeal requested another advance of EUR 28,500. In June 2006 it again refused to amend its decision regarding the taking of evidence; also in June 2006 the applicants paid the advance. 33.  On 10 October 2006 the expert informed the parties that the local inspection (which required free access to the applicants’ cellar) should take place on 9 November 2006. At the applicants’ request, it was postponed to 22 January 2007. 34.  On 20 February 2007 the expert submitted an interim report; on 12 July 2007 he submitted his final report. 35.  On 14 September 2007 the court scheduled the hearing. On 19 December 2007 the Frankfurt/Main Court of Appeal ordered the neighbour to cut down the tree.


10.  The applicant was born in 1923 and lives in Skopje. He worked as a pilot in the Yugoslav Army until he retired in 1968. 11.  In former Yugoslavia, the citizens used to pay a tax for housing. On the basis of the accumulated funds the State constructed “socially owned” apartments which were then rented to individuals at legally fixed rates. 12.  The Yugoslav Army was the single army on the territory of the former Yugoslavia governed by laws which were applicable throughout former Yugoslavia. The applicant, as an officer of the Yugoslav Army, paid monthly contributions from his salary to the Yugoslav Army for the construction of army apartments. All army servicemen were entitled to live in army apartments as tenants. 13.  On 28 August 1968 the applicant ceased to be an active officer of the Yugoslav Army under an early retirement scheme. At that time, he lived in Belgrade, as a tenant in an apartment which belonged to the army. On an unspecified date the applicant, having found a job in Skopje, sought to obtain the tenancy of an army apartment there. In December 1979, under an agreement between the Yugoslav Army and the Macedonian Council of Ministers, the Socialist Republic of Macedonia (at that time a member of the Yugoslav Federation) obtained the possession of the applicant’s army apartment in Belgrade in exchange for an apartment in Skopje, which remained the property of the Socialist Republic of Macedonia but was to be used by the Yugoslav Army. In July 1980 the applicant moved into the apartment in Skopje. 14.  On 29 December 1990 the Federal Assembly of the Socialist Federal Republic of Yugoslavia enacted a Law on Housing of the Army Servicemen (Закон за станбено обезбедување во ЈНА) (the “Z.S.О.J.N.A.”), according to which army servicemen, current and retired, could purchase apartments in which they lived with a price adjustment for the amount of the paid contributions for the construction of army apartments and for development of the construction land. Section 26 of that law provides that the same purchase conditions apply to apartments which do not belong to the army, as it was in the case of the applicant. According to regulations issued by the Yugoslav Federal Ministry, the price difference was to be paid by the federal army (see paragraphs 43-46 below). 15.  Following the fall of Yugoslavia and a referendum held on 8 September 1991, the former Yugoslav Republic of Macedonia declared independence. On 17 November 1991 it adopted a Constitution (Устав на РМ) and the Law on the Implementation of the Constitution (Уставен Закон за спроведување на Уставот). According to the Constitution the laws from former Yugoslavia remain in force, except for the laws regulating the organisation and competence of the former Yugoslav federal organs. On 21 February 1992 the Macedonian President and the General of the Yugoslav Army concluded an agreement for the withdrawal of the Yugoslav Army from Macedonian territory. 16.  On 28 February 1992 the Macedonian Government concluded an Agreement for Settlement of Claims and Obligations in Respect of Real Property (Спогодба за правата и обврските во врска со примопредажбата на недвижностите на територија на Република Македонија) (“the S.P.O.V.P.N.T.R.M.”) with the Federal Yugoslav Ministry of Defence. According to this agreement the Macedonian Ministry of Defence took over all the obligations of the Yugoslav Army in respect of army apartments, including the obligation to sell these apartments with a price reduction. The Macedonian Government in 1992 and 1994 enacted regulations implementing this agreement. In 1992 the Macedonian Government enacted Regulations on the Terms of Purchase of the Apartments Obtained by Succession from the Yugoslav Army (Уредба за продажба на државниот стамбен фонд наследен од ЈНА) (“U.P.D.S.F.N.J.A.”), according to which present and former army servicemen living in apartments owned by the Macedonian Ministry of Defence, could purchase them under the Z.S.