Preliminary objection partially dismissed (non-exhaustion of domestic remedies);Preliminary objection partially joined to merits (non-exhaustion of domestic remedies);Violation of Art. 2 (inadequate investigation);Violation of Art. 2 (deaths of the applicants' relatives);Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicants are relatives . They are :

CARDINAL ) PERSON Estamirov , born in DATE ;

CARDINAL ) PERSON ( also spelled PERSON ) PERSON ( maiden name PERSON ) , born in DATE , the first applicant'sister ;

CARDINAL ) PERSON ( maiden name PERSON ) , born in DATE , the first applicant'sister ;

CARDINAL ) PERSON , born in DATE , their mother ;

CARDINAL ) PERSON Estamirov , born in DATE , the first applicant 's nephew ;

CARDINAL ) Khabirat PERSON ( maiden name PERSON ) , the first applicant 's sister , born in DATE ;

CARDINAL ) PERSON ( maiden name PERSON ) , the first applicant 's sister , born in DATE .

Until DATE the applicants were residents of GPE , GPE . The first , the fourth and the fifth applicants now live in GPE , where they were granted political asylum . The other applicants live in PERSON and in GPE .

The facts surrounding the deaths of the applicants ' relatives and the ensuing investigation were partially disputed . In view of this the ORG requested the ORG to produce copies of the entire investigation file opened in relation to the applicants ' relatives ' deaths .

The submissions of the parties on the facts concerning the circumstances of the applicants ' relatives ' deaths and the ensuing investigations are set out in Sections CARDINAL and CARDINAL below . A description of the materials submitted to ORG is contained in Part B.

The applicants ' family lived in LOC of Grozny at CARDINAL FAC . The household consisted of QUANTITY houses , built by the family over a period of DATE , since DATE , and united by a common courtyard . During the hostilities in DATE CARDINAL house was burnt and the second one was hit by a shell . After DATE the applicants ' family restored CARDINAL house . They attempted to obtain compensation for the lost property , but failed to comply with the procedural requirements .

In DATE the first applicant , his mother and his DATE nephew ( the fourth and fifth applicants ) left PERSON for Ingushetia because of the renewed hostilities . A part of the family remained in PERSON to look after the house and property . They were the first applicant 's father , PERSON ( born in DATE ) , the first applicant 's brother PERSON ( also spelled as GPE ) Estamirov ( born in DATE ) , his pregnant wife PERSON ( born in DATE ) and their son PERSON ( born in DATE ) , and PERSON cousin PERSON ( born in DATE ) . The first applicant submits that they tried to convince their father , who was partly disabled , to move to ORG , but he decided to remain in the house , and CARDINAL of his sons with his family stayed to look after him .

NORP Some time in DATE the first applicant 's aunt went to PERSON . She met another relative , the first applicant 's uncle PERSON , who told her that the family members who remained in PERSON had been killed by the NORP soldiers on DATE . PERSON , who had suffered a nervous breakdown , told her that he went to the house on CARDINAL DATE in the afternoon and found the PERSON family members dead . The bodies of the first applicant 's father and brother were in the courtyard , his uncle 's body in the doorway of the house , partly burned . The bodies of the first applicant 's sister - in - law , who was at DATE of pregnancy , and her DATE son were in the corner of the courtyard . All bodies had gunshot wounds . The woman 's ring and earrings were gone . In the courtyard he found the first applicant 's father 's purse lying empty on the ground . Many items from the house were missing . Their car in the garage and the cowshed with CARDINAL calves inside were burned . On DATE PERSON buried the bodies on a patch of land by the house , having wrapped them into pieces of cloth .

The first applicant 's aunt returned to ORG and told the other family members about the deaths . On DATE the fourth applicant sent a request to ORG to initiate criminal proceedings into the killings of CARDINAL members of her family , looting and destruction of their property on DATE by the NORP troops during a “ mopping up ” operation in PERSON .

On DATE the first and the second applicants travelled to ORG . There they sought permission to exhume the bodies and to bury them at the PERSON cemetery . At first the district military commander refused the permission , because the cemetery could have been mined . But then the head of the city administration gave the permission and ordered that the investigators and the police attend the exhumation .

