SEPARATE OPINION OF JUDGE SAJÓ

I share the conclusions of the separate opinion of my fellow judges Ziemele, De Gaetano, Pinto de Albuquerque and Wojtyczek.

I am of the view that the national authorities have a positive obligation to assess an asylum applicant’s situation from the perspective of Articles 2 and 3 of the Convention of their own motion, relying on the available information. They should have known that the applicant would face the death penalty if deported to Iran. They should have known this in view of the personal information provided by the applicant himself. There is considerable material on the persecution of non-Muslims, including Christians, in present-day Iran. However, the national authorities did not review the internationally available information and documentation, and that failure per se rendered their decision contrary to the rule of law and entailed a violation of the procedural requirements of Articles 2 and 3. The resulting enforceable deportation order thus put the applicant’s life at immediate risk.

Furthermore, I would have preferred a separate analysis of the extent to which the Convention right to manifest one’s religion freely (that is, in the present case, rather than hiding one’s Christian faith in Iran, as was suggested by the domestic authorities) has extraterritorial application.

JOINT SEPARATE OPINION OF JUDGES ZIEMELE, DE GAETANO, PINTO DE ALBUQUERQUE AND WOJTYCZEK

1. In our view, there has been a violation of Articles 2 and 3 of the European Convention on Human Rights (“the Convention”) on account of the deportation order issued in respect of the applicant, on both substantive and procedural grounds. Procedurally, we find that the asylum proceedings were affected by serious shortcomings which prejudiced the final domestic decision. Substantively, we find that the national courts did not comply with the Convention standard when they held that the applicant would not be at risk, as a result of his conversion to Christianity, if deported to Iran. Since we do not dispute that the applicant would not now be at risk in Iran on account of his political beliefs, the scope of this separate opinion is limited to discussing the compatibility or otherwise of the domestic deportation order and proceedings with the Convention in the light of his religious conversion.

Victim status

2. Although the validity of the deportation order expired on 8 June 2015, we are of the view that the applicant’s victim status remains unaffected, since he has not been granted a residence permit in Sweden, and the result of any new asylum proceedings that he might bring is uncertain. Had the Court discontinued the examination of the applicant’s case, the Chamber judgment would have become operative, with the strong possibility of its being regarded uncritically in any future proceedings by the national authorities and courts. In view of the respondent Government’s tooth and nail resistance to the applicant’s complaints at the level of both the Chamber and the Grand Chamber, the Chamber judgment would have palpably increased the risk of the applicant’s deportation in clear violation of his fundamental human rights.

The procedural violation

3. It is undisputed that in the original asylum proceedings, the applicant specifically stated that he did not want to rely on his conversion to Christianity as a ground for asylum. The crux of the case is then whether, since the authorities were aware of the applicant’s conversion, they should nevertheless, of their own motion, have carried out an assessment of that risk as well.

We are of the view that the national authorities and courts had an obligation to assess, of their own motion, the applicant’s need of international protection in the light of all the circumstances that were known or could have been known to them. The national authorities did not have the choice of not considering a known risk under Article 3, for religious reasons, simply because the asylum-seeker did not actively pursue it in the domestic proceedings or did not fully understand the consequences of not formally relying on it as a ground for asylum. Instead, the national authorities preferred to address the applicant’s situation as if he had renounced any reliance on the risk resulting from his religious conversion.

We do not accept, as a matter of fact, that the applicant did renounce any reliance on such risk. The file does not provide evidence of any informed and voluntary waiver on the part of the applicant. Furthermore, taking into account the absolute nature of the prohibition of refoulement and the non-derogable rights in Articles 2 and 3 of the Convention, such a waiver, even if it were proven, which was not the case, would not have been a relevant consideration. The national authorities and courts, therefore, had an obligation to consider the risk to the applicant, following his conversion, in the event of his return to Iran. They failed to do this.

4. In actual fact, the Migration Board noted that the applicant had not initially wished to invoke his conversion as a ground for asylum and had stated that his faith was a private matter and that therefore he was not in need of protection in Sweden [5] . Subsequently, the Migration Court did not even refer to this issue, in view of the fact that the applicant was no longer relying on his religious views as a ground for persecution [6] . In spite of the applicant’s explicit argument based on the risk resulting from his religious beliefs, as used in his request for leave to appeal to the Migration Court of Appeal, the appellate court ignored the argument and refused the applicant’s request for leave to appeal [7] . Later on, when seeking the re-examination of his case, the applicant insisted on the danger to life, attendant upon conversion from Islam to another religion, that he would face in Iran [8] . Again the Migration Board dug in its heels and stated that the applicant had initially given up the idea of invoking his new religious beliefs and that he was therefore precluded from raising the issue as if it were a new circumstance [9] .

