Omeredo v. Austria

App. No. 8969/11
Download Judgment: English

Ms Omeredo fled Nigeria in May 2003 to escape her village’s custom of female genital mutilation (FGM) and applied for asylum in Austria. The Federal Asylum Office and the Asylum Court rejected her application on the same grounds, namely that the applicant was expected to make use of the state’s protection by fleeing within Nigeria which had a prohibition against FGM. The Constitutional Court rejected the applicant’s complaint that the Asylum Court did not consider the difficulties she would face trying to find work and make a living as a single woman if forced to flee to another state.

Ms Omeredo applied to the European Court of Human Rights arguing that returning to Nigeria posed a risk of FGM and that an internal flight alternative as a single woman without family support violated her rights under Article 3 of the European Convention on Human Rights. The applicant also complained that the Asylum Court’s decision was arbitrary and that her trial process was excessively long.

The Court affirmed that the issue at hand was not whether FGM amounted to torture or inhuman or degrading treatment under Article 3 of the Convention. Subjecting anyone to FGM clearly contravened Article 3.

However, the Court held that Ms Omeredo had an internal flight option within Nigeria. The Court assessed the applicant’s life in Nigeria and held that, although she was an unmarried woman and would be without family support, the applicant would be likely to find a job upon relocating due to her education level and years of work experience. It was not material that her quality of life may be inferior to what she would experience in Austria. Consequently, her fear of FGM could not be imputed to the State and did not contravene Article 3.

Accordingly, the Court found the complaint to be manifestly ill-founded as per Article 35(3)(a) and rejected it under Article 35(4).

The Court also rejected the applicant’s complaint that the Asylum Court’s decision was arbitrary and of excessive duration. It held that Article 6 of the Convention concerning the right to a fair trial did not apply to asylum matters. The Court held that the applicant’s complaints were not sufficient to establish immunity from prosecution at international law.

It is not in dispute that subjecting any person, child or adult, to FGM would amount to ill-treatment contrary to Article 3 of the Convention (see Izevbekhai, quoted above, § 73). The Court notes that the domestic authorities found that the applicant’s fear of being forced to undergo FGM in Nigeria, was well-founded, but that she disposed of an internal flight alternative within the country.” (Page 5)

Therefore, the Court must assess the applicant’s personal situation in Nigeria,…[t]he applicant had obtained 16 years of education and 8 years’ working experience as a seamstress. Against this background, the applicant was considered able to find shelter and an adequate job in another part of the country in order to live there.” (Page 5)

While it might be difficult to live in Nigeria as an unmarried woman without support of her family, the Court reiterates that the fact that the applicants’ circumstances in Nigeria would be less favourable than those enjoyed by her in Austria cannot be regarded as decisive from the point of view of Article 3.” (Page 5)