О.J.N.A 17.  From the Ministry of Defence’s decision of 12 June 1992 it appears that the Ministry exchanged the title of its apartments which were inhabited by civilians with the title of the apartments owned by the Housing Fund (“ПУИГ”) which were inhabited by servicemen. Thereby, the servicemen were able to exercise the right under the Z.S.O.J.N.A. to purchase the apartments at a reduced price. However, this exchange was limited and concerned only six apartments owned by the Housing Fund and twenty owned by the Ministry. No details were provided as to the criteria concerning the exchange. 18.  In 1993 an amended version of the 1990 Law on the Sale of Socially Owned Apartments (Закон за продажба на станови во општествена сопственост) (“the Z.P.S.O.S.”) was promulgated in the Official Gazette. Under the law their tenants were entitled to purchase them on credit and at a beneficial price. Unlike the Z.S.О.J.N.A., the law did not provide for a price adjustment for the amount of the contributions made towards the construction of “socially owned” apartments and the development of the construction land, despite the fact that the tenants had also paid them. 19.  On 26 June 1996 the Constitutional Court abrogated the Z.S.O.J.N.A. without retroactive effect and the respective Government’s Regulations on the ground that they had been contrary to the 1991 Constitution. In particular, the court stated that: (a) the Yugoslav Army, its “housing fund” and the “social ownership” no longer existed; (b) the 1991 Constitution had abolished all the privileges enjoyed by army servicemen; and (c) the Z.S.O.J.N.A. had created an unequal treatment in comparison to the citizens who were entitled to purchase their apartments under the Z.P.S.O.S. The S.P.O.V.P.N.T.R.M. was not mentioned in the Constitutional Court’s decision. 20.  Between 1992 and 1994, the applicant requested the Macedonian Ministry of Defence to purchase the apartment in Skopje where he had been living since 1980 as a tenant of the Yugoslav Army in accordance with the Z.S.О.J.N.A. and the U.P.D.S.F.N.J.A. The Ministry of Defence informed him, and seven other servicemen of the former Yugoslav Army, that the examination of their requests had been postponed due to some formalities. 21.  On 20 October 1993 the applicant and fifteen other persons asked the Constitutional Court to examine the compatibility of the Z.P.S.O.S. and the relevant regulations issued by the Ministry of Defence with the Z.S.O.J.N.A. On 29 December 1993 this was refused by the Constitutional Court. 22.  On 6 February 1995 the applicant submitted another request to purchase the apartment to the President of the Republic who transmitted it to the Ministry of Defence. 23.  On 22 March 1995 the Ministry of Defence informed the applicant that his request to purchase the apartment had been dismissed on the ground that the U.P.D.S.F.N.J.A. did not apply to apartments other than those which belonged to the Yugoslav Army. In particular, the Ministry stressed that Section 2 § 2 of the 1992 Regulation on the Sale of Apartments for which the Republic has Responsibilities and Rights (Одлука за продажба на становите на кои права, должности и одговорности во поглед на располагањето има Републиката) (“O.P.S.P.D.O.R”) provided that the U.P.D.S.F.N.J.A. did not apply to apartments for official use of the Government. The Ministry argued that on 21 September 1994 the Government had taken a similar position in respect of this issue. Therefore, the applicant would have had the right to purchase the apartment under the U.P.D.S.F.N.J.A. only if it had concerned an apartment owned by the said Ministry. 24.  On 16 February 1995 the applicant instituted proceedings before the Skopje I Municipal Court (Општински суд Скопје I) against the Ministry of Defence, requesting that the apartment be sold to him under an adjusted price in accordance with the Z.S.О.J.N.A. He also invoked Articles 4 and 5 of the Law on the Implementation of the Constitution. 25.  On 25 April 1995 the court granted the applicant’s request. The court stated, inter alia, that the applicant, as an army officer, had the right to purchase the apartment under an adjusted price. In particular, the purchase price should be reduced by the revalorised amount of the monthly contributions which the applicant had paid to the Federal Ministry of Defence for the construction of apartments and for development of construction land. The Municipal Court found that the Macedonian Ministry of Defence was under an obligation to pay the price difference for the apartment. 