The Migration Board’s position, which was confirmed by the Migration Court and the Migration Court of Appeal [10] , was subsequently rejected by the 2013 “general legal position” of the Director General for Legal Affairs at the Swedish Migration Board concerning the methodology for assessing the reliability and credibility of applications for international protection. This document in effect provides that the initial burden of proof rests on the applicant, stressing at the same time that the responsibility for the assessment of an application lies jointly with the applicant and the examining authority [11] . In this connection, the said “general legal position” is consistent with the burden of proof standards set by this Court [12] and by the Office of the United Nations High Commissioner for Refugees (UNHCR) [13] .

5. Even though they accepted the genuine character of the applicant’s conversion, the national authorities and courts proceeded on the assumption that the applicant would not be at risk if deported to Iran because he could change his social behaviour in order to keep his new faith a strictly private matter. In other words, the Swedish authorities and courts presupposed that the applicant would, or indeed should, refrain in Iran from taking part in church services, prayer meetings and social activities, unlike what he had been doing in Sweden. Such position was explicitly stated by the Migration Board, which considered that to pursue his faith in private was not considered to be a plausible reason for believing that he would risk persecution upon return [14] .

Neither the Migration Court nor the Migration Court of Appeal rejected this position. Yet some months later the Director General for Legal Affairs at the Swedish Migration Board delivered a new “general legal position”, of 12 November 2012, concerning religion as grounds for asylum, which clearly affirmed that a converted person should not “be compelled to hide his or her faith solely in order to avoid persecution” [15] . Coincidentally, the Grand Chamber of the Court of Justice of the European Union (CJEU) had just delivered its judgment of 5 September 2012 in Bundesrepublik Deutschland v. Y. and Z (C ‑ 71/11 and C-99/11, EU:C:2012:518), holding that

“the applicant’s fear of being persecuted is well founded if, in the light of the applicant’s personal circumstances, the competent authorities consider that it may reasonably be thought that, upon his return to his country of origin, he will engage in religious practices which will expose him to a real risk of persecution. In assessing an application for refugee status on an individual basis, those authorities cannot reasonably expect the applicant to abstain from religious practices.”

Both the Director General’s general legal position and the CJEU judgment were based on the long-standing UNHCR Guidelines on International Protection regarding Religion-Based Refugee Claims, of 28 April 2004, according to which one should not be compelled to hide, change or renounce one’s religious beliefs in order to avoid persecution [16] .

6. We agree with this principled position, which is totally in line with the Court’s well-established case-law on the State’s duty of neutrality in religious matters and the incompatibility of this duty with any power on the State’s part to assess the legitimacy of religious beliefs or the ways and forms in which those beliefs are expressed [17] . As the United Kingdom Supreme Court ruled in a case where the claim for asylum was based on homosexuality, using a convincing historical allusion, to hold otherwise would countenance the return of Anne Frank to Nazi-occupied Netherlands, had she managed to escape from there, on the basis that she could have hidden in the attic and therefore could have successfully avoided the possibility of Nazi detention [18] . The Supreme Court held that such a position would be “absurd and unreal”. Thus, we cannot accept the respondent State’s assumption that the applicant would not be persecuted in Iran because he could engage in a low-profile, discreet or even secret practice of his religious beliefs. Not only is the external manifestation of one’s faith an essential element of the very freedom protected by Article 9 of the Convention, but at least – and certainly – in the case of Christianity, bearing external witness to that faith is “an essential mission and a responsibility of every Christian and every Church” [19] .

Therefore, we conclude that there has been a procedural violation of Articles 2 and 3 of the Convention on account of the serious shortcomings affecting the domestic proceedings and the ensuing final decision.

