Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The CJEU referred in its operative part of the judgment to the Article 10 of the Charter (Freedom of thought, conscience and religion). It explained when a violation of the right guaranteed by Article 10(1) of the Charter constitutes persecution within the meaning of Article 9(1) of the Directive.
Two men who had applied for asylum in Germany claimed that their membership of the Muslim Ahmadi community had forced them to leave Pakistan. They argued that they had experienced persecution and that according to the Pakistani Criminal Code members of the Ahmadi religious community may face imprisonment of up to three years or may be punished by death or life imprisonment or a fine. The first instance refused their claims.
On appeal, the Federal Administrative Court decided to stay the proceedings and submitted a preliminary reference to the CJEU concerning the interpretation of Article 9(1)(a) Qualification Directive (‘acts of persecution’).
The Federal Administrative Court decided to stay the proceedings and submitted a preliminary reference to the CJEU concerning the interpretation of Article 9(1)(a) Qualification Directive (‘acts of persecution’). While the Federal Administrative Court referred in its question to Article 9 ECHR (freedom of religion), but not to the Charter, the Court of Justice interpreted the question as follows:
Is Article 9(1)(a) of the Directive “to be interpreted as meaning that any interference with the right to religious freedom that infringes Article 10(1) of the Charter may constitute an ‘act of persecution’ […]” and must “a distinction […] be made between the ‘core areas’ of religious freedom and its external manifestation”? The CJEU in its operative part interpreted Article 9(1)(a) Qualification Directive “as meaning that: not all interference with the right to freedom of religion which infringes Article 10(1) of the Charter […] is capable of constituting an ‘act of persecution’ […]”.
It also held that “there may be an act of persecution as a result of interference with the external manifestation of that freedom, and for the purpose of determining whether interference with the right to freedom of religion which infringes Article 10(1) of the Charter […] may constitute an ‘act of persecution’, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2004/83”.
The CJEU in its operative part interpreted Article 9(1)(a) Qualification Directive “as meaning that: not all interference with the right to freedom of religion which infringes Article 10(1) of the Charter […] is capable of constituting an ‘act of persecution’ […]”.
It also held that “there may be an act of persecution as a result of interference with the external manifestation of that freedom, and for the purpose of determining whether interference with the right to freedom of religion which infringes Article 10(1) of the Charter […] may constitute an ‘act of persecution’, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2004/83”.
Reference to Article 10(1) Charter
"10 As follows from recital 10 in the preamble to the Directive, read in the light of Article 6(1) TEU, the Directive respects the rights, freedoms and principles recognised by the Charter. In particular, it seeks to ensure, on the basis of Articles 1 and 18 of the Charter, full respect for human dignity and the right to asylum of applicants for asylum.
48 The Directive must, for that reason, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU. As is apparent from recital 10 in the preamble thereto, the Directive must also be interpreted in a manner consistent with the rights recognised by the Charter […].
49 By the first two questions referred in both cases, which it is appropriate to consider together, the Bundesverwaltungsgericht asks, in essence, whether Article 9(1)(a) of the Directive is to be interpreted as meaning that any interference with the right to religious freedom that infringes Article 10(1) of the Charter may constitute an ‘act of persecution’ within the meaning of that provision of the Directive and whether a distinction must be made between the ‘core areas’ of religious freedom and its external manifestation.
56 The right to religious freedom enshrined in Article 10(1) of the Charter corresponds to the right guaranteed by Article 9 of the ECHR.
57 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 Article 9(1) of the Directive refers, by way of guidance, for the purpose of determining which acts must in particular be regarded as constituting persecution.
58 However, that cannot be taken to mean that any interference with the right to religious freedom guaranteed by Article 10(1) of the Charter constitutes and act of persecution requiring the competent authorities to grant refugee status within the meaning of Article 2(d) of the Directive to any person subject to the interference in question.
59 On the contrary, it is apparent from the wording of Article 9(1) of the Directive that there must be a ‘severe violation’ of religious freedom having a significant effect on the person concerned in order for it to be possible for the acts in question to be regarded as acts of persecution.
60 Acts amounting to limitations on the exercise of the basic right to freedom of religion within the meaning of Article 10(1) of the Charter which are provided for by law, without any violation of that right arising, are thus automatically excluded as they are covered by Article 52(1) of the Charter.
61 Nor can acts which undoubtedly infringe the right conferred by Article 10(1) of the Charter, but whose gravity is not equivalent to that of an infringement of the basic human rights from which no derogation can be made by virtue of Article 15(2) of the ECHR, be regarded as constituting persecution within the meaning of Article 9(1) of the Directive and Article 1A of the Geneva Convention.
62 For the purpose of determining, specifically, which acts may be regarded as constituting persecution within the meaning of Article 9(1)(a) of the Directive, 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’.
63 Such a distinction is incompatible with the broad definition of ‘religion’ given by Article 10(1)(b) of the Directive, which encompasses all its constituent components, be they public or private, collective or individual. Acts which may constitute a ‘severe violation’ within the meaning of Article 9(1)(a) 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.
64 That interpretation is likely to ensure that Article 9(1) of the Directive is applied in such a manner as to enable the competent authorities 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.
65 It follows that 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, as observed by the Advocate General at point 52 of his Opinion.
66 It is therefore the severity of the measures and sanctions adopted or liable to be adopted against the person concerned which will determine whether a violation of the right guaranteed by Article 10(1) of the Charter constitutes persecution within the meaning of Article 9(1) of the Directive.
67 Accordingly, a violation of the right to freedom of religion may constitute persecution within the meaning of Article 9(1)(a) of the Directive where an applicant for asylum, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of the Directive.
68 It should be noted that where, in accordance with Article 4(3) of the Directive, the competent authorities carry out an assessment of an application for international protection on an individual basis, they are required to take account of all the acts to which the applicant has been, or risks being, exposed, in order to determine whether, in the light of the applicant’s personal circumstances, those acts may be regarded as constituting persecution within the meaning of Article 9(1) of the Directive.
69 Given that the concept of ‘religion’ as defined in Article 10(1)(b) of 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 within the meaning of Article 9(1)(a) of the Directive and, therefore, persecution where, in the country of origin concerned, it gives rise to a genuine risk that the applicant will, inter alia, be prosecuted or subject to inhuman or degrading punishment by one of the actors referred to in Article 6 of the Directive.
70 In assessing such a risk, the competent authorities must take account of a number of factors, both objective and subjective. 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.
71 Indeed, it is apparent from the wording of Article 10(1)(b) of the Directive that the scope of protection afforded on the basis of persecution on religious grounds extends both to forms of personal or communal conduct which the person concerned considers to be necessary to him – namely those ‘based on … any religious belief’ – and to those prescribed by religious doctrine – namely those ‘mandated by any religious belief'."
Qualification Directive 2004/83/EC
An Introduction to the Common European Asylum System for Courts and Tribunals. A Judicial Analysis
Handbook on European law relating to asylum, borders and immigration
Case study - Religious persecution as a reason for granting international protection