Germany / Federal Administrative Court / 10 C 23.12 Pakistani citizen v Federal Office for Migration and Refugees

Key facts of the case:

The plaintiff is a Pakistani citizen who desired to be recognized as a refugee in Germany or, alternatively, acquire protection from deportation to Pakistan. He claims to be a member of the Ahmadiyya-community of faith and to be persecuted in Pakistan therefore. Between 2000 and 2005 the plaintiff filed six applications desiring asylum in Germany. All of them were dismissed. In 2008, he claimed that the EU directive 2004/83/EG had changed his legal situation. The extent of protection now also contained the active proselytization which he regards as a personal religious obligation and which is the primary reason for the persecution. In 2010, the Stuttgart Administrative Court obligated the defendant to recognize the plaintiff as a refugee. The Mannheim Higher Administrative Court dismissed the appeal of the defendant stating that the EU Directive 2004/83 EG had actually changed the situation in favor of the plaintiff and that there is a considerable probability that he will be prosecuted for his religious beliefs in Pakistan. The defendant’s appeal on questions of law was successful. The Federal Administrative Court considered the fact-finding of the Mannheim Higher Administrative Court insufficient concerning the reasons for the recognition as a refugee and remanded the judgment.

Paragraphs referring to EU Charter: 


Margin number 23: “The European Court of Justice considers the freedom of religion enshrined in Article 10 (1) of the Charter to be a fundamental human right which illustrates a fundament of a democratic society and which complies with Article 9 ECHR. An interference with the right of freedom of religion can be so grave that it can be equated with one of the cases named in Article 15 (2) ECHR which are referred to by Article 9 (1) letter a of the EU Directive as an indication for the determination of the actions that are considered persecutive (European Court of Justice, l.c. margin number 57). But not every interference with the right of freedom of religion guaranteed in Article 10 (1) of the Charter is a persecutive action as defined by Article 9 (1) of the EU Directive (margin number 58). At first, it has to be a violation of this freedom which is not covered by a legally intended restriction of the exercise of fundamental rights as defined by Article 52 (1) of the Charter. Moreover, it has to be a very severe violation of the right which affects the person concerned remarkably (margin number 59). This requires, according to Article 9 (1) letter a of the EU Directive, that the interferences with the right equal a violation of the fundamental rights, of which, according to Article 15 (2) ECHR, nobody may deviate in any case (margin number 61).” margin number 25: “Whether a violation of the right guaranteed in Article 10 (1) of the Charter can be classified as an act of persecution as defined by Article 9 (1) of the EU Directive, can only be determined by the seriousness of the actions and sanctions that are taken or may be taken towards the person concerned.[…]”

Deciding body (original language):