The substantive violation

7. Under the Convention, an asylum-seeker cannot be subjected to refoulement to his or her country of origin or any other country where he or she risks incurring serious harm caused by any identified or unidentified person or public or private entity. The act of refoulement may consist in expulsion, deportation, removal, extradition, formal or informal transfer, “rendition”, rejection, refusal of entry or any other measure which would result in compelling the person to remain in or return to his or her country of origin. The risk of serious harm may result from foreign aggression, internal armed conflict, extrajudicial killing, enforced disappearance, death penalty, torture, inhuman or degrading treatment, forced labour, trafficking in human beings, persecution, trial based on a retroactive or indeterminate criminal law or on evidence obtained by torture or inhuman and degrading treatment, thus from a “flagrant violation” of the essence of any Convention right in the destination State (direct refoulement ) or from further delivery of the person by the destination State to a third State where there is such a risk (indirect refoulemen t ). We note that the prohibition of refoulement is a treaty rule in respect of which no derogations are permitted and no reservations are admitted [20] . Furthermore, the prohibition of refoulement is a principle of customary international law, binding on all States, even those which are not parties to the United Nations Refugee Convention or any other treaty for the protection of refugees. The Court has clearly recognised the principle of non-refoulement as a binding rule of international law in, among other cases, Hirsi Jamaa and Others v. Italy [21] .

8. Born in Iran, the applicant became a Christian soon after entering Sweden, at least by December 2009. His conversion is sufficiently borne out by his baptism certificate of 31 January 2010, the declaration of 15 March 2010 from a pastor in Sweden certifying that the applicant had been a member of his congregation since December 2009 and had been baptised, and the letter of 13 April 2011 from his new congregation, which stated that the applicant had converted shortly after his arrival in Sweden, that he had shown with honest intent and interest that he was willing to learn more about his new faith and that he took part in church services, prayer meetings and social activities [22] . The Government did not dispute any of this.

9. The applicant’s conversion to Christianity is a criminal offence punishable by death in Iran [23] . In addition to the risk of social persecution as a Christian [24] , the applicant risks criminal prosecution for the crime of apostasy [25] . Although the Iranian State has never codified the crime of apostasy, it authorises the enforcement of certain Islamic laws even when the crime is not specifically mentioned in the Criminal Code. Since apostasy is not explicitly proscribed by the Iranian Criminal Code and there are many different interpretations of Islamic law on apostasy, judges have the discretion to adjudicate apostasy cases based on their own understanding of Islamic law [26] , which they can impose invoking Article 167 of the Iranian Constitution [27] .

Moreover, the crime of apostasy is punishable even when there is no social unrest, which further aggravates the intrinsically introspective character of the criminal punishment. Furthermore, the crime of apostasy applies differently to men and women, Muslims and non-Muslims, Shia and Sunni Muslims, and Muslims born to Muslim parents and Muslims born to non-Muslim parents. Members of other religious communities and non ‑ believers may become Muslims, without fearing any prosecution. Women apostates are not liable to the death penalty as men are.

10. In our view, the criminalisation of apostasy breaches international human rights law [28] . Such punishment is inherently arbitrary, in so far as the criminalisation of the act of changing one’s religion violates the right to freedom of religion and it effectively coerces Muslim citizens to refrain from adopting a different faith. As Article 18 of the Universal Declaration of Human Rights puts it, freedom of religion encompasses necessarily the “freedom to change [one’s] religion or belief” [29] . Furthermore, as a matter of law, both the objective and subjective requirements for the criminal punishment of the act of apostasy are uncertain and ambiguous, as are the penalties applicable, the differences of treatment between the categories of legal subjects being discriminatory.

11. Finally, the commission of such an offence may be proven in accordance with evidential rules which are at odds with the basic tenets of equality and fairness. Not only do the evidential rules discriminate between testimony provided by male and female, or by Muslim and non-Muslim, witnesses, worse still, they admit the use of the private “knowledge of the judge” to ground a criminal conviction. In the light of the above, prosecution and trial for apostasy as a criminal offence represents a flagrant denial of justice [30] .

12. In sum, the order for the applicant’s deportation to Iran, where he could be tried under the above-mentioned criminal and procedural law, equates to a violation of principles deeply enshrined in the universal legal conscience. The deportation order subjected him to the serious risk of being tried under a criminal law in flagrant breach of the right to freedom of religion and the principle of criminal legality, and in a criminal trial which would constitute a flagrant denial of justice. The implementation of such a deportation order would amount to a grave violation of the principle of non-refoulement .

Consequently, we conclude that there has been a substantive violation of Articles 2 and 3 of the Convention on account of the deportation order issued against the applicant. In the light of the above, we further add that, rebus sic stantibus , the respondent State should not deport the applicant to Iran.