26.  The Macedonian Ministry of Defence appealed against this decision on grounds that in accordance with a Government Decision the Z.S.О.J.N.A. only applied to apartments owned by the Macedonian Army. 27.  On 1 February 1996 the Skopje Appellate Court (Окружен суд Скопје) upheld the decision of the lower court on the ground that the applicant, as a former officer of the Yugoslav Army, had paid contributions for the construction of army apartments and, therefore, was entitled to purchase an apartment under an adjusted price in accordance with the Z.S.О.J.N.A. The court held, inter alia, that the lower court had reasoned correctly when it had connected the benefit of purchasing an apartment under an adjusted price to the status of the applicant as a former army officer, who had been paying contributions, and not to the identity of the owner of the said apartment. 28.  On 17 April 1996 the applicant and the Government concluded a purchase contract for the apartment on the basis of the Municipal and Appellate Courts’ judgments. The applicant thus purchased the apartment with a price reduced by the amount of contributions he had paid to the former Yugoslav Army. On 15 May 1996 the Skopje I Municipal Court authorised the contract. 29.  From the copy of one document issued by the Public Enterprise for Administering State Property (Јавно претпријатие за стопанисување со стамбен и деловен простор на Република Македонија), it may be deduced that the applicant paid for the apartment in 1996 at the latest. It is not clear whether later the Ministry of Defence reimbursed the Housing Fund the price difference for the apartment. 30.  In the meantime, the Ministry of Defence filed an appeal on points of law (ревизија) with the Supreme Court (Врховен суд на РМ) against the judgment of the Appellate Court of 1 February 1996. 31.  Upon the appeal on 18 December 1997 the Supreme Court quashed the lower court’s judgment and dismissed the applicant’s request to purchase the apartment for a reduced price. 32.  The Supreme Court noted that in accordance with Article 5 § 1 of the Constitutional Law on the Implementation of the Constitution of the former Yugoslav Republic of Macedonia the federal laws of former Yugoslavia remained in force as Macedonian laws provided that they were harmonised with the Constitution. The powers which were previously exercised by the federal organs were allocated to the bodies of the former Yugoslav Republic of Macedonia. The Z.S.O.J.N.A. remained in force as Macedonian law. 33.  The Supreme Court found that under the Z.S.O.J.N.A. it was for the Yugoslav Army to make up for the price difference for the adjustment of the prices of the apartments which were not owned by the Yugoslav Army. However, on 17 November 1991 the former Yugoslav Republic of Macedonia enacted its Constitution and became an independent State. Since then there was no Yugoslav Army nor was its housing fund on the territory of the former Yugoslav Republic of Macedonia. Therefore, the applicant could not have the price for his apartment reduced as there was no Yugoslav Army to cover the price difference. 34.  The court did not mention at all the decision of the Constitutional Court and the S.P.O.V.P.N.T.R.M. Nor did it mention that the applicant had already purchased the apartment by contract, or that the Ministry of Defence had exchanged a number of apartments owned by the Housing Fund and inhabited by other servicemen. The applicant was served with the Supreme Court’s judgment on 4 March 1998. 35.  The parties have not indicated whether the applicant was formally registered as the owner of the apartment in the Land Registry (Државен завод за геодетски работи) after their purchase agreement had been authorised by the Municipal Court in 1996. From the documents it appears the applicant had already recorded his title over the apartment. In addition, the parties have not indicated whether the Government have taken any legal action to enforce the Supreme Court’s judgment of 18 December 1997, for example by bringing proceedings for the rescission of the 1996 purchase agreement (see paragraphs 60-65 below). There is no information that such proceedings have ever been instituted. 36.  The applicant still lives in the apartment in question.