On DATE the applicants went to the Oktyabrskiy temporary district office of the interior ( VOVD ) of PERSON and produced the permission for exhumation . Several policemen accompanied them to CARDINAL FAC , one of them had a camera .

Once the bodies were exhumed , the cloths enveloping the bodies were lifted only from the faces to take photographs . No pathologist was present , and no forensic examination took place . The bodies were then brought to the PERSON cemetery and buried . A certificate was issued to the first applicant by the investigator of the Oktyabrskiy VOVD Major PERSON to confirm that on DATE the exhumed bodies of PERSON . , born in DATE , PERSON . Kh . , born in DATE , PERSON . Kh . , born in DATE , and Estamirova T. , born in DATE , were handed over to the first applicant for burial . It also stated that “ the bodies were examined by the investigator of FAC , evidence of a violent death was established , material was handed over to the PERSON prosecutor 's service ” .

After the exhumation the police wanted to leave , but the first applicant interfered and asked them to examine the courtyard for relevant evidence : tank or armoured personnel carrier ( ORG ) tracks in front of the house , empty alcohol bottles , a pair of shoes in the courtyard . The policemen drew a report of the site and collected some other evidence , such as cartridges and bullets .

On DATE ORG in Ingushetia , at the first applicant 's request , certified the deaths of PERSON , born in DATE , PERSON Estamirov , born on CARDINAL DATE , Toita Khavazh- PERSON , born in DATE , PERSON , born on DATE , which had occurred on DATE in LOC of GPE , GPE . The court based its decision on the statements of the applicant and CARDINAL witnesses in which they testified that the applicant 's father , brother , sister - in - law and nephew had remained in PERSON in DATE . In DATE the first applicant learned from his uncle PERSON that his family had been shot by the NORP PERSON ( special police force ) . The court also reviewed the applicant 's internal passport with registered residence in PERSON at FAC , the exhumation certificate issued by the Oktyabrskiy VOVD on DATE , the certificate of the PERSON town administration confirming that the first , the fourth and the fifth applicants had been registered there as forced migrants from GPE since DATE . The court noted that the death certificates were required to apply for allowances for loss of bread - winner .

NORP In DATE the LOC civil registration office of ORG issued CARDINAL death certificates for the applicants ' relatives . They also recorded the date of death as DATE .

The applicants submit that other civilians were killed on DATE in the PERSON suburb of PERSON , which is TIME walk ( QUANTITY away ) from FAC . They refer to the ORG report of DATE entitled “ DATE CARDINAL : A Day of Slaughter in PERSON ” , which puts the blame for extra - judicial execution of QUANTITY civilians in the suburbs of PERSON , PERSON and GPE , on the NORP ORG and military forces . The document reports the deaths of the CARDINAL Estamirov family members , based on the interviews with the family members in ORG , and mentions copies of the reburial photographs .

They also refer to FAC report entitled “ Mopping Up . Settlement of PERSON , DATE - Deliberate Crimes Against Civilians ” ( « Зачистка DATE . ORG PERSON , CARDINAL февраля DATE - преднамеренные преступления против мирного населения ) , which lists CARDINAL members of their family together with other civilians murdered on DATE in PERSON – in total CARDINAL names .

On DATE the office of ORG for the LOC military circuit wrote to the NGO Memorial stating that the military prosecutor of military unit no . CARDINAL had reviewed information related to the crimes against civilians committed in PERSON on DATE and DATE . The military units of ORG and of ORG , over which the military prosecutor 's office had competence , had not conducted military operations or checked passports in the area on the given dates . In view of this , on DATE the criminal proceedings opened by the military prosecutor were closed due to the absence of corpus delicti . The letter further stated that it was established that the “ mopping up ” ( “ zachistka ” ) in PERSON on DATE and DATE had been conducted by the servicemen of ORG of ORG from GPE and ORG , over whom the military prosecutor had no competence . The case file had been forwarded to the ORG for appropriate action . All further requests should be addressed to him or to the Prosecutor of GPE .

