Facts – The applicant fled Nigeria in May 2003 and applied for asylum in Austria on the grounds that she was at risk of female genital mutilation (FGM) in her own country. The Federal Asylum Office rejected her request after finding that, even though her statements were credible, she had the alternative of living in another province of Nigeria where FGM was prohibited by law. The applicant lodged a complaint against that decision with the asylum court, but it was ultimately rejected. The Constitutional Court declined to examine the question after finding that it did not raise any issue of constitutional law. In her application to the European Court, the applicant complained under Article3 of the Convention that she ran the risk of being subjected to FGM if expelled to Nigeria and 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 also violate her rights under that provision.
Law – Article3: It was not in dispute that subjecting any person, child or adult, to FGM would amount to ill-treatment contrary to Article3 (see also Izevbekhai and Others v. Ireland (dec.), no.43408/08, 17May 2011). The Court noted, however, that while the domestic authorities had found that the applicant’s fear of being forced to undergo FGM in Nigeria was well-founded they considered that she disposed of an internal flight alternative within the country. The Court therefore had to assess the applicant’s personal situation in Nigeria. The applicant, who was thirty-seven years old, had obtained school education for at least thirteen years and had worked as a seamstress for eight years. While it might be difficult for her to live in Nigeria as an unmarried woman without the support of her family, the fact that her circumstances there would be less favourable than those she enjoyed in Austria could not be regarded as decisive. Owing to her education and work experience as a seamstress, there was reason to believe that she would be able to build up her life in Nigeria without having to rely on the support of family members.
The authors of the communication were the Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice, two organizations in Vienna, Austria, that protect and support women victims of gender-based violence. From July 2003 Fatma Yildirim was subject to repeated death threats from her husband Ifran Yildrim, who also threatened to kill her children. On 6 August 2003 the police issued an expulsion and prohibition to return order against Irfan Yildirim. The police also reported to the Vienna Public Prosecutor that Irfan Yildirim had made a dangerous criminal threat against Fatma Yildirim and requested that Irfan Yildirim be detained. The Public Prosecutor rejected the request. On 14 August 2003, Fatma Yildirim gave a formal statement about the threats made to her life to the police, who in turn reported to the Vienna Public Prosecutor, requesting that Irfan Yildirim be detained. Again, this request was refused. On 11 September 2003, Irfan Yildirim fatally stabbed Fatma Yildirim near the family’s apartment.
Irfan Yildirim was arrested and convicted of killing Fatma Yildirim. At the time of the application he was serving a sentence of life imprisonment.
In 2007, the Committee on the Elimination of Discrimination Against Women considered Goekce v. Austria (C/39/D/5/2005 ). In 2002, the author's (Goekce's) husband shot and killed her in front of their two daughters. Before her death, the author had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The local prosecutor denied requests to detain the husband and terminated proceedings against him two days prior the author’s death. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in the author’s death. Representatives of the author submitted a complaint to the Committee, alleging that Austria’s Federal Act for the Protection against Violence within the Family provided inadequate protection for victims of spousal abuse, and stating that women are disproportionately affected by the State’s failure to effectively respond to domestic violence.
Decision. The Committee found that although Austria had adopted progressive legislation to address domestic violence, State authorities needed to investigate and respond to such complaints with increased diligence. Accordingly, the Committee concluded that the police knew or should have known that the author was in serious danger; thus, they were accountable for failing to protect her. By allowing the perpetrator’s rights to supersede the victim’s right to life and to physical and mental integrity, Austrian law enforcement violated its obligations under Article 2 to end sex-based discrimination through appropriate legislation, and its Article 3 duty to guarantee women’s equal access to human rights. The Committee recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Protection against Violence within the Family, respond to complaints of domestic violence with due diligence, and provide adequate sanctions for the failure of authorities to do so.