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.