[1] . See also Article 5 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.

[2] . See, among many other decisions, Court of Appeal of England and Wales, 28 October 1999, Danian v. Secretary of State for the Home Department [1999] EWCA Civ 3000; decision of the Helsinki Administrative Court, 25 Oct 2010, 10/1389/1; decision of the Irish High Court, 21 January 2011, H.M. v. Minister for Justice, Equality, Law Reform , [2011] IEHC 16; and decision of the Swedish Migration Court, 1 March 2011, UM 20938-10 (all reported at www.asylumlawdatabase.eu/en).

[3] . Article 46 § 3 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.

[4] . See also, as to the need for such investigation, the decision of the Swedish Migration Court of Appeal, 18 September 2006, UM 122-06 (www.asylumlawdatabase.eu/en).

[5] . See paragraph 21 of the present judgment.

[6] . See paragraph 28 of the present judgment.

[7] . See paragraphs 30-31 of the present judgment.

[8] . See paragraph 32 of the present judgment.

[9] . See paragraph 33 of the present judgment.

[10] . See paragraphs 35-36 of the present judgment.

[11] . See paragraph 47 of the present judgment.

[12] . R.C. v. Sweden , no. 41827/07, § 53, 9 March 2010.

[13] . UNHCR, Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998, § 6; and 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, 1992, §§ 196-97.

[14] . See paragraph 21 of the present judgment.

[15] . See paragraph 46 of the present judgment.

[16] . See paragraph 52 of the judgment above.

[17] . Eweida and Others v. the United Kingdom , nos. 48420/10 and 3 others, § 81, ECHR 2013, and the references indicated therein.

[18] . HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department , [2010] UKSC 31, United Kingdom Supreme Court, 7 July 2010, § 107.

[19] . Kokkinakis v. Greece , 25 May 1993, §§ 31 and 48, Series A no. 260-A.

[20] . Articles 33 and 42 § 1 of the 1951 Geneva Convention relating to the Status of Refugees, Article VII § 1 of the 1967 Protocol and Article 53 of the Vienna Convention on the Law of Treaties.

[21] . Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 134, ECHR 2012, which refers to the UNHCR Note on International Protection of 13 September 2001 (A/AC.96/951, § 16).

[22] . The Migration Court did not question the fact that the applicant professed the Christian faith (paragraph 24 of the present judgment).

[23] . The last convert to Christianity in Iran to be judicially convicted of apostasy and sentenced to death was Mehdi Dijab in 1994, although the sentence was not carried out. This absence of recent punishment does not mean that there has been no execution of Christian converts outside the judicial system. For example, Mehdi Dijab and other Protestant pastors were murdered outside the court system. According to international sources, the last death penalty for apostasy that was actually carried out occurred in 1990 (see, for example, the Law Library of Congress, Global Legal Research Center, “Laws Criminalizing Apostasy in Selected Jurisdictions”, May 2014). Other non-Christian “apostates” have faced the death penalty, like Seyed Ali Gharabat, a former commander of the Islamic Revolutionary Guard Corps who was convicted of apostasy and executed in 2011, Hasan Yousefi Eshkevari, a former member of parliament who was convicted of apostasy and sentenced to death in 2000 but eventually released in 2005, and Hashem Aghajari, a university professor found guilty of apostasy and sentenced to death in 2002 but whose sentence was overturned by the Supreme Court in 2004.

