Key facts of the case:
Reference for a preliminary ruling — Area of freedom, security and justice — Borders, asylum and immigration — Conditions for granting refugee status — Criteria for determining the Member State responsible for examining an application for international protection — Examination of an application for international protection without an explicit decision on the competence of the Member State — Concept of religion — Assessment of reasons for persecution based on religion.
Outcome of the case:
On the basis of all the foregoing considerations, I propose that the questions referred by the Administrativen sad Sofia-Grad (Administrative Court, Sofia, Bulgaria) for a preliminary ruling be answered as follows:
4. Mr Fathi brought an action against the DAB decision before the referring court, which decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1) Does it follow from Article 3(1) of [the Dublin III Regulation], interpreted in conjunction with recital 12 and Article 17 of that regulation, that a Member State may issue a decision that constitutes an examination of an application made to it for international protection within the meaning of Article 2(d) of that regulation, without expressly deciding on the responsibility of that Member State under the criteria in the regulation if, in the particular case, there is nothing to give rise to a derogation pursuant to Article 17 of that regulation?
(2) Does it follow from the second sentence of Article 3(1) of [the Dublin III Regulation], interpreted in conjunction with recital 54 of Directive 2013/32/EU, that, in the circumstances of the main proceedings, where there is no derogation pursuant to Article 17(1) of that regulation, a decision must be issued in respect of an application for international protection within the meaning of Article 2(b) of that regulation by which the Member State undertakes to examine the application in accordance with the criteria in the regulation and which is based on the fact that the provisions of the regulation apply to the applicant?
(3) Is Article 46(3) of Directive 2013/32/EU to be interpreted as meaning that, in proceedings against a decision refusing international protection, the court must rule pursuant to recital 54 of the directive on whether the provisions of [the Dublin III Regulation] apply to the applicant if the Member State has not expressly decided on its responsibility for examining the application for international protection in accordance with the criteria in the regulation? Must it be presumed on the basis of recital 54 of Directive 2013/32 that, where there are no indications suggesting that Article 17 of [the Dublin III Regulation] applies and the application for international protection was examined on the basis of Directive 2011/95 by the Member State to which it was made, the legal situation of the person concerned is within the scope of the regulation even if the Member State has not expressly decided on its responsibility in accordance with the criteria in the regulation?
(4) Does it follow from Article 10(1)(b) of Directive 2011/95/EU that, in the circumstances of the main proceedings, the reason for persecution of “religion” exists where the applicant has not made statements and presented documents relating to all the components covered by the concept of religion as defined in this provision which are of fundamental importance for the affiliation of the person concerned to a particular religion?
(5) Does it follow from Article 10(2) of Directive 2011/95/EU that reasons for persecution based on religion within the meaning of Article 10(1)(b) of the directive exist where the applicant, in the circumstances of the main proceedings, claims that he has been persecuted on grounds of his religious affiliation but has not made any statements or presented any evidence regarding the circumstances that are characteristic of a person’s particular religious affiliation and would be a reason for the actor of persecution to believe that the person concerned was affiliated to that religion — including circumstances linked to taking part in or abstaining from religious actions or religious expressions of view — or regarding the forms of individual or communal conduct based on or mandated by a religious belief?
(6) Does it follow from Article 9(1) and (2) of Directive 2011/95, interpreted in conjunction with Articles 18 and 10 of the Charter of Fundamental Rights of the European Union [‘the Charter’] and the concept of religion as defined in Article 10(1)(b) of the directive, that in the circumstances of the main proceedings:
(a) the concept of religion as defined in EU law does not encompass any acts considered to be criminal in accordance with the national law of the Member States? Is it possible for such acts that are considered to be criminal in the applicant’s country of origin to constitute acts of persecution?
(b) In connection with the prohibition of proselytism and the prohibition of acts contrary to the religion on which the laws and regulations in the country in question are based, are limitations to be regarded as permitted that are established to protect the rights and freedoms of others and public order in the applicant’s country of origin? Do these prohibitions as such constitute acts of persecution within the meaning of the cited provisions of the directive when violation of them is threatened with the death penalty even if the laws are not explicitly aimed against a particular religion?