6.  The applicant was born in 1961 and lives in the village of Tatariv, which forms part of Yaremche, a resort town in the Ivano-Frankivsk Region of Ukraine. 7.  The applicant owns a house and an adjacent plot of land in Tatariv. The village of Tatariv is situated in a mountainous region and because of its location holds the status of mountainous residential area. It is also known as a resort for “green tourism” in Carpathy region. It is situated on the banks of Prut river. 8.  On 10 February 2000 Tatariv Village Council (“Tatariv Council”), having considered four sites on which to construct a new cemetery, chose the land previously occupied by garages belonging to a company called Vorokhtya Lisokombinat (“the VL plot”) as it was not occupied, it was located in the village and the cemetery could be constructed at low cost. 9.  The VL plot is located near the applicant’s house (for further details see paragraphs 14 and 33 below), in which he was residing with his family at the time. Two rivers flow at a distance of 30 and 70 metres from the VL plot. Drinking water for Tatariv comes from wells fed by groundwater; there is no centralised water supply system and the wells are not protected. 10.  On 24 May 2000 the All-Ukrainian Bureau of Environmental Investigations informed the Chairman of Yaremche Town Council (“Yaremche Council”) that the construction of the cemetery on the VL plot might cause contamination of the river and the wells situated on adjacent plots of land by ptomaine carried by the groundwater flow. 11.  The cemetery was opened for use by the Yaremche Council in August 2000. It is being administered by the Yaremche Council. 12.  On 6 February 2001 the Yaremche Environmental Health Inspectorate (санітарно-епідеміологічна станція) concluded that the cemetery should not have been constructed on the VL plot in view of its proximity to residential buildings and the risk of contamination of the surrounding environment by ptomaine. 13.  On 20 August 2002 the Regional Environmental Health Inspectorate of the Ministry of Health refused to approve the construction plan. In particular, it stated that the cemetery should not be situated in the proposed area as its distance from private housing did not comply with the norms and standards of a health protection zone (санітарно-захисна зона). 14.  On 30 August 2002 and 20 January 2003 the Marzeyev Institute of Hygiene and Medical Ecology, part of the Academy of Medical Sciences, informed the applicant and Yaremche Council that another location would have to be found for the cemetery. It was of the view that constructing the cemetery on the VL plot would breach environmental health laws and regulations and would worsen the living conditions of the residents of adjacent houses. In particular, it would be located less than 300 metres from the nearest residential buildings, which are 38 metres away from the edge of the cemetery (which would not allow for the establishment of the necessary health protection zone). It could lead to contamination of the groundwater reservoir used by the residents of adjacent households for drinking water and of the nearby rivers with by-products of human decomposition. It further stated that a health protection zone was also intended to reduce psychological pressure on the residents of adjacent houses. 15.  The applicant alleges that from 2002 to the present moment he has been receiving treatment for hypertension and various cardio-related diseases. He supplied in this respect sick leave certificates and medical certificates from 2002 and 2006, relating to him and his wife. He has also provided the Court with death certificates for two of his neighbours Mr R.G. and Mr D.B., who also resided in the vicinity of the prohibited cemetery and died at the age of 68 and 43, respectively. 16.  On 17 September 2002 the Ivano-Frankivsk Regional Prosecutor’s Office informed the applicant that it could not intervene in respect of unauthorised burials taking place on the VL plot: the issue was in the competence of local authorities, including the Yaremche Council, which was responsible for management and maintenance of the cemetery. 17.  On 22 April 2003 the Executive Board of Yaremche Council informed the Regional State Administration that Tatariv Council was considering resettling the applicant. He had twice been invited to discuss a proposal for resettlement of his family to another part of the village but no response had been received. 18.  