On DATE the first and the fourth applicants filed a civil claim against ORG , ORG and ORG with ORG . They submitted that CARDINAL members of their family had been murdered on CARDINAL DATE in their house in PERSON , during a so - called “ mopping up ” operation . Their house and car had been set on fire and their property looted . They referred to the ORG decision of CARDINAL July CARDINAL and the certificate of exhumation issued by the Oktyabrskiy VOVD . They submitted that these acts must have been committed by the federal servicemen , because on that date PERSON had already been under control of the NORP forces . On DATE summary executions took place in PERSON , which is TIME away from their home on QUANTITY . They submitted that on DATE they had applied to ORG requesting a criminal investigation , but no proper investigation had taken place . They also stated that there were no courts in GPE , and that many of the relevant documents were burnt in the house . They sought compensation for pecuniary and non - pecuniary damage . It appears that on DATE ORG refused to consider the claim for lack of jurisdiction and the applicants were advised to apply to a competent district court .

On DATE ORG wrote to ORG and asked for information about the investigation into the Novye Aldy murders . On DATE ORG replied that the request had been forwarded to ORG , who should reply in substance .

On DATE ORG replied to ORG that on DATE the ORG had initiated criminal proceedings no . DATE under Article CARDINAL part CARDINAL of LAW ( murder of CARDINAL or more persons ) and that the investigation was under their supervision .

On DATE the second applicant wrote to ORG asking for information about the investigation . She inquired what measures had been taken to identify and prosecute the culprits , if the investigation had been suspended , and asked the Prosecutor to forward her a copy of the appropriate order . She received no answer to that request .

On DATE the PERSON wrote to ORG asking for up to date information on the criminal proceedings no . DATE opened into the murder of CARDINAL members of the Estamirov family . They received no answer to that request .

On DATE the second applicant wrote to ORG , saying that she had received no reply to her letter to ORG of DATE . On DATE the Prosecutor General 's office informed her that her inquiry had been forwarded to ORG .

In a letter of DATE ORG informed the second applicant that the investigation was conducted by ORG , that ORG monitored its progress and that “ investigative measures aimed at establishing the perpetrators were being conducted ” . The letter also stated , mistakenly , that the applicant 's relatives were murdered in DATE .

The investigation into the applicants ' relatives ' deaths was adjourned and reopened several times . The investigation carried out by ORG produced no tangible results . It appears that it focused on the version of events initially submitted by the applicants , alleging that the killings had been committed by a NORP military detachment , but that it also considered other possible versions . The investigation did not identify the detachment which was responsible and no one was charged with the crimes ( see Part B below for a description of the documents in the investigation file ) . It does not appear that the investigation connected the murder of the applicants ' family members with the investigation of the killings in the PERSON settlement of DATE .

In DATE the seventh applicant applied to ORG of Grozny , asking for a review of the prosecutor 's decision to suspend the investigation in the criminal case concerning the killing of her relatives .

In DATE the application was communicated to ORG , who were requested at that time to submit a copy of investigation file no . DATE . In DATE the ORG submitted a copy of the file as summarised below . In DATE the ORG declared the application admissible and requested the Government to submit an update of the investigation .

The Government responded in DATE that the investigation was pending , but no final conclusions as to the identity of the perpetrators were reached . They also stated that the investigation had examined the criminal investigation file no . DATE concerning the mass murder of civilians in PERSON on DATE . It had obtained no evidence to conclude that the murders had been committed by the same persons , and therefore no grounds were established to join these proceedings . The Government further stated that the disclosure of the latest documents from the criminal investigation file no . DATE would be in violation of LAW , because they contained sensitive information of military and security nature , as well as names and addresses of witnesses who had participated in the counter - terrorist operation in GPE and other participants of the proceedings .

The parties submitted a number of documents concerning the investigation into the killings . The main documents of relevance are as follows :

The Government submitted a copy of the investigation file in criminal case no . DATE , which comprised CARDINAL volume , and a list of CARDINAL documents contained therein . Of those , CARDINAL documents are dated DATE . The most important documents contained in the file can be summarised as follows .

On DATE the investigator of ORG for LOC opened a criminal investigation under LAW ( a ) and ( j ) of LAW into the murder of CARDINAL members of the Estamirov family , found on DATE at CARDINAL FAC with signs of violent death .

