CJEU: C-56/17 Fathi - Request for a preliminary ruling from the Administrative Court of Sofia (Bulgaria)

Date: 
Friday, February 3, 2017

The Bulgarian Administrative Court of Sofia has referred the following preliminary questions to the CJEU in case C-56/17 Fathi concerning the interpretation of Regulation (EU) No 604/2013 (Dublin Regulation III) and Directive 2011/95/EU (Qualification Directive) in a case of an Iranian man who applied for asylum in Bulgaria on the ground of his religion:

1. Does it follow from Article 3, paragraph 1 of Regulation (EU) No 604/2013, read in conjunction with Recital 12 and Article 17 thereof, that a Member State may take a decision which must be considered as an ‘examination of an application for international protection’ as defined in Article 2 d) of the Regulation, while there is no explicit decision on the responsibility of that Member State in accordance with the criteria of the Regulation, where in the concrete case there are no indications of a derogation as meant in Article 17 of the Regulation?

2. Does it follow from Article 3, paragraph 1, second sentence of Regulation (EU) no. 604/2013, in conjunction with Recital 54 of Directive 2013/32/EU, that in the circumstances of the case, in respect of an application for international protection as defined in Article 2 b) of that Regulation, if there is no derogation as meant in Article 17 paragraph 1 thereof, a decision should be taken whereby the State obliges itself to examine the application in accordance with the criteria of the Regulation and whereby the decision is based on the fact that the provisions of the Regulation apply to the applicant? 

3. Is Article 46, paragraph 3, of Directive 2013/32/EU to be interpreted that the judge in an appeal procedure against a decision of refusal of international protection, has to decide in accordance with Recital 54 of that Directive whether the provisions of Regulation (EU) no. 604/2013 apply to the applicant, if the Member State has not taken an explicit decision on its responsibility for examining the application for international protection under the criteria of the Regulation? Should it be assumed on the basis of Recital 54 of Directive 2013/32 that, when there are no indications for the applicability of Article 17 of Regulation no. 604/2013 and the application for international protection is examined on the basis of Directive 2011/95/EU by the Member State in which the application is lodged, the Regulation also then applies to the legal situation of the person concerned if the Member State has taken no explicit decision on its responsibility under the criteria of the Regulation? 

4. Does it follow from Article 10, paragraph 1 b) of Directive 2011/95/EU that in the circumstances of the case there is persecution on the ground of "religion", if the applicant has not made statements and provided documents related to all aspects covered by the concept of religion within the meaning of that provision that are fundamental to assess whether the person adheres to a particular religion? 

5. Does it follow from Article 10, paragraph 2 of Directive 2011/95/EU that there is persecution based on religion in the sense of Article 10, paragraph 1 b) of that Directive, if the applicant in the circumstances of the case states to be persecuted on the basis of his religious beliefs, but did not make statements and submit evidence concerning aspects which are characteristic of adhering to a particular religion and which for the prosecuting party would constitute a reason to assume that that person adheres to that religion - including aspects related to whether or not the individual was carrying out religious activities or religious statements -, or concerning forms of individual or communal conduct based on religious belief or prescribed by religious belief?

6. Does it follow from Article 9, paragraphs 1 and 2 of Directive 2011/95/EU in conjunction with Articles 18 and 10 of the Charter of Fundamental Rights of the European Union and the concept of religion in the sense of Article 10 paragraph 1 b) of that Directive, that in the circumstances of the case:

а) the concept of religion within the meaning of EU law does not include activities which are punishable under the national law of the Member States? Can such acts, which are punishable in the country of origin of the applicant, be acts of persecution?

b) relating to the prohibition of proselytism and the prohibition of acts contrary to the religion to which the laws and regulations of the country of origin of the applicant are based, restrictions must be considered permissible which are set in order to protect the rights and freedoms of others and of the public order in that country? Should such prohibitions be regarded in itself as acts of persecution within the meaning of the cited provisions of the Directive if infringements to them are punished by a death sentence, although the legislation in question is not directed specifically against a particular religion?

7. Does it follow from Article 4, paragraph 2 of Directive 2011/95/EU, in conjunction with paragraph 5, under b) of that provision, Article 10 of the Charter of Fundamental Rights of the European Union and Article 46, paragraph 3 of Directive 2013/32/EU, that in the circumstances of the case the assessment of the facts and circumstances may be made only on the basis of statements and documents submitted by the applicant, but it is also permitted to require proof of missing aspects covered by the concept of religion within the meaning of Article 10, paragraph 1 b) of the Directive if:

- the application for international protection without such data should be considered unfounded in the sense of Article 32 in conjunction with Article 31, paragraph 8 e) of Directive 2013/32/EU; and

- national law provides that the competent authority should establish all circumstances relevant for the assessment of the application for international protection and the judge in case of dispute concerning the decision of refusal should point out that the applicant has not offered and presented evidence?



This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Burden of proof
Persecution (acts of)
Persecution Grounds/Reasons
Religion
Responsibility for examining application