On 5 May 2003 the Regional Urban Development and Architecture Department (“the Urban Development Department”) informed Yaremche and Tatariv Councils that the area near the applicant’s house was not suitable for construction of the cemetery as it did not respect a 300-metre wide health protection zone that would protect the residential buildings and a 50-metre wide water protection zone to protect the Prutets river. 19.  On 18 May 2003 the Tatariv Council resolved inter alia that the relevant local authorities were prepared to consider the purchase of a house or apartment for the applicant, or to pay him compensation if he refused to reside in the cemetery’s vicinity. 20.  On 21 April 2004 the issue of the site of the cemetery was examined by officials from the Urban Development Department, the Municipal Housing Department, the environmental health inspectorate and the Land Management Department. They recommended to the Chairman of Tatariv Council that another plot on the outskirts of the village of “Ventarivka” be used as a cemetery. 21.  On 22 June 2005 the Regional State Administration informed the applicant that the only way to resolve the issue was to resettle him. They asked him to agree to such a resettlement. They also confirmed that Yaremche Council was willing either to buy a house for the applicant or to provide him with an equivalent plot of land and the funds necessary to construct another house 22.  On 18 July 2005 the Chairman of Yaremche Council invited the applicant to inform the authorities whether his family was willing to resettle and, if so, on what conditions. 23.  In reply, the applicant sought more information on the proposal, such as, details of the specific land plot, house and facilities to be provided. 24.  By letter of 27 July 2005 the Chairman of Yaremche Council, in reply to the applicant’s request for specific proposals, invited the applicant to discuss the proposal in person with a view to a possible compromise. 25.  On 15 August 2005 the Chairman of Tatariv Council asked the Ukrainian State Urban Planning Institute (Дніпромісто – “the Institute”) to develop proposals for the site of a cemetery in the village. 26.  On 21 December 2005 the Institute informed the applicant that it was not within its competence to decide matters such as the question of where to situate the cemetery. It also mentioned that the local development plan for Tatariv proposed a plot in the Chertizh area for the cemetery. However, this was subject to approval by the local council and environmental health inspectorate. It also informed the applicant that no letter of 15 August 2005 with proposals to investigate possible site of the cemetery (see paragraph 25 above) had been received from Tatariv Council. 27.  By letter of 6 March 2006 addressed to the applicant and the Chairman of Tatariv Council, the Urban Development Department stated that it had repeatedly proposed to Tatariv Council that it use an area called Venterivka for the site of the cemetery. However, the council had not taken up that suggestion for unspecified reasons. It also informed the applicant that it was within Tatariv Council’s competence to decide on the allocation of a plot of land for a cemetery. 28.  On several occasions between August 2006 and June 2008 the applicant and members of his family, who resided together, asked Tatariv Council to grant each of them a plot of land on which to construct a house because they felt that living in the cemetery’s vicinity was intolerable. Tatariv Council rejected the requests because of a lack of available plots of land. 29.  According to the results of examinations of drinking water from the applicant’s well conducted by the Yaremche Environmental Health Inspectorate dated 21 August 2008 and 7 July 2009, the toxicological, chemical and organoleptic indices of the water complied with national standards (no E. coli index examination had been made). A conclusion was reached that water could be used for household needs. 30.  On 23 August 2008 and 6 July 2009 the Yaremche Environmental Health Inspectorate carried out a bacteriological analysis of the water from the same well. It established, contrary to the results of the examinations held on 21 August 2008 and 7 July 2009 (see paragraph 29 above) that the E. coli bacteria index in the water gave a reading of 2,380, whereas the normal reading was 10 (see paragraph 72 below), and concluded that the water could not be used for household needs. It also recommended disinfecting the water supply. The cause of water pollution was not established and would require an additional expert report. 