In DATE the investigation was transferred to ORG .

On DATE CARDINAL documents were drawn up by the investigators of the Oktyabrskiy VOVD of PERSON at CARDINAL FAC .

The first report was written and signed by an investigator , CARDINAL witnesses and an expert . It contains the following text :

“ Examination of the site CARDINAL by QUANTITY in the courtyard of FAC , PERSON . ... An excavation is made of an opening CARDINAL by QUANTITY , QUANTITY deep . The pit is covered with wooden planks and corrugated iron . In the opening there are CARDINAL bodies of different sizes wrapped in cellophane . Mr. PERSON , taking part in the excavations , explained that on DATE he had buried those bodies in the pit . From left to right these are : PERSON . Kh . born in DATE , ORG , born in DATE , PERSON . Kh . , born in DATE , PERSON . Kh . , born in DATE . The bodies are wrapped in cellophane and tied with ribbons of white cloth . The second opening is QUANTITY , QUANTITY away from the first pit , depth CARDINAL . In the pit there is a cellophane bundle wrapped with white cloth ribbon , CARDINAL cm long . Mr PERSON explained that here on DATE he had buried PERSON , born in DATE . The bodies were taken out of the pits so that the relatives could organise a burial in the village of PERSON . Photographs were made . No additions or corrections . ”

The second document was drawn up at the same location , and contains a description of the household , traces of fire and bullets , and a burnt vehicle GPE VAZ-CARDINAL . The document further lists CARDINAL cartridges and CARDINAL bullet taken from the site , collected and sealed for further expertise . Several photographs of the site , the bodies and the bullet traces were appended to the documents , as well as a sketch plan of the household .

On DATE the investigator of FAC in charge of the exhumation procedure submitted a report to the head of the PERSON , where he stated that CARDINAL bodies of the PERSON family members had been exhumed and transferred to the relatives for burial . The bodies bore signs of violent death , and the deaths most probably had occurred DATE .

On DATE an investigator of ORG again inspected the site at CARDINAL FAC and produced a report . The report noted that the house was burnt and abandoned , and described numerous bullet holes in the walls and furniture and the burnt car in the courtyard . CARDINAL bullets from an AK-CARDINAL,CARDINAL sub - machine gun were collected . The report was accompanied by photographs of the site and sketches of the house .

On DATE investigators of the Oktyabrskiy VOVD questioned the fourth applicant about the known circumstances of the murder of her husband and other family members . She stated that while she stayed in Ingushetia , her husband PERSON , her son PERSON with his wife PERSON and son GPE , and her husband 's cousin PERSON , remained in PERSON in the family house at CARDINAL FAC . She did not therefore witness the killings herself , but was informed of it by her other relatives from ORG . On DATE she arrived in PERSON and saw the place of her relatives ' burial . Her relative PERSON asked PERSON officers to attend the exhumation on DATE . She further stated that she was told by others that on DATE there had been a “ sweeping ” operation in the neighbourhood , during which the drafted soldiers checked the residents ' documents and left . Later there came “ contract ” soldiers and killed everyone who was there . By that time the district was under firm control of the federal forces , and there was no more fighting .

On DATE PERSON explained that he lived in LOC of Grozny . On DATE he came to visit his relative PERSON , who had sent his family to PERSON and remained with his cousin PERSON at the latter 's house . He found the gates opened and a sign on the gates said “ People live here ” . Inside the courtyard he saw a burnt car , behind the car there were CARDINAL bodies – of PERSON and his son PERSON . PERSON body was partially burnt , his left hand and left foot were missing , there were gunshot wounds to his body . PERSON body was badly burned . Further , in QUANTITY , was the body of PERSON , who had been DATE pregnant . She was lying face down in a pool of blood , and when PERSON lifted the body he saw numerous gunshot wounds to the chest . Nearby was the body of her DATE son , GPE , with gunshot wounds to the head and leg . Then PERSON walked into the house and at the entrance to the bathroom found the body of his relative PERSON , which had been badly burnt . He buried the bodies in the courtyard of the house . He had not seen the perpetrators and did know who they were .

