Izevbekhai v Ireland
Forum: European Court of Human Rights
INTERIGHTS' role: Third party interveners
Keywords: Cruel, inhuman or degrading treatment. equality, torture, internal relocation.
The European Court of Human Rights found the applicants’ claim in the case of Izevbekhai v Ireland inadmissible in May 2011. INTERIGHTS had submitted a third party intervention to the European Court of Human Rights in the case, which concerned the respondent government’s proposal to return a Nigerian woman and her two daughters to Nigeria where she claimed her daughters faced the risk of female genital mutilation (FGM). The question arose in the course of proceedings whether such a risk existed in her place of origin and whether she could avoid that risk by relocating to another part of Nigeria. The case concerned, inter alia, the nature of state obligations not to transfer individuals to states where there is a real risk they would face torture or cruel, inhuman or degrading treatment or punishment.
INTERIGHTS’ third party intervention addressed a number of matters, including why FGM and the threat of FGM amount to ill-treatment and the absolute nature of the obligation on states not to deport in this context. The intervention argued that the Court should ensure persons in situations similar to that of the applicants receive meaningful protection from this grave form of violence. The intervention also suggested that the Court’s approach in this case must commence from an understanding of the practical realities surrounding the practice of FGM, including the clandestine nature of the practice, the extent of familial and community collusion, and the lack of effective monitoring and protection. In line with the Court’s approach to date and that of other international bodies, the brief suggested the Court take a flexible approach to the standard and burden of proof, and that any doubt should be interpreted in favour of protection. The intervention set out factors relevant to the Court’s approach to assessing risk in this context, including the level of practical protection available to women and girls in the state and their personal circumstances.
Finally, the intervention drew on international practice to set out factors relevant to whether ‘internal relocation’ should be considered by the Court as an alternative where there is a real risk of FGM in the place of origin. Factors that militate against such relocation, of relevance in this case, include where the crimes are gender related, where state protection elsewhere in the country has failed, where the risk from non-state actors is unclear, where the applicants are victims of past abuse, and where due to their age, sex and other characteristics they are particularly vulnerable to new risks in the area of relocation.
The Court found that the personal circumstances of the applicants and the prevailing political and legal situation in parts of Nigeria meant that internal relocation was available to them. While it recognised that where substantial grounds have been shown that there was a real risk of girls and women being subject to FGM as a result of their expulsion from a member state of the Council of Europe that state’s responsibility would be engaged under the Convention, it found that in this case there was no evidence sending the applicants back to Nigeria would amount to a violation of Article 3.