3 September 2010

FIRST SECTION

Application no. 8969/10 by Mary Magdalene OMEREDO against Austria lodged on 8 February 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Mary Magdalene Omeredo , is a Nigerian national who was born in 1973 and lives in Wels . She is represented before the Court by Ms S. Singer, a lawyer practising in Wels .

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

The applicant fled Nigeria in May 2003. She applied for asylum in Austria on 23 May 2003, stating that she comes from a village in Delta State and belongs to the Isoko group. Her mother still lives in that village, her father died when she was 5 years old.

In April 2003 she should have undergone FGM (female genital mutilation), as according to the custom in her village, every five years the unmarried women were to undergo FGM. The applicant ' s sister had died because of the consequences of FGM and the applicant had told her mother she did not want to undergo FGM, but was told that she would have to accept it. The applicant submitted that police would not interfere in what they saw as a tradition and that the other villagers might kill her if she refused FGM.

The applicant fled from her village and stayed with a friend in a neighbouring village for a few days but had to leave due to fights that broke out in the village. The applicant then travelled to Austria on an unknown route.

The Federal Asylum Office ( Bundesasylamt ) rejected the applicant ' s request for asylum on 10 July 2003 and stated that her expulsion to Nigeria was permissible.

It held that the applicant, whose statements were credible, disposed of an internal flight alternative. She could for instance live in another province or in one of the big cities. Consequently, she could not be considered to be in danger of treatment contrary to Article 2 or Article 3 of the Convention. It stated that no national legal prohibition of FGM was in force in Nigeria , but several federal states had such provisions in force. The Federal Asylum Office concluded that the reasons for fear could not be imputed to the state. As the state could not be deemed unable or unwilling to offer protection, the applicant was expected to avail herself on the protection offered by the state.

The applicant, represented by counsel, lodged a complaint against the decision before the Asylum Court ( Asylgerichtshof ).

By decision of 10 September 2009 the Asylum Court rejected the complaint, finding that the Federal Asylum Office had not erred when assessing the evidence and no new circumstances had come to light to necessitate re-assessing the evidence. With regard to FGM, the Asylum Court held that the practise was declining, but still existed. However, state authorities might have afforded protection to the applicant, and the applicant disposed of an internal flight alternative.

The applicant complained to the Constitutional Court and applied for legal aid. By decision of 1 December 2009, the Constitutional Court refused legal aid and refused to deal with the complaint, holding that the complaint did not raise any issue of constitutional law and thus had no prospects of success. The decision was served on the applicant ' s counsel on 9 December 2009.

COMPLAINT S

1. The applicant complains under Article 3 of the Convention that she runs the risk of being subject to FGM if the authorities expelled her to Nigeria , where no effective protection is available.

She also complains that relying on an internal flight alternative and moving to another part of Nigeria as a single woman without her family to help her, would amount to a situation in violation of her rights under Article 3 of the Convention.

2. Without relying on any provision of the Convention, the applicant complains that the Asylum Court ' s decision was arbitrary and that her case had been pending for more than 6 years.

QUESTION TO THE PARTIES

In the light of the applicant ' s claims and the documents which have been submitted, would she face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order were enforced?