(7) Does it follow from Article 4(2) of Directive 2011/95, interpreted in conjunction with Article 4(5)(b) of the directive, Article 10 of [the Charter] and Article 46(3) of Directive 2013/32/EU, that, in the circumstances of the main proceedings, an appraisal of the facts and circumstances may be conducted only on the basis of the statements made and the documents presented by the applicant, but it is still permitted to require proof of the missing components covered by the concept of religion as defined in Article 10(1)(b) of the directive where:
– without this information the application for international protection would be considered unfounded within the meaning of Article 32 in conjunction with Article 31(8)(e) of Directive 2013/32/EU and
– national legislation provides that the competent authority must establish all the relevant circumstances for the examination of the application for international protection and the court, should the refusal decision be contested, must point out that the person concerned has not offered and presented any evidence?’
27) The Court has also clarified, with regard to Article 3(2) of the Dublin II Regulation, that that provision grants Member States a discretionary power that forms an integral part of the Common European Asylum System provided for by the FEU Treaty and developed by the European Union legislature, and that that power must be exercised by Member States in accordance with the other provisions of that regulation and the provisions of the Charter. ( 22 ) It follows that, despite — contrary to what had been provided for by the Commission in its proposal for reform of the Dublin II Regulation (‘the proposal for the Dublin III Regulation’) ( 23 ) — the consent of the applicant not being required in order for the sovereignty clause to be activated, ( 24 ) that clause cannot, in any event, be applied in breach of the applicant’s fundamental rights. ( 25 ) I do not, therefore, share the view expressed by the Hungarian Government in its written observation that the exercise of the option afforded in Article 17(1) of the Dublin III Regulation is a matter for the discretion of the Member States and would not be subject to any judicial review.
51) By its sixth question referred for a preliminary ruling, the referring court essentially asks whether, and if so in which circumstances, restrictions on the freedom of religion laid down in the applicant’s State of origin, such as the prohibition of proselytism or the prohibition of acts contrary to the official religion of that State, that are justified by the objective of safeguarding public policy in that country, may constitute acts of persecution under Article 9(1) and (2) of Directive 2011/95, read in the light of Article 10 of the Charter. The referring court also asks whether the mere existence of such prohibitions, even where they are not aimed at one religion in particular, is sufficient to give rise to persecution where violation of those prohibitions is punished by the death penalty.
53) The right to religious freedom enshrined in Article 10(1) of the Charter ( 47 ) corresponds to the right guaranteed by Article 9 of the ECHR. ( 48 )
55) However, as the Court clarified in paragraphs 58 and 59 of the same judgment, this does not mean that any interference with the right to religious freedom guaranteed by Article 10(1) of the Charter constitutes an act of persecution requiring the competent authorities to grant refugee status within the meaning of Article 2(d) of Directive 2011/95 to any person subject to the interference in question, since there must be a ‘severe violation’ of that freedom that significantly affects the person concerned in order for the acts in question to be regarded as constituting persecution. In addition, ‘a violation of the right to freedom of religion may constitute persecution within the meaning of Article 9(1)(a) of Directive 2011/95 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’. ( 49 )
58) The referring court observes that restrictions on religious freedom that are intended to safeguard public policy or public security or even to protect the rights and freedoms of others are allowed in the laws of some Member States, in accordance with Article 52(1) of the Charter. ( 52 ) It asks whether, in view of the clarification made by the Court in paragraph 66 of the judgment of 7 November 2013, X and Others (C‑199/12 to C‑201/12, EU:C:2013:720) with regard to the concept of sexual orientation, ( 53 ) acts constituting offences under the national law of the Member States may come under the concept of religion within the meaning of EU law, and whether the repression of such acts in the applicant’s country of origin may constitute persecution within the meaning of Article 9 of Directive 2011/95.