31.  On 14 December 2009 in response to a request from the Government, the Yaremche Environmental Health Inspectorate concluded that the reading obtained from the bacteriological analysis which had indicated water contamination did not have any connection to the location of the cemetery, but could also have been caused by other sources. 32.  On 15 December 2009 the Regional Environmental Health Inspectorate informed the applicant that the reasons for the bacterial contamination of the water supply could be established on the basis of a hydrogeological assessment as to whether there were any connections between the drinking water reservoirs and possible sources of contamination. It further stated that according to an analysis of water taken from different parts of the village, the E. coli index exceeded the allowed reading established by law, which provided that drinking water should not contain any index of E. coli or be less than 1 in that index per 100 cm3 (see paragraph 72 in relation to the domestic drinking water standards), nevertheless the E. coli index ranged from 23 to 2,380. 33.  The applicant’s house and well are some 38 metres from the nearest boundary of the cemetery. 34.  By letters of 10, 15 and 16 December 2009 from the Tarariv Council, Yaremche Executive Committee and the Ivano-Frankivsk Regional State Administration, the authorities informed the Government’s agent that the applicant had failed to manifest any interest in being resettled. 35.  On 10 August 2000 the Verkhovyna Court, following the applicant’s claim in proceedings against the Tatariv Council, held that the Council’s decision to situate the cemetery on the VL plot had been unlawful. 36.  At the end of August 2000 residents of Tatariv carried out the first burial at the cemetery. 37.  On 1 December 2000 the Yaremche Court, in another set of new proceedings, found that Tatariv Council had failed to follow the proper procedure for the allocation of a plot of land for a cemetery, namely obtaining an environmental health assessment, and ordered it to prohibit burials on the VL plot. 38.  On 24 December 2000 the residents of Tatariv were informed of the court’s decision to stop the use of the VL plot as a cemetery. Nevertheless, burials continued at the site. 39.  On 29 December 2000 Tatariv Council prohibited burials on the VL plot. On 2 February 2001 the State Bailiffs’ Service terminated enforcement proceedings in the case, considering that the judgment had been fully complied with by the Tatariv Council. 40.  On 2 March 2001 Tatariv Council again decided that the VL plot could be used for the new village cemetery. On 26 March 2001 the applicant lodged a new claim against that decision with the Yaremche Court. 41.  In the meantime, on 22 August 2001 the Regional Environmental Health Inspectorate informed the relevant judge of the Yaremche Court, which assumed jurisdiction over the claims lodged on 26 March 2001 (see paragraph 40 above), that the site of the cemetery did not comply with national environmental health laws and regulations on the planning and construction of urban areas. In particular, the location did not comply with the requirement of a health protection zone between the cemetery and the nearest residential buildings. 42. On 16 October 2001 the Yaremche Court declared Tatariv Council’s decision of 2 March 2001 unlawful. On 17 April 2002 the Supreme Court upheld that judgment. 43.  On 25 December 2001 Tatariv Council cancelled its decision of 2 March 2001 in pursuance of the judgment of 16 October 2001. 44.  On 3 July 2003 Tatariv Council approved a new development plan for the village. The plan again authorised the use of the VL plot as a cemetery. 45.  On 22 July 2003 the applicant again instituted proceedings against Tatariv Council, seeking to have the approval of the new development plan for the village, insofar as it concerned the location of the cemetery, declared unlawful. He also sought compensation for non-pecuniary damage, court fees and legal expenses. 46.  On 22 August 2003 the Verkhovyna Court ordered Tatariv Council to inform the residents of the village that burials at the unauthorised cemetery near the applicant’s house were prohibited. 47.  By that time, up to seventy burials had been carried out on the VL plot. The distance between the applicant’s house and some of the graves was less than 120 metres. 