Also on DATE the investigators questioned the mother of PERSON , resident of the nearby Zavodskoy district of ORG , the settlement of PERSON . In DATE the witness was in the Tver region . On DATE she was told by her relatives that her pregnant daughter had been killed together with her husband , son and other relatives . The witness did not know who had killed them but had heard from other residents that it were soldiers of the federal forces .

On DATE PERSON was granted victim status in the proceedings , as a close relative of PERSON . On DATE he was questioned for the second time about the circumstances of the killings . He confirmed his statements concerning the discovery of the bodies on DATE . He also testified about the exhumation of the bodies on DATE in the presence of the officials , and added that they had been buried on DATE in the PERSON cemetery . He did not permit the exhumation of his relative 's body .

DATE . On DATE the investigators questioned PERSON , another relative of PERSON . He stated that in DATE he , a resident of PERSON , was in PERSON with his family . In DATE he learnt that his relative and the Estamirov family had been killed in PERSON . They arrived there and on DATE in the presence of the ORG officials unearthed the bodies . He described in more details the wounds on the bodies of his relatives . According to the witness , the bodies of PERSON , FAC and PERSON were burnt , but the witness could recognise and identify them . The bodies of PERSON and PERSON were not burnt . He then gave detailed submissions about the apparent gunshot wounds to the heads and bodies of his relatives . He also explained that the bodies were found in CARDINAL pits , PERSON body was buried in a separate place , QUANTITY away . He confirmed that the house and the car in the courtyard were burnt , and stated that there were lots of cartridges from GPE sub - machine guns on the ground . He also noted empty vodka bottles and clearly visible ORG or tank tracks on the ground . He also recalled that on the gates of the house at CARDINAL FAC there was a sign in chalk “ CARDINAL.II . DATE . ” The witness further stated that he was aware from other residents , whose names he could not recall , that on DATE there was a “ sweeping ” operation in the district , and that the soldiers were moving from FAC towards FAC in LOC . PERSON objected to the exhumation of his relative 's remains . On DATE he was granted victim status in the proceedings .

On DATE the investigators questioned another local resident , who stated that on DATE he was present at CARDINAL FAC at the time of the excavations . He confirmed other witnesses ' statements about the circumstances of the discovery of the CARDINAL bodies .

On DATE and CARDINAL DATE an investigator of ORG ordered forensic reports of the bodies and of the cartridges and bullet collected at the site .

In DATE the ballistic experts concluded that the CARDINAL cartridges and CARDINAL bullet had been used by CARDINAL PERSON sub - machine guns , calibre CARDINAL,CARDINAL mm and PERSON .

On DATE CARDINAL more bullets collected at CARDINAL FAC were sent for a ballistic report .

As to the forensic reports , it appears that none were drawn up , and on DATE they were again ordered by the investigator in charge of the case . The experts were asked to resolve questions related to the cause and date of the victims ' deaths on the basis of the site reports drawn on DATE by the officers of the Oktyabrskiy VOVD . On DATE the investigators questioned a forensic expert in PERSON , who explained that the documents given to him contained no description of the bodies and could not serve as grounds for a forensic report . He also stated that an exhumation would be useless , because no forensic laboratory was functioning in PERSON . On DATE the expert produced CARDINAL identical reports , which stated that the questions could not be resolved on the basis of the submitted documents , because they contained no description of the bodies .

On DATE the investigator of ORG applied to ORG of PERSON seeking to obtain a permission for exhumation of the CARDINAL bodies of the Estamirov family buried on DATE at the PERSON cemetery .

On DATE the ORG sent a number of requests to various authorities in an attempt to identify and question the applicants , other victims and witnesses of the crime . Among others , the requests were sent to find the officers of the Oktyabrskiy VOVD who had been at the time on mission in GPE from ORG . The investigators also requested information from ORG of ORG ( ORG ) if they had any information about GPE Estamirov 's and PERSON possible involvement in the illegal armed groups .

On DATE the investigators questioned a number of local residents , who stated that the Estamirov family had been killed in DATE , apparently by the “ contract ” soldiers of the federal forces . All the witnesses spent DATE outside of ORG , and could not testify about the events of DATE other than by hearsay . The witnesses denied that anyone from the Estamirov family was ever involved in the illegal armed groups or any other illegal activities , or that they could have had a personal feud with anyone .

