Bahtiyar Fathi v Predsedatel na Darzhavna agentsia za bezhantsite.
Date: 2018-10-04
46


Moreover, a Member State with which an application for international protection has been lodged is required to follow the procedures laid down in Chapter VI of that regulation for the purposes of determining the Member State responsible for examining that application (see, to that effect, judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 58).
48


Accordingly, the mechanisms set up by the Dublin III Regulation to collect the necessary information in the context of that process are intended to be applied after an application for international protection has been lodged. Moreover, Article 4(1) of that regulation expressly provides that it is after such an application has been lodged that the applicant must be informed, in particular, of the criteria for determining the Member State responsible, the organisation of a personal interview and the possibility of submitting information to the competent authorities (see, to that effect, judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 86 and 87).
50


As to the question whether, in circumstances such as those at issue in the main proceedings, that process must be concluded by an express decision establishing, on the basis of the criteria laid down in that regulation, that that Member State is responsible for undertaking such an examination, it is necessary to take into account not only the wording of Article 3(1) of the Dublin III Regulation, but also its context and the general scheme of the rules of which it forms part and the objectives pursued thereby (judgment of 5 July 2018, X, C‑213/17, EU:C:2018:538, paragraph 26).
53


Further, Article 17 of the Dublin III Regulation, headed ‘Discretionary clauses’, provides specifically, in paragraph 1, that, by way of derogation from Article 3(1) of that regulation, each Member State may decide to examine an application for international protection lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in that regulation, and that that Member State becomes the Member State responsible and is to assume the obligations associated with that responsibility. The Court has noted in that regard that the aim of that option is to allow each Member State to decide, in the exercise of its sovereignty, for political, humanitarian or practical considerations, to agree to examine an application for asylum even if it is not responsible under those criteria (see, to that effect, judgment of 30 May 2013, Halaf, C‑528/11, EU:C:2013:342, paragraph 37).
55


Third, one of the objectives pursued by the Dublin III Regulation is to introduce organisational rules governing relations between Member States for the purpose of determining the Member State responsible and, as is apparent from recitals 4 and 5 thereof, to ensure rapid determination of the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of processing applications for international protection expeditiously (see, to that effect, judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 57).
63


The Court has emphasised, in that regard, that the words ‘shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law’ must, in order not to deprive them of their ordinary meaning, be interpreted as meaning that the Member States are required, by virtue of Article 46(3) of Directive 2013/32, to order their national law in such a way that the processing of the appeals referred to includes an examination, by the court or tribunal, of all the facts and points of law necessary in order to make an up-to-date assessment of the case at hand (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 110).
64


In that regard, the expression ‘ex nunc’ emphasises the court or tribunal’s obligation to make an assessment that takes into account, should the need arise, new evidence which has come to light after the adoption of the decision under appeal. For its part, the adjective ‘full’, used in Article 46(3) of Directive 2013/32, confirms that the court or tribunal is required to examine the evidence which the determining authority took into account or could have taken into account (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraphs 111 and 113).
65


As the Court has also stated, the obligation imposed in Article 46(3) of Directive 2013/32 must be interpreted in the context of the procedure for the examination of applications for international protection as a whole, as governed by that directive (see, to that effect, judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 42), as the legal remedies established specifically in connection with the application of the Dublin III Regulation are set out in Article 27 of that regulation, which is also apparent from recital 19 of the same regulation.
78


The Court has already had occasion to point out, with regard to the interpretation of Directive 2004/83, that that provision gives a broad definition of ‘religion’ which encompasses all its constituent components, be they public or private, collective or individual (see, to that effect, judgment of 5 September 2012, Y and Z, C‑71/11 and C‑99/11, EU:C:2012:518, paragraph 63).
81


Moreover, as regards the concept of ‘religion’ referred to in Article 10 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which, as is apparent from recital 16 of Directive 2011/95, must be taken into account when interpreting that directive, the Court has emphasised the broad understanding of that concept, covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public, as religion may be expressed in either form (see, to that effect, judgments of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C‑426/16, EU:C:2018:335, paragraph 44, and of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 47 and the case-law cited).
84


However, the applicant must duly substantiate his claims as to his alleged religious conversion, since the statements and no more relating to his religious beliefs or membership of a religious community constitute merely the starting point in the process of assessment of the facts and circumstances envisaged under Article 4 of Directive 2011/95 (see, by analogy, judgments of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 49, and of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 28).
85


In that regard, it is clear from the very wording of Article 4(1) of that directive that the Member States may consider it to be the applicant’s duty to submit as soon as possible all elements needed to substantiate the application for international protection (see, by analogy, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 50).
87


Those conditions include, in particular, the fact that the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to his case, as well as the fact that the applicant’s general credibility has been established (see, to that effect, judgment of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 33). Where necessary, the competent authority must also take account of explanations provided regarding a lack of evidence, and of the applicant’s general credibility (judgment of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 41 and the case-law cited).
94


As the Court has noted, it is apparent from the wording of Article 9(1) of that directive that a prerequisite of the acts in question being regarded as acts of persecution is that there must be a ‘severe violation’ of religious freedom that has a significant effect on the person concerned (judgment of 5 September 2012, Y and Z, C‑71/11 and C‑99/11, EU:C:2012:518, paragraph 59).
95


That requirement is met where the applicant for international protection, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of that directive (see, to that effect, judgment of 5 September 2012, Y and Z, C‑71/11 and C‑99/11, EU:C:2012:518, paragraph 67).
96


In the present case, it must be considered that the fact that legislation, such as the law on apostasy at issue in the main proceedings, imposes the death penalty or a custodial sentence, is capable, in itself, of constituting an ‘act of persecution’, within the meaning of Article 9(1) of Directive 2011/95, provided that such penalties are actually applied in the country of origin which adopted such legislation (see, by analogy, judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 56).
97


Such penalties constitute punishment which is disproportionate or discriminatory within the meaning of Article 9(2)(c) of that directive (see, by analogy, judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 57).
98


As the Advocate General has observed, in essence, in point 61 of his Opinion, in cases concerning the criminalisation of acts related to the exercise of the freedom of religion, it is for the authorities of the Member States which are responsible for examining applications for international protection to determine, on the basis of the applicant’s statements and any documents which he may submit, or any information from reliable sources, whether, in the applicant’s country of origin, the death penalty or custodial sentence provided for by such legislation is applied in practice. It is in the light of that information that the national authorities must decide whether it should be held that the applicant has in fact a well-founded fear of being persecuted on return to his country of origin (see, by analogy, judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraphs 59 and 60).