48.  The Chairman of Tatariv Council argued before the court that there was no other suitable area for a cemetery in the village. She further submitted that the applicant’s allegation of possible contamination of the water supply was unfounded, as the groundwater flowed away from his property. 49.  On 26 December 2003 the Verkhovyna Court allowed the applicant’s claims and held that the new construction plan was unlawful as regards the location of the cemetery. It found that the VL plot was not suitable for use as a cemetery. In particular, constructing the cemetery on the VL plot had breached the environmental health laws and regulations requiring the establishment of: (a) a health protection zone 300 metres wide separating residential areas from a risk factor; and (b) a water protection zone 50 metres wide separating water supply sources from a risk factor. It observed that those distances could not be reduced. It ordered Tatariv Council to close the cemetery and to pay the applicant 25,000 hryvnias (UAH)[1] in compensation for non-pecuniary damage and UAH 609.45[2] for costs and expenses. 50.  On 28 May 2004 the Ivano-Frankivsk Regional Court of Appeal (“Court of Appeal”) upheld the judgment of 26 December 2003 in part. In particular, it decided that no award of non-pecuniary damage should be made to the applicant, and it reduced the award for costs and expenses to UAH 151[3]. 51.  On 9 October 2006 the Supreme Court upheld the ruling of 28 May 2004. 52.  On 18 June 2004 the Verkhovyna Court issued two writs of execution ordering Tatariv Council to adopt a decision declaring the new development plan unlawful and to close the cemetery. 53.  On 7 July 2004 the State Bailiffs’ Service instituted enforcement proceedings in the case. 54.  Between July 2004 and February 2005 the State Bailiffs’ Service imposed fines on Tatariv Council several times for its refusal to comply with the judgment of 26 December 2003. 55.  On 3 March 2005 the Bailiffs terminated the enforcement proceedings, stating that it had been impossible to enforce the decision without the involvement of Tatariv Council, whose members had failed to adopt a decision in pursuance of the judgment of 26 December 2003. 56.  In March 2005 the applicant requested the Verkhovyna Court to change the terms of the enforcement of the judgment of 26 December 2003. In particular, he sought to have the Chairman of Tatariv Council ordered to execute the judgment. 57.  On 17 October 2005 the Verkhovyna Court rejected the applicant’s request. It held that the Chairman had acted only as a representative of Tatariv Council, the respondent in the case. The Chairman had not been involved as a party to the proceedings. On 6 December 2005 the Court of Appeal upheld the ruling of 17 October 2005. 58.  In August 2005 the applicant challenged the alleged omissions and inactivity of the Chairman of Tatariv Council as regards the enforcement of the judgment of 26 December 2003 before the Verkhovyna Court. 59.  On 8 November 2005 the Verkhovyna Court found no fault on the part of the Chairman and rejected the applicant’s claim. On 12 January 2006 the Court of Appeal upheld that decision. 60.  On 16 August 2006 Tatariv Council again refused to declare the new development plan unlawful and to close the cemetery. 61.  On 28 August 2006 the State Bailiffs’ Service informed the applicant that the enforcement proceedings were not subject to renewal. 62.  The applicant also unsuccessfully sought to institute criminal proceedings against the Chairman of Tatariv Council for her alleged failure to enforce the judgment of 26 December 2003. 63.  On 7 May 2002 the Yaremche Court, acting upon the applicant’s request, refused to institute criminal proceedings against a private individual, K.M., for using the VL plot for a burial. On 16 July 2002 and 21 January 2003 the Court of Appeal and the Supreme Court, respectively, upheld this decision. 64.  On 3 October 2002 the Yaremche Court in two separate judgments rejected as unsubstantiated damages claims brought by the applicant and his neighbour, D.B., against K.M. and F.G. (private individuals) concerning the unlawful use of the land near their houses for burial purposes. It found no breach of applicant’s rights by the respondents. 65.  The judgments were upheld on 24 December 2002 (in two separate rulings) by the Court of Appeal and subsequently on 15 September 2005 and 15 February 2006 by the Supreme Court.


