CJEU – Case C-56/17 (Fathi), 4 October 2018

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Country of Applicant: 
Iran
Date of Decision: 
04-10-2018
Citation: 
Court of Justice of the European Union, Case C-56/17 (Fathi), 4 October 2018
Additional Citation: 
ECLI:EU:C:2018:803
Court Name: 
Court of Justice of the European Union
Headnote: 

A Member State is not required to issue a decision on its own responsibility under Dublin III when, in its capacity as the determining Member State, it found that there is no sufficient evidence to establish responsibility of another Member State. Domestic courts do not have to examine the application of the Dublin criteria ex proprio motu in the context of a review of the rejection of an application for international protection.

Religion is a broad concept that encompasses both internal elements of faith and an external component of manifestation. The applicant does not have to provide documentation and make statements on both elements but has to cooperate with the authorities and substantiate the reasons that his claim of persecution on the grounds of religion is true. The provision of the death penalty in national legislation could constitute an “act of persecution” on its own, provided that the penalty is actually enforced and regardless of whether the measure is considered important for reasons of public order in that country of origin.

Facts: 

The applicant, an Iranian national of Kurdish origin, lodged an application for international protection with the Bulgarian authorities in March 2016. His application was based on the persecution he claimed to have suffered by the Iranian authorities due to his conversion to Christianity.

In June 2016, the Bulgarian authorities refused his application as unfounded, claiming there was contradictions in his account and the risk of persecution had not been established. The applicant sought the annulment of that decision before the referring court, arguing that the Bulgarian authorities incorrectly assessed a document attesting his conversion and did not sufficiently consider information on Iran’s law on apostasy.

The preliminary reference by the Sofia Administrative Court, concerned the need for a Member State to issue a decision determining its own responsibility to examine an asylum application under the Dublin III Regulation. The reference also included several questions on the assessment of religion-based asylum claims.

Decision & Reasoning: 

Concerning the need to need to issue a decision determining responsibility for an asylum application under the Dublin III Regulation, the Court first noted that the Regulation does not provide an explicit obligation for the Member State to issue a decision on its own responsibility.

The Court further analysed the content of the Regulation’s procedural safeguards under Article 3 (1) and the right to information under Article 4. The right to be informed does not only relate to the criteria for determining the Member State responsible or their hierarchy, but also concerns the fact that a Member State where an application is lodged may become responsible even if this responsibility is not based on those criteria. The possibility of responsibility that is not connected to the Regulation’s criteria has also been found to exist in the Court’s case law in the context of Article 17 Dublin III.

Moreover, the procedural safeguards of Articles 26 and 27 relate to cases of Dublin transfers and possibility for review of transfer decisions and not to cases where the determining Member State found that there is no information to establish the responsibility of another Member State and, therefore, no need to transfer the applicant. Consequently, those safeguards are not relevant to the Member State’s decision on its own responsibility, a conclusion that is further supported by the purpose of the Regulation itself, which is the rapid determination of the Member State responsible.

In the same context, a domestic court, when deciding on an appeal against a decision that rejects an asylum application, is not required to examine ex proprio motu whether determination criteria and mechanisms were correctly applied. The Court noted that the content of an effective remedy under Directive 2013/32 includes judicial review of all factual and legal issues, but concurred with the AG’s opinion that such a review cannot be considered as requiring an automatic examination of Dublin considerations. Moreover, it is clear from Recital 53 of Directive 2013/32 that that Directive does not apply to procedures governed by the Dublin Regulation, while Article 2 (d) Dublin III also excludes the examination of Dublin procedures from the meaning of “examination of an application for international protection”.

On the question of standard of proof regarding religion-based asylum claims, the Court first noted that it has previously found that in the context of Directive 2004/83 religion is rather broadly defined.   Furthermore, the concept of religion under Article 10 (1) b of Directive 2011/95 does not provide an exhaustive list of elements that may characterise religion. Lastly, the Court has already interpreted Article 10 of the Charter of Fundamental Rights of the European Union as a broader concept  consisting of a forum internum, i.e. the fact of believing, and a forum externum, i.e. manifesting religious faith. Religion, however, can be expressed in either form and the applicant cannot be required to prove each component to substantiate their religious beliefs.

It follows that the applicant cannot be expected to provide evidence or proof on each of the elements listed in the aforementioned provision. The applicant, however, should provide the authorities with evidence that support the claim in a reliable manner.

Lastly, the Court indicated that the provision of the death penalty in national legislation could constitute an “act of persecution” on its own, provided that such a penalty measure actually takes place in that state. Moreover, when determining an applicant’s international protection status, the characterisation of this measure as an “act of persecution” cannot be affected by public order considerations in the country of origin.

Outcome: 

Article 3(1) of the Dublin III Regulation does not preclude the authorities of a Member State from conducting an examination on the merits of an application for international protection, 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.

Article 46(3) of the Asylum Procedures Directive, must 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 the Dublin III Regulation, where correctly applied.

Article 10(1)(b) of the Qualifications Directive 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.

Article 9(1) and (2) of the Qualification Directive 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.

Case Law Cited: 

CJEU - C-473/16, F., 25 January 2018

CJEU - C-148/13, A and Others, 2 December 2014

CJEU - C-25/17, Jehovan Todistajat, 10 July 2018

CJEU - C-426/16, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, 29 May 2018

CJEU - C-71/11 and C-99/11 Germany v Y and Z

CJEU - C 528/11, Halaf, 30 May 2013

CJEU - C 213/17, X., 5 July 2018

CJEU - C 670/16, Mengesteab, 26 July 2017

CJEU - C-578-16, C. K. and Others, 16 February 2017
Authentic Language: 
English
Country of preliminary reference: 
Bulgaria
National / Other Legislative Provisions: 
Bulgaria - Law on asylum and refugees (the ZUB) - Art. 6(1)
Bulgaria - Law on asylum and refugees (the ZUB) - Art. 8
Bulgaria - Law on asylum and refugees (the ZUB) - Art. 9
Bulgaria - Law on asylum and refugees (the ZUB) - Art. 67a(2)