CJEU: Case C-150/15 reference for a preliminary ruling from Saxony Administrative Court – religious persecution

Date: 
Friday, July 3, 2015

The Saxony Administrative Court in Germany lodged a request for a preliminary ruling in the case of Der Bundesbeauftragte für Asylangelegenheiten v N. It relates to the interpretation of the recast Qualification Directive in the context of religious persecution. The questions referred are: 

1. Is Article 9(1)(a) in conjunction with Article 10(1)(b) of Directive 2011/95/EU 1 to be interpreted as follows:

a)    that a severe violation of the freedom of religion guaranteed by Article 10(1) CFREU (Charter of Fundamental Rights of the European Union) and Article 9(1) ECHR (European Convention on Human Rights) and thus an act of persecution under Article 9(1)(a) of the Directive must be assumed when religious acts or expressions of view that are mandated by a doctrine of faith that the applicant actively professes and which form a core element of the doctrine of faith or are based on the religious convictions of the applicant in the sense that they are a pillar of his religious identity, are prohibited by criminal law in the country of origin,

or

b)    is it required that an applicant who actively declares his belief in a particular doctrine of faith must further prove that core elements mandated as religious acts or as or expressions of view by the doctrine of faith, which represent a prohibited religious activity subject to criminal prosecution in his country of origin, are ‘particularly important’ for the preservation of his religious identity and in this sense are ‘essential’?

2. Is Article 9(3) in conjunction with Article 2(d) of Directive 2011/95/EU to be interpreted as follows:

that in order to determine a well-founded fear of being persecuted and a real risk of being persecuted or subjected to inhuman or degrading treatment or punishment by one of the actors specified in Article 6 of Directive 2011/95/EU, with regard to religious acts or expressions of view that are mandated by a doctrine of faith that the applicant actively professes and are a core element of the doctrine of faith or are based on the religious convictions of the applicant in the sense that they are a pillar of his religious identity, and are prohibited by criminal law in the country of origin,

a)    it is necessary to evaluate the relationship by comparing the number of members of the applicant’s faith who practice their faith despite the prohibition to the number of actual acts of persecution of these acts of faith in the applicant’s country of origin, including any possible uncertainties or unknowns regarding governmental enforcement practices,

or

b)    it is sufficient if, in the enforcement of the criminal law in the country of origin, the actual application of the laws threatening prosecution of religious acts or expressions of view that are mandated by a doctrine of faith that the applicant actively professes and which form a core element of the doctrine of faith or are based on the religious convictions of the applicant in the sense that they are a of particular importance for his religious identity can be proved?

3. Is a provision of national administrative law under which a trial court is bound by the legal judgment of the court of third instance (here: Section 144(6) VwGO (Verwaltungsgerichtsordnung) [Administrative Court Procedure Act]) compatible with the principle of the primacy of EU law if the trial court wishes to interpret a standard in EU law differently to the court of third instance but, even after implementation of a preliminary ruling procedure pursuant to Article 267(2) TFEU, is precluded from applying this interpretation of EU law by national law binding the court to the legal analysis of the court of third instance?
 



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Keywords: 
Persecution (acts of)
Persecution Grounds/Reasons
Refugee Status
Religion
Well-founded fear