4.  The applicant was born in 1973 and is currently serving a prison sentence in Kırşehir. 5.  The facts of the case as presented by the applicant and the Government are based on a number of documents drawn up in the course of the domestic proceedings. The following information appears from the parties’ submissions as well as from the documents submitted by them. 6.  On 17 February 1994 a warrant was issued for the applicant’s arrest on suspicion of membership of an illegal organisation, namely the Revolutionary People’s Liberation Party/Front-Revolutionary Left (Devrimci Halkın Kurtuluşu Partisi/Cephe-Dev Sol; THKP/C-Dev Sol). He was arrested on 14 July 1994 and taken into police custody. 7.  On 17 July 1994 a police chief at the Istanbul Security Headquarters drafted a report which stated that the applicant had refused to respond to the questions put to him. This report was forwarded to the prosecutor’s office at the Istanbul State Security Court. In another report prepared by the police the same day, the applicant was quoted as having stated that he would only talk to the prosecutor, but that in any event the allegations against him were baseless. 8.  According to a medical report drafted on 17 July 1994 by the Istanbul Forensic Medicine Institute, the applicant had ecchymosed areas, measuring 4x2 cm and 4x7 cm, both under his armpits and on his shoulders. Another ecchymosed area, measuring 2x2 cm, was also observed on his right shoulder. The report stated that the injuries were of a nature which would prevent the applicant from working for a period of three days. 9.  The same day the applicant was brought before the prosecutor at the Istanbul State Security Court, who questioned him and recorded his statement. In this statement the applicant denied having had any involvement in any illegal organisation. He also informed the prosecutor that he had refused to sign a statement prepared by the police in which the name Dev-Sol was mentioned. The applicant was brought before the duty judge, who questioned him further and ordered his pre-trial detention. Before the judge the applicant repeated his denial of any involvement with any illegal organisation. 10.  On 27 July 1994 the public prosecutor at the Ankara State Security Court filed an indictment, accusing the applicant of membership of the above-mentioned illegal organisation. The prosecutor requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act. The prosecutor stated that the documents in the case files in respect of a number of persons who were being tried for membership of the same organisation proved that the applicant had also been a member. The prosecutor further alleged that a handwritten autobiography belonging to the applicant, which had been submitted to the illegal organisation, proved that he was one of its members. 11.  On 1 August 1994 the criminal proceedings against the applicant were joined to the ongoing trial of twenty-four persons accused of offences related to the illegal organisation. Subsequently, the trial was conducted by the Ankara State Security Court’s First Chamber (hereafter “the trial court”). 12.  On 19 January 1995 the applicant submitted a letter to the trial court, stating that “pressure” had been exerted on him by the police to force him to accept the accusations. In his letter the applicant denied having given the organisation his autobiography, and maintained that he did not know who had given evidence against him. 13.  On 21 February 1995 the applicant submitted another request to the trial court, in which he asked to be released. In his request the applicant stated that he was not the author of the handwritten autobiography. In that autobiography there was a reference to the son of an uncle; in fact he had no uncles. He maintained that a forensic examination of the autobiography would establish that he was not the author. The applicant also maintained that he did not know the person who had accused him of membership of the organisation. In any event, that person had later retracted his statement. The applicant also alleged that he had been subjected to torture while in police custody. In support of his allegation he referred to the above-mentioned medical report of 17 July 1994. 14.  A total of forty-six hearings were held in the course of the applicant’s trial. A number of hearings had to be postponed on account of some of the defendants’ failure to comply with the summonses. A number of other hearings were postponed to enable the trial court to obtain important documents and reports. At each of these hearings the trial court decided to extend the applicant’s remand in custody. 15.  On 9 December 1997 the trial court, which had a military judge on its bench, convicted the applicant as charged and sentenced him to fifteen years’ imprisonment in accordance with Article 168 § 2 of the Criminal Code. The prison sentence was increased by half, pursuant to section 5 of the Prevention of Terrorism Act. Consequently, the applicant was sentenced to twenty-two years and six months’ imprisonment. One of the applicants’ co-accused, a certain Mr E.K., was also convicted of the same offences and sentenced to ten years’ imprisonment. Mr E.K.’s prison sentence was also increased by half and consequently he was sentenced to a total of fifteen years’ imprisonment. 16.  In finding the applicant guilty of membership of the illegal organisation, the trial court observed that the applicant’s autobiography had been found in the organisation’s possession. It also established that the applicant had joined the organisation with the assistance of two of the co-accused but had escaped from it with the help of another person. 17.  The court’s written judgment was 55 pages long. 18.  The applicant appealed on 15 December 1997. On 27 April 1999 the Court of Cassation upheld the applicant’s conviction. The applicant was not represented by a lawyer before the Court of Cassation. 19.  The decision of the Court of Cassation was deposited with the registry of the Ankara State Security Court on 20 May 1999. A committal order was prepared on 24 March 2000, showing the time which the applicant was to spend in prison. The committal order was notified to the applicant on 30 March 2000 by the prison administration.