Tuesday 19. October 2021
#153 - October 2012


Reinforcing religious freedom through asylum


Religious freedom cannot be reduced to its private dimension, but its various manifestations in the public space are also an essential component.


According to the Court of Justice of the European Union in its judgment of 5 September 2012 (in case Germany v. Y and Z) - that interprets the grounds for granting asylum status in the EU under Directive 2004/83/EC - religious freedom has two essential dimensions (private and public) and anyone suffering persecution for his religious beliefs, including its public expression, should be qualified and protected as a refugee.


In this particular case, the two asylum seekers in Germany belonged to the Ahmadiyya religious community, a minor Islamic reformist group in Pakistan, whose members are frequently harassed – and even attacked - it being possible for them to be legally imprisoned as a result of their religious beliefs.


The Court states that when the public expression of one’s religion causes a genuine and sufficiently serious risk (by the nature or repetition of acts) of being persecuted in his or her home country, the 2004 Directive qualifies the victim as an asylum seeker in the EU. The ruling is based on the premise that freedom of religion is one of the pillars of a democratic society and that it is a fundamental human right recognized by the European Charter of Fundamental Rights (Article 10.1) and in the European Convention on Human Rights (Article 9). Both texts, the Charter and the Convention, include as part of religious freedom, "the freedom to manifest their religion or belief individually or collectively, in public or private (...)".


The interpretive problem arises because in some political, legal and academic circles, religion is reduced to a private sphere (home and temple), and an artificial distinction between religious freedom’s private and public dimensions is made, giving core value to the first one, and an incidental protection to the latter. However, the answer of the Luxembourg Court is clear: both aspects are essential in religious freedom.  “It is unnecessary”, states the Court, “to distinguish acts that interfere with the ‘core areas’ (‘forum internum’) of the basic right to freedom of religion, which do not include religious activities in public (‘forum externum’), from acts which do not affect those purported ‘core areas’” (para. 62). It is therefore the severity of the measures and sanctions adopted, or liable to be adopted, against the person concerned which will determine whether a violation of religious freedom constitutes persecution within the meaning of Article 9(1) of the Directive.


National authorities cannot reasonably expect that any person renounce the practice of certain acts under his freedom of religion in order to avoid a risk of persecution, says the Court. But we can also add that the “external forum” of religion cannot be reduced to worship and rites but, as stated by the Charter and the Convention (and many other international treaties), it can legitimately be expressed in other areas such as education.


Religion’s public dimension may also include “the observance of a certain religious practice in public [that] is of particular importance to the person concerned in order to preserve his religious identity” (para. 70), even though that practice is not a religious obligation. As a general principle, it could easily be applied, for example, to a couple of cases against the United Kingdom before the European Court of Human Rights (the hearing was held 4 September last), concerning Ms. Eweida (an employee of British Airways) and Ms. Chaplin (a geriatric nurse), both dismissed from work because they had Christian crosses around their necks. The general arguments contained in the Luxembourg Court’s judgment should play an important role in the final decision of the Strasbourg Court, especially at a time when there is a progressive and significant institutional affinity between both courts.


This decision opens the door to a more sensitive approach to all victims of religious persecution outside the EU; and it is a clear message in the defence of the integrity of religious freedom (also inside the EU).


José Luis Bazán


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