Bundesrepublik Deutschland v. Y and Z, Joined Cases C-71/11 and C-99/11, CJEU (Grand Chamber), 5 September 2012

Qualification for refugee status for the members of a religious minority. Persecution on account of religion in the country of origin. Prohibition to manifest a person’s religion in public.

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

Art. 9 ECHR

Art. 15 ECHR

Art. 10 EUCFR

1. Freedom of religion is one of the foundations of a democratic society and is a basic human right. Interference with the right to religious freedom may be so serious as to be treated in the same way as the cases referred to in Article 15(2) of the ECHR, to which the Directive 2004/83/EC refers, by way of guidance, for the purpose of determining which acts must be regarded as constituting persecution. However, this does not mean that any interference with the right to religious freedom guaranteed under Article 10(1) of the Charter of Fundamental Rights of the European Union constitutes an act of persecution requiring the competent authorities to grant refugee status to any person subject to the interference in question.

2. For the purpose of determining, specifically, which acts may be regarded as constituting persecution, it is unnecessary to distinguish acts that interfere with the “core areas” (“forum internum”) of the basic right to freedom of religion, which do not include religious activities in public (“forum externum”), from acts which do not affect those purported “core areas”. Acts which may constitute a “severe violation” within the meaning of the Directive include serious acts which interfere with the applicant’s freedom not only to practice his faith in private circles but also to live that faith publicly.

3. Competent authorities are entitled to assess all kinds of acts which interfere with the basic right of freedom of religion in order to determine whether, by their nature or repetition, they are sufficiently severe as to be regarded as amounting to persecution. The acts which, on account of their intrinsic severity as well as the severity of their consequences for the person concerned, may be regarded as constituting persecution must be identified, not on the basis of the particular aspect of religious freedom that is being interfered with but on the basis of the nature of the repression inflicted on the individual and its consequences.

4. Given that the concept of “religion” as defined in the Directive also includes participation in formal worship in public, either alone or in community with others, the prohibition of such participation may constitute a sufficiently serious act and, therefore, persecution where, in the country of origin concerned, it gives rise to a genuine risk that the applicant will be prosecuted or subject to inhuman or degrading treatment or punishment.

5. The subjective circumstance that the observance of a certain religious practice in public, which is subject to the restrictions at issue, is of particular importance to the person concerned in order to preserve his religious identity is a relevant factor to be taken into account in determining the level of risk to which the applicant will be exposed in his country of origin on account of his religion, even if the observance of such a religious practice does not constitute a core element of faith for the religious community concerned.

(In the present case, two Pakistani nationals being members of the Ahmadiyya religious community applied for asylum and recognition of refugee status by claiming that they could not practice their religion in public without being exposed to a risk of persecution in their country of origin. According to the Court, they should be granted refugee status where it is established that, upon their return to the country of origin, the persons concerned will follow a religious practice which will expose them to a real risk of persecution. The fact that they could avoid that risk by abstaining from certain religious practices is, in principle, irrelevant).