The European Court of Justice has decided that those who are unable to practice their religion openly are entitled to claim asylum. The ruling is expected to have an influence on German asylum law.
The European Court of Justice has ruled that people who are persecuted in their home countries for religious reasons have a right to apply for asylum in Europe. If their personal rights are "gravely" infringed, they must be awarded asylum status. The court's decision confirmed the ruling of a German court.
The judges said it made no difference whether the claimants were being entirely forbidden to practice their religion - even in private - or whether they were only being forbidden to practice their religion in public. For asylum claims, the important issue was how serious the consequences for the individual believer would be if they should live according to their faith.
A ruling after nine years
The case began in 2003 and 2004, when two Pakistanis fled their homeland because they were being persecuted as members of the Ahmadiyya sect. The Ahmadi see themselves as a Muslim reform movement, but the majority Sunnis deny that they are Muslims at all. The Pakistani state declared the Ahmadiyya sect no longer Muslim in 1974.
When the two men applied for asylum in Germany, they claimed to be suffering religious persecution: They said they were prohibited from declaring their faith and were not allowed to pray in public. The German asylum authorities considered that these were not adequate grounds and rejected their application.
An administrative court in Leipzig disagreed, and found that the two men were entitled to asylum in Germany. To allow the fundamental principles of the case to be addressed, the court referred it to the European Court of Justice in Luxembourg.
Private prayer is not an alternative
In its ruling on Wednesday (05.09.2012), the court rejected the argument that members of a banned religion or a non-conformist religious grouping might be able to avoid persecution by withdrawing into a private space and celebrating their religion behind closed doors.
The human rights organization Pro Asyl, which campaigns for the interests of asylum seekers, has been following the case of the two Pakistanis. Pro Asyl's deputy director, Bernd Mesovic, told DW that courts in Germany sometimes advised asylum seekers to be active only at home: "Don't let the outside world find out that you belong to the Ahmadiyya sect; then nothing will happen to you."
Pro Asyl holds the view that believers must be allowed to practice their religion publicly, since the right to witness to one's faith is part of that faith. "If this isn't allowed, and there's a threat of repression which goes beyond mere discrimination," says Mesovic, "then we call this religious persecution."
This is also the view of the European court. The decisive issue with regard to asylum is not whether people are allowed to celebrate their religion in private or in public; the decisive issue is what the believer may suffer as a result. According to Mohammed Dawood Majoka, spokesperson for the Ahmadiyya in Germany, the punishments can be draconian. "Since the religious community was declared to be a non-Muslim minority in Pakistan," he told DW, "there's been permanent persecution of the Ahmadis in Pakistan."
The Ahmadis do not accept the dominant Sunni interpretation of the Koran, and that means that they are always in danger of being accused of blasphemy. Majoka points out that this can even apply if they merely use the traditional Muslim greeting or recite the Muslim creed. And blasphemy can be punished with the death penalty. Nobody has been put to death as yet, says Majoka, but adds that there are Ahmadis in prison waiting for the death sentence to be carried out. "They remain ten or eleven years in prison on death row, without knowing when the final decision will come."