Case C‑56/17

Bahtiyar Fathi

v

Predsedatel na Darzhavna agentsia za bezhantsite

(Request for a preliminary ruling from the Administrativen sad Sofia-grad)

(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)

Summary — Judgment of the Court (Second Chamber), 4 October 2018

1. Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection — Regulation No 604/2013 — Examination of an application for international protection notwithstanding the absence of an express decision determining the Member State responsible for that examination — Lawfulness

   (European Parliament and Council Regulation No 604/2013, Arts 2(d) and 3(1))

2. Border controls, asylum and immigration — Asylum policy — Procedures for granting and withdrawing international protection — Directive 2013/32 — Action brought against a decision refusing an application for international protection — Right to an effective remedy — Obligation to examine both facts and points of law — Scope — Obligation to review of its own motion compliance with the criteria and mechanisms for determining the Member State responsible for examining that application — No obligation

   (European Parliament and Council Regulation No 604/2013; European Parliament and Council Directive 2013/32, Art. 46(3))

3. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Conditions for granting refugee status — Risk of persecution — Reasons for persecution based on religion — Concept of ‘religion’

   (Charter of Fundamental Rights of the European Union, Art. 10; European Parliament and Council Directive 2011/95, Art. 10(1)(b))

4. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Conditions for granting refugee status — Risk of persecution — Reasons for persecution based on religion — Assessment of facts and circumstances — Evidence to be submitted by the applicant — Evidence to be taken into account by the competent authorities

   (European Parliament and Council Directive 2011/95, Arts 4 and 10(1)(b))

5. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Conditions for granting refugee status — Risk of persecution — Concept of ‘act of persecution’ — Death penalty or custodial sentence for conduct contrary to the official religion of the country of origin of the applicant for international protection — Included — Condition — Genuine risk of being subject to such punishment

   (European Parliament and Council Directive 2011/95, Art. 9(1) and (2))

1.  Article 3(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third‑country national or a stateless person, must, in a situation such as that in the main proceedings, be interpreted as not precluding the authorities of a Member State from conducting an examination on the merits of an application for international protection, within the meaning of Article 2(d) of that regulation, where there is no express decision by those authorities determining, on the basis of the criteria laid down by the regulation, that the responsibility for conducting such an examination lies with that Member State.

   (see para. 56, operative part 1)

2.  Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, must, in a situation such as that in the main proceedings, be interpreted as meaning that, in an action brought by an applicant for international protection against a decision dismissing his application for international protection as being unfounded, the court or tribunal with jurisdiction of a Member State is not required to examine of its own motion whether the criteria and mechanisms for determining the Member State responsible for examining that application, as provided for by Regulation No 604/2013, were correctly applied.

   Recital 54 of Directive 2013/32 stipulates that that directive should apply to applicants to whom the Dublin III Regulation applies, in addition and without prejudice to that regulation. It cannot be inferred therefrom, however, that, in the context of proceedings brought under Article 46(1) of Directive 2013/32 by an applicant for international protection against a decision which considers his application for international protection to be unfounded, the court or tribunal of a Member State with jurisdiction must review of its own motion the correct application of the criteria and mechanisms, laid down in the Dublin III Regulation, for determining the Member State responsible for examining an application for international protection.

   Recital 53 of Directive 2013/32 expressly indicates that that directive is not applicable to procedures between Member States governed by the Dublin III Regulation.

   Further, Article 2(d) of the Dublin III Regulation provides that, for the purposes of that regulation, the ‘examination of an application for international protection’ means ‘any examination of, or decision or ruling concerning, an application for international protection by the competent authorities in accordance with Directive [2013/32] and Directive [2011/95], except for procedures for determining the Member State responsible in accordance with [that] Regulation’.

   (see paras 67-70, 72, operative part 2)

3.  Under Article 10(1)(b) of Directive 2011/95, ‘Member States shall take the following elements into account when assessing the reasons for persecution: ... the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief’.

   The Court has already had occasion to point out, with regard to the interpretation of Directive 2004/83, that that provision gives a broad definition of ‘religion’ which encompasses all its constituent components, be they public or private, collective or individual (see, to that effect, judgment of 5 September 2012, Y and Z, C‑71/11 and C‑99/11, EU:C:2012:518, paragraph 63).

   In that regard, it is clear from the wording of that provision, and particularly the use of the words ‘in particular’, that the definition of the concept of ‘religion’ contained therein provides only a non-exhaustive list of components that may characterise that concept in the context of an application for international protection that is based on the fear of being persecuted for reasons of religion.

