Opinion of Advocate General Bot, Bundesrepublik Deutschland v. Y and Z, Joined Cases C-71/11 and C-99/11, CJEU (Grand Chamber), 19 April 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. The objective pursued by the legislature of the Union in the context of the common European asylum system is not to grant protection whenever an individual cannot fully and effectively exercise the freedoms guaranteed by the Charter or the ECHR in his country of origin, but to restrict the recognition of refugee status to individuals who may be exposed to a serious denial or systemic infringement of their most fundamental rights, and whose life has become intolerable in their country of origin.

2. There is nothing in the case-law of the Court of Justice of the European Union or, specifically, of the European Court of Human Rights, to support the proposition that the “core area” of freedom of religion must be limited to private conscience and the freedom to manifest one’s religion in private or within the circle of those who share the faith, thus excluding the public manifestation of religion.

3. The freedom to practice one’s religion is not an indefeasible right. Nonetheless, it is a fundamental right and it might be thought that any limitation or infringement, however minor, of that right must be punished. Such limitation is, by nature, necessary to the equilibrium of life in society: the restriction of a religious practice by means of a law intended to ensure a balance between the practices of the different religions that exist in a State cannot amount, therefore, to an “act of persecution” or even an infringement of freedom of religion. On the contrary, such a law is a way of seeking to maintain genuine religious pluralism and of ensuring, under the rule of law, the peaceful co-existence of different beliefs, as befits a democratic society.

4. There is a well-founded fear of persecution where the asylum-seeker intends, once back in his country of origin, to pursue religious activities which expose him to a risk of persecution. The authority responsible for examining the application for asylum cannot reasonably expect the asylum seeker to forego these activities, and specifically to forego manifesting his faith.

(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).