On several occasions the investigators in charge of the criminal case raised the question of identifying the units of the army ( ORG ) or of ORG , possibly involved in the killings .

On DATE the ORG put this question to the Oktyabrskiy VOVD of Grozny . In response , on DATE the head of the ORG replied that “ on DATE no ' sweeping ' operations or recognisance action were undertaken by the officers of the Oktyabrskiy VOVD , which was set up on DATE ” .

On DATE the investigator in charge of the case sent requests to ORG , the military prosecutor of LOC , the commander of ORG , chief of staff for the LOC military circuit . The letters requested to identify military units deployed in PERSON “ in DATE , during the fighting to liberate ORG from illegal armed groups , ” and to find out whether any special operations had been carried out by them around FAC in LOC . The letters further referred to the results of the ballistic expertise and requested to identify military units that could possibly use cartridges with recorded numbers .

At different stages of the proceedings several orders were produced by the prosecutors of ORG enumerating the steps to be taken by the investigators . The order of CARDINAL DATE instructed them to question and grant victim status to the relatives of the killed , to find out if any military or “ sweeping ” operations had taken place in the area on the given dates , to locate the bodies and to obtain from the relatives a permission for exhumation , to identify other witnesses of the crime . Similar directions are contained in the orders of DATE and DATE .

The case was adjourned CARDINAL times and CARDINAL times reopened . At least on CARDINAL occasions it was transferred from CARDINAL investigator to another . On DATE a group of CARDINAL investigators was put in charge of the case . CARDINAL of the documents in the criminal case file submitted by the Government were produced on DATE . The submitted case - file contains no documents dated after DATE , though it appears that the investigation continued after that date .

The applicants submitted a number of additional documents relating to the circumstances of their relatives ' murder and discovery of the bodies . In particular , they submitted a number of press reports concerning the progress of the NORP troops in their fight for control over ORG , which indicate that different parts of the city came under NORP control at DATE . On DATE several reports mentioned a retreat or withdrawal of a large group of NORP fighters from PERSON , following which the control over the city was largely taken by the NORP troops .

The applicants also submitted a number of reports about the events of CARDINAL DATE in the southern suburbs of ORG , notably in the PERSON settlement . The reports by ORG , ORG and media spoke of a “ pattern of summary executions ” carried out by the NORP troops in the suburbs of ORG , and linked the killing of the PERSON family members with the murders committed in PERSON on DATE .

Until DATE criminal - law matters were governed by LAW the NORP Federalist Socialist Republic . From DATE the old Code was replaced by LAW ( CCP ) .

The DATE ORG required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed . That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction . The decision whether or not to institute criminal proceedings had to be taken within DATE of the first report on the relevant facts ( Articles CARDINAL , CARDINAL - CARDINAL ) . Where an investigating body refused to open or terminated a criminal investigation , a reasoned decision was to be provided . Such decisions could be appealed to a higher - ranking prosecutor or to a court ( Articles CARDINAL and CARDINAL ) .

During criminal proceedings , persons who had been granted victim status could submit evidence and file applications , had full access to the case file once the investigation was complete , and could challenge appointments and appeal decisions or judgments in the case . At an inquest , the close relatives of the deceased were to be granted victim status ( Article CARDINAL of the old ORG ) . Similar provisions were contained in the new ORG .

DATE . Article CARDINAL of the new ORG establishes the rule of impermissibility of disclosure of the data of the preliminary investigation . Under part CARDINAL of the said LAW , the information from the investigation file may be divulged with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . Divulging information about the private life of participants in criminal proceedings without their permission is prohibited .

Article CARDINAL part CARDINAL of the Code of Civil Procedure ( Гражданский процессуальный PERSON РСФСР ) , which was in force until DATE , provided that the court had to suspend consideration of a case if it could not be considered until completion of another set of civil , criminal or administrative proceedings .


