Article 10 - Freedom of thought, conscience and religion
Article 18 - Right to asylum
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling — Area of freedom, security and justice — Borders, asylum and immigration — Regulation (EU) No 604/2013 — Article 3 — Determining the Member State responsible for examining an application for international protection made in one of the Member States by a third-country national — Examination of an application for international protection without an express decision on the determination of the Member State responsible for the examination — Directive 2011/95/EU — Articles 9 and 10 — Reasons for persecution based on religion — Evidence — Iranian legislation on apostasy — Directive 2013/32/EU — Article 46(3) — Effective remedy.
Outcome of the case:
On those grounds, the Court (Second Chamber) hereby rules:
7 Recital 16 of Directive 2011/95 provides:
‘This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. ...’
17) Recitals 4, 5 and 19 of the Dublin III Regulation state:
‘(4) The conclusions [of the special meeting of European Council in Tampere on 15 and 16 October 1999] also stated that the [Common European Asylum System] should include, in the short‑term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.
(5) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection.
(19) In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.’
37) In those circumstances, the Administrativen sad Sofia-grad (Administrative Court, Sofia) decided to stay the proceedings and to refer the following questions to the Court of Justice 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 the regulation, without expressly deciding on the responsibility of that Member State under the criteria in that 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, 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 [Dublin III Regulation] apply to the applicant?
(3) Is Article 46(3) of Directive 2013/32 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 that 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 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 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 had such a religious affiliation — 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 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 punishable by 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 that directive, Article 10 of the Charter of Fundamental Rights of the European Union and Article 46(3) of Directive 2013/32, 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, 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?’
81) Moreover, as regards the concept of ‘religion’ referred to in Article 10 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which, as is apparent from recital 16 of Directive 2011/95, must be taken into account when interpreting that directive, the Court has emphasised the broad understanding of that concept, covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public, as religion may be expressed in either form (see, to that effect, judgments of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C‑426/16, EU:C:2018:335, paragraph 44, and of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 47 and the case-law cited).
100) With regard to Articles 10 and 18 of the Charter, which are also mentioned by the referring court, it is sufficient to point out that they do not, in respect of the answer to the present question referred, provide any further specific guidance.