Newsroom / News / Media / Info Magazine LGP NEWS 01/2021 / Dangerous change of faith

Dangerous change of faith

Dangerous change of faith

The European Court of Human Rights unanimously ruled that Switzerland would be violating Art. 3 ECHR by repatriating an Afghan refugee who had converted from Islam to Christianity. This is because the toler- ance of many states is limited only to their own guiding culture.  

The European Court of Human Rights (ECtHR, ref.: 32218/17) expressed its views on this issue in a very fundamental way in its judgment of 5 November 2019 against Switzerland. The judgement (the full text is currently only available in French) was made unanimously, including the vote cast by Swiss ECHR judge Helen Keller, and may well become the basis for European case law in the years to come. An immigrant was to be deported to Afghanistan, despite changing his religion, and thus despite the danger to life and limb that would result. In fact, he was not to be sent to his home province but rather to Kabul, where the Federal Administrative Court of St. Gallen believed that he would be able to keep his change of religion secret. The ECHR ruled against this, and I believe that this will be the overarching guiding principle for a new jurisprudence: 

“No one may be forced by the state to live with a lie and potentially break off contact with other people, especially relatives, in order to avoid being discovered and persecuted. Deportation (‘expulsion’ in Swiss legal terminology) would violate Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman and degrading punishment. No one could be expected to live their new faith in secret and to be in constant fear that their new religious affiliation would be discovered after all these efforts.” 

This statement applies to more than just religious beliefs, given that tolerance towards different sexual orientations is still very limited in many countries (e.g. Saudi Arabia and Russia), and that professed atheists are not tolerated in many countries either (e.g. Egypt). On the other hand, alcohol dependency, for example, will not be an argument against deportation to countries like Iran, because it is a treatable disease and the consumption of alcohol is not a human right. 

The court’s ruling also requires a change in case law in Austria. Unlike Germany, Austria still carries out deportations to Afghanistan and on 8 May 2018 had decided that Article 3 had not been compromised, despite a documented change of religion confirmed by the Church (Federal Administrative Court file no.: W105 2185019-1). The court weighed up personal interests against the public interest, believing that this revealed that the public interest in the orderly application of the law on foreign nationals and the maintenance of public safety and order (although no risk to the latter was expounded upon, at any point, by the applicant, a pious man with a professional occupation) carried more weight than the impact on the individual’s life situation following the decision to deport him within 14 days. 

The ping-pong between the Constitutional Court (which stops deportations and leaves matters of asylum unchecked, as they are not outstanding issues relating to the constitution) and the Federal Administrative Court (which denies asylum and orders deportations, most recently on 7 May 2019, file no: W154 217 0514-2) is undignified from a legal perspective, and must come to an end*. The question raised by Benjamin Pernack in 2018 in his dissertation ‘Judges as Religious Guardians?’ is thus answered comprehensively by the ECHR to the effect that a change of faith cannot be a matter of a judicial review. Instead, it must be a matter of protecting human dignity against state intervention, even if there is a risk posed by regional traditions and an unilateral, disrespectful ‘guiding culture’. 

The Bavarian Constitutional Court also followed this directly in a ruling of 3 December 2019, voiding the obligation of immigrants to adhere to the region’s dominant culture as laid down by the Bavarian state government in the so-called ‘Integration Act’ (the opposition called it the ‘Exclusion Act’), deeming it inadmissible. A truly good piece of news for 2021! 

* see the detailed documentation relating to the 2751 decisions by the Federal Administrative Court, including numerous positive examples from 2018 by Mag. Norbert Kittenberger, Austrian case law on asylum applications made by Afghan citizens in 2018 


AUTHOR:

Wolf-Dietrich Freiherr von Fircks-Burgstaller, Attorney-at-Law and Senior Expert Counsel at LANSKY, GANZGER + partner

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