   In particular, as is clear from that definition, the concept of ‘religion’ covers, on the one hand, the holding of theistic, non-theistic and atheistic beliefs, which, given the general nature of the words used, highlights that it covers both ‘traditional’ religions and other beliefs and, on the other, the participation in, either alone or in community with others, or the abstention from, formal worship, which implies that the fact that a person is not a member of a religious community cannot, in itself, be decisive in the assessment of that concept.

   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).

   (see paras 77-81)

4.  Article 10(1)(b) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third‑country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that an applicant for international protection who claims, in support of his application, that he is at risk of persecution for reasons based on religion does not, in order to substantiate his claims concerning his religious beliefs, have to submit statements or produce documents concerning all components of the concept of ‘religion’, referred to in that provision. The onus is, however, on the applicant to substantiate those claims in a credible manner by submitting evidence which permits the competent authority to satisfy itself that those claims are true.

   As the Advocate General has also observed in points 43 and 44 of his Opinion, if the applicant is returned to his country of origin, the acts which may be committed by the authorities of those countries against the applicant on grounds of religion must be assessed according to their gravity. On the basis of that criterion, they may therefore be classified as ‘persecution’ even though they do not affect each of the components of the concept of religion.

   However, the applicant must duly substantiate his claims as to his alleged religious conversion, since the statements and no more relating to his religious beliefs or membership of a religious community constitute merely the starting point in the process of assessment of the facts and circumstances envisaged under Article 4 of Directive 2011/95 (see, by analogy, judgments of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 49, and of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 28).

   In verifications carried out by the competent authorities, pursuant to Article 4 of the directive, when certain aspects of the statements of an applicant for international protection are not substantiated by documentary or other evidence, those aspects may be taken into account only if the cumulative conditions laid down in Article 4(5)(a) to (e) of that directive are met. Those conditions include, in particular, the fact that the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to his case, as well as the fact that the applicant’s general credibility has been established (see, to that effect, judgment of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 33). Where necessary, the competent authority must also take account of explanations provided regarding a lack of evidence, and of the applicant’s general credibility (judgment of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 41 and the case-law cited).

   As the Advocate General stated in point 47 of his Opinion, in the context of applications for international protection based on a fear of persecution on grounds of religion, account must be taken, in addition to the individual position and personal circumstances of the applicant, of, inter alia, his religious beliefs and how he developed such beliefs, how he understands and lives his faith or atheism, its connection with the doctrinal, ritual or prescriptive aspects of the religion to which he states he is affiliated or from which he intends to distance himself, his possible role in the transmission of his faith or even a combination of religious factors and factors regarding identity, ethnicity or gender.

   (see paras 83, 84, 86-88, 90, operative part 3)

5.  Article 9(1) and (2) of Directive 2011/95 must be interpreted as meaning that the prohibition, on pain of execution or imprisonment, of conduct which is contrary to the State religion of the country of origin of the applicant for international protection may constitute an ‘act of persecution’, within the meaning of that article, if that prohibition may, in practice, be enforced by such penalties by the authorities of that country, which it is for the referring court to ascertain.

   As the Court has noted, it is apparent from the wording of Article 9(1) of that directive that a prerequisite of the acts in question being regarded as acts of persecution is that there must be a ‘severe violation’ of religious freedom that has a significant effect on the person concerned (judgment of 5 September 2012, Y and Z, C‑71/11 and C‑99/11, EU:C:2012:518, paragraph 59). That requirement is met where the applicant for international protection, 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 that directive (see, to that effect, judgment of 5 September 2012, Y and Z, C‑71/11 and C‑99/11, EU:C:2012:518, paragraph 67).

   In the present case, it must be considered that the fact that legislation, such as the law on apostasy at issue in the main proceedings, imposes the death penalty or a custodial sentence, is capable, in itself, of constituting an ‘act of persecution’, within the meaning of Article 9(1) of Directive 2011/95, provided that such penalties are actually applied in the country of origin which adopted such legislation (see, by analogy, judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 56). Such penalties constitute punishment which is disproportionate or discriminatory within the meaning of Article 9(2)(c) of that directive (see, by analogy, judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 57).

   The point raised by the referring court concerning whether, in the country of origin, the prohibition which is criminalised in that manner is considered necessary in order to safeguard public order or to protect the rights and freedoms of others is irrelevant. When examining an application for refugee status, the competent authority must determine whether there is a well‑founded fear of persecution in the sense referred to in Directive 2011/95, regardless of whether or not the measure in the country of origin giving rise to the risk of persecution falls within the scope of conceptions of public order or rights and freedoms in that country.

   (see paras 94-97, 99, 101, operative part 4)