Sprendimas sujungtose bylose C-71/11 ir C-99/11 (Y and Z)
Europos Sąjungos Teisingumo Teismas
2012 m. rugsėjo 5 d.
Y and Z applied for asylum in Germany, claiming that their membership of the Muslim Ahmadiyya community had forced them to leave Pakistan. Pakistani Criminal Code 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 their faith or invite others to accept it. The German authorities rejected Y’s and Z’s applications for asylum as unfounded. On appeal, the German court decided to stay the proceedings and submitted a preliminary reference to the CJEU.
Questions referred to the CJEU by the national court
1. Is Article 9(1)(a) of the Directive 2004/83/EC to be interpreted as meaning that not every interference with religious freedom constitutes an act of persecution, and that a severe violation of religious freedom arises only if the core area of that religious freedom is affected?
2. If yes:
(a) Is the core area of religious freedom limited to the private practice of faith, or can it be considered persecution if practicing faith in public causes a risk to life, physical integrity or freedom and the applicant accordingly abstains from such practice?
(b) If the core area of religious freedom can also comprise the public practices, is it enough that the applicant feels that such practice is indispensable in order for him to preserve his religious identity or does the practice need to constitute a central part of the religion’s doctrine?
3. Can the applicant be expected to abstain from religious practices, which will cause a risk to his life, physical integrity or freedom?
The Court considered that not any interference with the right to religious freedom guaranteed constitutes an act of persecution, there must be a ‘severe violation’ of religious freedom having a significant effect on the person concerned. However, the Court noted that ‘severe violations’ include serious acts which interfere with the applicant’s freedom not only to practice his faith in private but also to live that faith publicly. It is the severity of the measures and sanctions adopted against the person which will determine whether a violation of the right constitutes persecution.
Regarding the third question, the Court found that authorities cannot reasonably expect the applicant to abstain from religious practices that could result in persecution. If it is thought that, upon return to country of origin, the applicant will engage in religious practices which will expose him to a real risk of persecution, the applicant’s fear of being persecuted can be considered well founded. The fact that he could avoid that risk by abstaining from certain religious practices is irrelevant.