By Nathalie Vandystadt | Friday 07 September 2012 EUROPOLITICS

Contrary to the German authorities, the EU Court of Justice considers that, where they are sufficiently serious, certain forms of interference with the public manifestation of religion may constitute persecution for reasons of religion and therefore constitute a sufficient reason to obtain asylum in the EU.

The cases are that of two Pakistani citizens, Y and Z, who are members of a religious minority – the Ahmadiyya Muslim community, which is an Islamic reformist movement. In its 5 September ruling (Cases C-71/11 and C-99/11), the ECJ recalls that the law in Pakistan on blasphemy provides that members of the Ahmadiyya religious community may face imprisonment of up to three years or a fine if they claim to be Muslim, describe their faith as Islam, preach or propagate or invite others to accept their faith.

Having left their country because of their religious beliefs, Y and Z currently live in Germany, where they applied for asylum. In particular, Y stated that on several occasions in his home village a group of people had stones thrown at him at his community’s place of prayer and that, in addition, he had received death threats and had been reported to the police for insulting the Prophet Mohammed. Z claimed that he was mistreated and imprisoned as a result of his religious beliefs. However, the German authorities rejected Y and Z’s applications for asylum, finding that the restrictions on the public practice of faith imposed on Ahmadis in Pakistan do not constitute persecution for the purposes of the right of asylum.
SEVERITY OF VIOLATION

The Bundesverwaltungsgericht (Federal Administrative Court, Germany), before which the disputes have been brought, then put the question to the ECJ – whose opinion was quite different.

The ECJ does find that, under Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees, only certain forms of severe interference with the right to freedom of religion – and not any interference with that right – may constitute an act of persecution requiring the competent authorities to grant refugee status. The ECJ points out, however, that these violations include both public and private practice of faith. In the ECJ’s view, it is the severity of the violation that matters. Moreover, the ECJ adds that “where it is established that, upon his return to his country of origin, the person concerned will engage in a religious practice which will expose him to a real risk of persecution, he should be granted refugee status”. The ECJ backs this conclusion by noting that “the national authorities cannot reasonably expect the applicant to abstain from the manifestation or practice of certain religious acts” to escape persecution.

Nonetheless, it will be up to the German legislation to resolve this case in accordance with the ECJ’s decision – which other EU jurisdictions will have to take it into account if they are faced with similar cases.

NOTE BY THE EDITOR: In view of the importance of this topic we bring several articles on the same subject.