André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The first and second applicants are a married couple of NORP nationality and originating from GPE . They were born in DATE and DATE , respectively . The third and fourth applicants are their children , born in DATE and DATE , respectively . The family is currently in GPE . They were represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

In DATE , the first and second applicants applied for asylum and residence permits in GPE . Before ORG ( Migrationsverket ) , they submitted the following . The first applicant had performed his military service in DATE , and had been suspected by NORP of having taken part in a massacre where GPE NORP had been killed . Although he had not been present , the couple had been harassed and threatened by NORP where they lived . People had thrown rocks at them and , during her pregnancy , the second applicant had received numerous death threats and had been beaten on several occasions . They had turned to the local police several times , but had not received any help . In DATE a neighbour had warned them that their house would be attacked and later they had been visited by ORG or UNMIK police , who had told them to flee . They had stayed with the UNMIK police for DATE before leaving the country .

On DATE , ORG rejected the application . ORG found that the applicants had a well - founded fear of persecution in GPE and thus could not be expected to return there . However , it considered that they could relocate to another area within GPE and GPE since they were ethnic NORP . The fact that they did not have any connection to another area was not sufficient to grant them leave to remain in GPE .

The applicants appealed against the decision to ORG ( Utlänningsnämnden ) and added that the first applicant had witnessed a massacre . Pictures of him in his military uniform had been published by ORG and the ORG in DATE and his name had been published in the local newspapers in connection with the massacre . He was therefore known as a traitor throughout GPE and GPE . Moreover , the family lacked a social network outside GPE .

On DATE , ORG upheld ORG decision in full .

Following the enactment of an interim amendment to LAW , the applicants requested to have their case reviewed and referred mainly to discrimination against NORP in GPE . On DATE , ORG decided not to grant them residence permits in GPE on the basis of the interim amendment .

In DATE and DATE , the applicants twice applied for re - examination of their case , claiming that there were impediments to the enforcement of their deportation order . On each occasion , ORG rejected the applications .

On DATE , the deportation order against the applicants became time - barred and they lodged a new application for asylum and residence permits . They stated that their only connection to GPE was their ethnicity and that they had integrated into NORP society . They submitted documents from the third applicant ’s school , stating that he was insecure but developing well , and that he was learning NORP .

On DATE , ORG rejected the application . Through contacts with ORG , ORG had been informed that the first and the second applicants were registered as NORP nationals and as residents in PERSON in GPE . In relation to GPE , ORG found that there were no longer any threats against the applicants there and thus no risk if they returned . As concerned GPE , it noted that the applicants had not invoked any individual grounds for fear . Since they were nationals of GPE and residents there , there were no grounds for them not to return . Moreover , the ORG noted that the applicants had remained in ORG . In reaching this decision , it considered it to be in the best interests of the children to accompany their parents to a country where they had relatives and spoke the language .

The applicants appealed to ORG ( Migrationsdomstolen ) , maintaining their claims and adding that they had lived in GPE but the only reason they had been registered in GPE was to obtain financial aid from the government . Moreover , it would be very difficult for them to settle in GPE . The second applicant also suffered from poor mental health and was scheduled to receive psychiatric care after she had given birth to a stillborn child . They wanted to be near the child ’s grave .

On DATE ORG upheld the ORG ’s decision . It agreed with ORG that the applicants were not in need of protection in relation to either GPE or GPE . Moreover , it found that the second applicant ’s state of health was not so serious that she could be granted a residence permit on that ground . In conclusion , there were no reasons to grant the family leave to remain , even considering that the case involved children .

Upon further appeal , on DATE , ORG ( Migrationsöverdomstolen ) refused leave to appeal .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) . Both the old Aliens Act and the DATE Act define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

LAW , of the DATE Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals .

By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) .

Moreover , if a residence permit can not be granted on the above grounds , a permit may nevertheless be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) as to allow him or her to remain in GPE ( LAW , section CARDINAL of LAW ) . During this assessment , special consideration should be given to , inter alia , the alien ’s state of health . In the preparatory works to this provision ( travaux préparatoires CARDINAL , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien ’s home country could constitute a reason for granting a residence permit .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .

Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) . Hence , upon entry into force on DATE of the DATE Act , ORG ceased to exist .