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  • 5 September 2012 : CJEU : Religion as ground for persecution

In judgment Bundesrepublik Deutschland c/ Y. and Z. of 5 September 2012 (joined cases C-71/11 and C-99/11), the Court specified to what extent violations of freedom of religion can constitute persecution in the sense of Article 9 of Directive 2004/83/EC of 29 April 2004 on minimum norms for conditions that non-EU nationals or stateless persons must fulfil in order to qualify for refugee status.

Y. and Z., originating from Pakistan and members of the Ahmadiyya community, claimed to have been forced to leave Pakistan due to belonging to this community; they now lived in Germany where they were seeking asylum and protection as refugees.

The German authorities rejected their asylum applications, considering that restrictions on the practice of religion in public imposed on the Ahmadis in Pakistan did not constitute persecution under asylum law. Following several appeals that annulled the dismissal of the case by the administration, the national court (Bundesverwaltungsgericht, Federal Administrative Court) asked the Court of Justice for a preliminary ruling, requesting it to clarify the restrictions on practising a religion which constitute persecution justifying the granting of refugee status.

The Court notes that only some forms of serious violations of the right to freedom of religion can constitute an act of persecution and specifies that any infringement of the right to freedom of religion, which violates Article 10, paragraph 1 of the EU Charter of Fundamental Rights is not likely to constitute an act of persecution in the sense of Article 9 of the directive (point 58). Such serious violations include acts violating the freedom of the applicants not only to practise their beliefs in private, but also to enact them in public (point 63).

There is persecution if the victim is in real danger, i.e. of being pursued or subjected to inhuman or degrading treatment or punishment. Assessing such a risk involves the competent authority taking account of a series of elements that are as much subjective as objective. If observing a certain religious practice in public (which is the subject of the limitations contested) is particularly important for the persons concerned in order to conserve their religious identity, then the Court notes that this subjective circumstance is relevant in the assessment of the level of risk to which the applicants would be exposed in their country of origin on account of their religion. Such is the case even if observation of such a religious practice does not constitute a central element for the religious community concerned (point 70).

Finally, the Court notes that, once it is established that the persons concerned, back in their country of origin, will perform religious acts exposing them to a real risk of persecution, they should be granted refugee status. In this regard, the Court considers that, in the individual assessment of an application to obtain refugee status, national authorities may not reasonably expect of the applicants that, to avoid risk of persecution, they renounce upon the manifestation or the practice of certain religious acts (point 80).

D 5 October 2012    AFrançoise Curtit

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