[24] . See the passage cited in paragraph 57 of the present judgment: “… any convert who wishes to practice his or her faith upon return would face serious risk”. The situation for persons converted to Christianity entails monitoring by informants and the Iranian intelligence service, reporting by family and acquaintances, search of home churches and detention of home-church members. The most authoritative international documents on the human rights situation in Iran and the risk posed to Christian converts in this country are the Reports of the Human Rights Council’s appointed Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, of 18 March 2014, A/HRC/25/61, which specifically refers to the crime of apostasy in its paragraph 41, and of 12 March 2015, A/HRC/28/70, which states in paragraph 52: “As of 1 January 2015, at least 92 Christians remain in detention in the country allegedly due to their Christian faith and activities. In 2014 alone, 69 Christian converts were reportedly arrested and detained for at least 24 hours across Iran. Authorities reportedly continued to target the leaders of house churches, generally from Muslim backgrounds. Christian converts also allegedly continue to face restrictions in observing their religious holidays.” The Human Rights Committee itself has also referred to this problem in its Concluding Observations on Iran, of 29 November 2011, CCPR/C/IRN/CO/3, paragraph 23. In addition to the documents referred to in the judgment, the persecution of Christians and especially of Muslims having converted to Christianity has been thoroughly analysed in the following documents: Austrian Red Cross Accord (Austrian Center for Country of Origin and Asylum Research and Documentation), “Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities”, COI Compilation, September 2015; Human Rights Watch Country Summary: Iran, January 2015; United States Commission on International Religious Freedom Annual report on Iran, 2015; United States Department of State, Bureau of Democracy, Human Rights and Labor, International Religious Freedom Report for 2015: Iran; United Kingdom Home Office, Country Information and Guidance, “Iran: Christians and Christian Converts”, December 2014; Law Library of the United States Congress, Global Legal Research Center, “Laws Criminalizing Apostasy in Selected Jurisdictions”, May 2014; Brian O’Connell, “Constitutional apostasy: the ambiguities in Islamic law after the Arab Spring”, in Northwestern Journal on International Human Rights , Fall 2012; United States Commission on International Religious Freedom, “The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Majority Muslim Countries and Other OIC Members”, 2012; Kamran Hashemi, Religious Legal Traditions, International Human Rights Law and Muslim States , Martinus Nijhoff Publishers, 2008; and European Centre for Law and Justice and American Center for Law and Justice, “International Legal Protection of the Right to Choose One’s Religion and Change One’s Religious Affiliation: Iran”, September 2007.

[25] . See the 2014 Iran Human Rights Documentation Center’s report, “Apostasy in the Islamic Republic of Iran”, which details the jurisprudential as well as the legal context in which apostasy cases are prosecuted in Iran. The report takes an in-depth look at a number of apostasy cases involving a diverse range of defendants, and provides an account of the legal and religious issues raised in each case. It is also relevant to note that some prominent national courts have already granted refugee status to Iranian Christian converts on the basis of the fear of persecution, like the New Zealand Immigration and Protection Tribunal ( AP(Iran ), (2011) NZIPT 800012, 29 September 2011), the Australian Refugee Review Tribunal ( RRT Case no. 1002841 , (2010) RRTA 681), the Court of Appeal of England and Wales ( MM (Iran) v. Secretary of State for the Home Department , [2010] EWCA Civ 1457, 17 November 2010), and the Canadian Federal Court ( Mostafa Ejtehadian v. Canada (Minister of Citizenship and Immigration) , 2007 FC 158, 12 February 2007).

[26] . On the punishment of apostasy according to Islamic law, see Ahmed Akgündüz, Islamic Public Law , IUR Press, 2011, pp. 370-77.

[27] . Article 167 of the Iranian Constitution reads: “The judge is bound to endeavour to judge each case on the basis of the codified law. In case of the absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa . He, on the pretext of the silence of or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain from admitting and examining cases and delivering his judgement.”

[28] . The same stance has been taken by the Report of the United Nations Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, A/HRC/22/51, 24 December 2012, which recommends that “States should repeal any criminal law provisions that penalize apostasy”, giving on page 17 the example of Pastor Youcef Nadarkhani who was found guilty of apostasy in Iran and given a death sentence in 2010, but later sentenced for a lesser offence. It further concludes: “The Special Rapporteur would like to reiterate that extraditions or deportations which are likely to result in violations of freedom of religion or belief may themselves amount to a violation of human rights. In addition, such deportations violate the principle of non-refoulement , as enshrined in article 33 of the 1951 Geneva Convention relating to the Status of Refugees.” The anti-criminalisation position has always been the position of the Human Rights Committee, ever since General Comment 22 on the right to freedom of thought, conscience and religion, CCPR/C/21/Rev.1/ADD.4, 27 September 1993, § 5: “Article 18(2) bars coercions that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert.”

[29] . In fact, even the Koran itself guarantees freedom of religion (“Duress is not permissible in religion, as the path has become clear from falsehood” (Koran, 2:256)) and no verse in the Koran prescribes punishment for conversion to other faiths.

[30] . Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the sixteenth to the twenty-first century , Cambridge University Press, 2005, pp. 177-79, and Abdullah Saeed and Hassan Saeed, Freedom of religion, apostasy and Islam , Ashgate, 2004, pp. 99-108.