In his recent Opinion in Cases C-71/11 and C-99/11 Advocate General Bot held that a serious infringement of the freedom of religion may constitute an ‘act of persecution’ where the asylum seeker, by exercising that freedom or as a result of infringing the restrictions placed on the exercise of that freedom, runs a real risk of being deprived of his most fundamental rights. This is an important case for the application of fundamental rights in asylum context. The AG seems to be aware of this considering the extensive elaboration on the matter. Nevertheless, the Opinion of the AG is not very satisfying, mainly because the interpretation based on the European Court of Human Rights (hereafter: ECHR) case law, does not seem very consistent.
The cases concerned a reference for a preliminary ruling by the German Bundesverwaltungsgericht (Federal Administrative Court). The applicants in the main proceedings were Pakistani nationals who entered Germany and applied for asylum on religious grounds. They stated that because they exercised their faith as members of the Ahmadiyyah (a minority community that adheres to the Ahmadiyyah, long contested by the Sunni Muslim majority in Pakistan), they would be prosecuted and therefore should be recognized as refugees. The lower German Court had decided that the freedom of religion entails amongst others the right to exercise and demonstrate faith in public and that the restrictions on the exercise of faith in Pakistan represent a grave violation of the freedom of religion for a devout Ahmadi. The Bundesverwaltungsgericht decided to refer questions, in which it asked the Court of Justice to set out the circumstances in which an infringement of the freedom of religion, and in particular of the right of an individual to live his faith freely and openly, may constitute an ‘act of persecution’ within the meaning of Directive 2004/83/EC.
The Directive seeks to establish minimum standards and common criteria for all the Member States regarding the recognition of asylum seekers as refugee within the meaning of Article 1 of the Refugee Convention. A refugee is defined as a third country national who faces a ‘well founded fear’ of being persecuted in his country of origin for reasons of race, religion, nationality, political opinion or membership of a particular social group (art. 2). The acts of persecution are set out in art. 9 of the Directive and include acts of physical or mental violence, legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner. For recognition as a refugee it is also required that the reason for prosecution is established. For this case the ground of religion is relevant. According to the directive, the concept of religion should 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 (art. 10). The main purpose of the Directive is to lay down minimum standards for the definition and content of refugee status in order to guide the national authorities in the application of the Refugee Convention. It can’t be said that they succeeded in realizing this in regard to the persecution concept, since the Directive doesn’t do much more than repeat the standards mentioned in the UNHCR Handbook.
Back to the opinion of the Advocate General. It contains an elaborate reasoning in order to answer (in the negative) the first question: whether an individual may be required to restrict some aspects of the exercise of his religion to a ‘core area’. First of all, such an approach seems to be contrary to the wording of Articles 9 and 10 of the Directive and relevant case law. A broad interpretation of freedom of religion, encompassing all components thereof, be they public or private, collective or individual, follows from these.
At this stage it is not clear to me on what ground the AG distinguishes between the ‘material’ and ‘mental’ aspect of persecution (par. 48). The prevailing distinction that is made up in literature until now, has been the one between persecution ‘acts’ and ‘grounds’. Case law of the European Court of Human Rights supposedly would endorse this view, because there is no support for the proposition that the ‘core area’ of freedom of religion must be limited to private conscience and the freedom to manifest one’s religion in private or within the circle of those who share the faith, thus excluding the public manifestation of religion.
It is true that the ECHR has emphasised the fact that the freedom of religion entails also the freedom to manifest the religion in public, but the ECHR is in principle not opposed to the idea of ‘core’ rights in Convention rights. Subsequently the Opinion brings forward an interpretation analogous to the one in the decision of this Court in a similar case (Z. and T. v. UK). In that case, the two female Pakistani nationals of the Christian faith alleged that, on their return to their country of origin, they would be unable to live as Christians without incurring the risk of receiving hostile attention or having to take measures to conceal their faith. According to the applicants, to require them to change their behaviour by concealing their adherence to Christianity and by renouncing the opportunity to practice it publicly, was tantamount to a denial of the right to freedom of religion. The ECHR dismissed their application, stating:
“While the Court would not rule out the possibility that the responsibility of the returning State might in exceptional circumstances be engaged under Article 9 of the Convention where the person concerned ran a real risk of flagrant violation of that Article in the receiving State, the Court shares the view (..) that it would be difficult to visualise a case in which a sufficiently flagrant violation of Article 9 would not also involve treatment in violation of Article 3 of the Convention”.
It is arguably very logical to relate to the ECHR in this regard, especially since the Directive and the EU Charter take into account the interpretation of the freedom of religion by this Court. But it seems to me that the interpretation of the ECHR regarding the potential of human rights standards to prohibit refoulement, has been poorly researched. Recently there has been a case of the ECHR in which it elaborates on this issue regarding the expulsion of a Jordanian national to his country of origin where he ran the risk of violation of the right to a fair trial.  This should have been taken into account since the interpretation that is formulated as to enable a minimum basis common to all the Member States, is mainly based on the interpretation of the ECHR.
In answering the third question, the Advocate General takes the view that the authority responsible for examining an application for asylum cannot reasonably expect the applicant to renounce his religious activities in order to avoid persecution. This follows from the broad interpretation of the term religion in relation to persecution: if manifesting one’s religion in public entails a fundamental part of the freedom of religion, it is not the place for authorities to demand abstaining from such a right. In principle, because few cases are known in which this has led to a refoulement-prohibition. This makes it all the more interesting to await what the Court of Justice is going to say. The answers will also be relevant for a preliminary reference that the Dutch Counscil of State has made in a few asylum cases regarding the interpretation of article 9 of the Directive, in particular whether homosexuals can be ascribed as ‘a social group’ in the sense of the provision, and whether it can be expected from them ‘to conceal some homosexual activities’.
 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12, and corrigendum OJ 2005 L 204, p. 24).
 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 UNHCR 1979, Re-edited, Geneva, January 1992, see par. 51-86.