Andre Lawrence Shepherd v Bundesrepublik Deutschland.
Date: 2015-02-26
22. It must be noted, first of all, that it is apparent from recitals 3, 16 and 17 in the preamble to Directive 2004/83 that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and that the provisions of that directive for determining who qualifies for refugee status and the content thereof were adopted to guide the competent authorities of the Member States in the application of that convention on the basis of common concepts and criteria (judgment in X and Others , C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 39 and the case-law cited).
23. Directive 2004/83 must, for that reason, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU. As is apparent from recital 10 in the preamble thereto, the directive must also be interpreted in a manner consistent with the rights recognised by the Charter of Fundamental Rights of the European Union (judgment in X and Others , EU:C:2013:720, paragraph 40).
24. Secondly, it must be noted that, under Article 2(c) of Directive 2004/83, the term ‘refugee’ refers, in particular, to a third-country national who is outside the country of his nationality ‘owing to a well-founded fear of being persecuted’ for reasons of race, religion, nationality, political opinion or membership of a particular social group and is unable or, ‘owing to such fear’, unwilling to avail himself of the ‘protection’ of that country. The national concerned must therefore, on account of circumstances existing in his country of origin, have a well-founded fear of being personally the subject of persecution for at least one of the five reasons listed in that directive and the Geneva Convention (judgment in Salahadin Abdulla and Others , C‑175/08, C‑176/08, C‑178/08 and C‑179/08, EU:C:2010:105, paragraphs 56 and 57).
25. Thirdly, it must be emphasised that Article 9 of Directive 2004/83 sets out the factors which support a finding that acts constitute persecution within the meaning of Article 1(A) of the Geneva Convention. In that regard, Article 9(1)(a) of that directive states that the relevant acts must be sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights, in particular the unconditional rights from which there can be no derogation, in accordance with Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Moreover, Article 9(1)(b) of Directive 2004/83 states that an accumulation of various measures, including violations of human rights, which is sufficiently severe to affect an individual in a manner similar to that referred to in Article 9(1)(a) of that directive, must also be regarded as amounting to persecution. It is clear from those provisions that, for an infringement of fundamental rights to constitute persecution within the meaning of Article 1(A) of the Geneva Convention, it must be sufficiently serious (judgment in X and Others , EU:C:2013:720, paragraphs 51 to 53).
26. Fourthly, it must be pointed out that, under Article 4(3)(a), (b) and (c) of Directive 2004/83, in the individual assessment of an application for international protection, account must be taken of all the relevant facts as they relate to the country of origin at the time of taking a decision on the application, of the relevant statements and documentation presented by the applicant, and of his individual position and his personal circumstances.
32. Secondly, it must be noted that the objective of Directive 2004/83, as can be seen, inter alia, from recitals 1 to 6 in the preamble thereto, is to identify persons who, forced by circumstances, genuinely and legitimately need international protection in the European Union. The context of that directive is essentially humanitarian (see, to that effect, judgment in B and D , C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 93).
37. It follows that the EU legislature intended the general context in which that service is performed to be taken into account objectively. Accordingly, situations in which the applicant would participate only indirectly in the commission of such crimes, because, inter alia, he is not a member of the combat troops but rather, for example, serves in a unit providing logistical or technical support, are not, as a matter of principle, excluded. Consequently, the fact that the person concerned, because of the merely indirect nature of that participation, could not be prosecuted under criminal law, in particular before the International Criminal Court, cannot preclude protection arising from Article 9(2)(e) of Directive 2004/83.
40. Fourthly and lastly, while in the assessment of the facts which, under Article 4(3) of Directive 2004/83, it is for the national authorities alone to carry out, acting under the supervision of the courts, in order to determine the situation of the military service concerned, certain events such as, inter alia, the past conduct of the applicant’s unit or criminal sentences passed on members of that unit may constitute indicia that it is probable the unit will commit further war crimes, such events cannot by themselves automatically establish, at the time of the applicant for refugee status’s refusal to serve, that it is likely that such crimes will be committed. Against that background, the assessment which the national authorities must carry out can be based only on a body of evidence which alone is capable of establishing, in view of the circumstances in question, that the situation of that military service makes it credible that such acts will be committed.
44. Thirdly, since the acts of persecution invoked by the applicant for refugee status must, in accordance with those provisions of Directive 2004/83, arise from his refusal to perform military service, that refusal must constitute the only means by which that applicant could avoid participating in the alleged war crimes. In that respect, the assessment that has to be carried out by the national authorities must take into account, in accordance with Article 4(3)(c) of Directive 2004/83, the fact, inter alia, that, in the present case, the applicant not only enlisted voluntarily in the armed forces at a time when they were already involved in the conflict in Iraq but also, after carrying out one tour of duty in that country, re-enlisted in those forces.
45. It follows that the fact, invoked by the referring court in its seventh question, that the applicant for refugee status did not avail himself of a procedure for obtaining conscientious objector status excludes any protection under Article 9(2)(e) of Directive 2004/83, unless that applicant proves that no procedure of that nature would have been available to him in his specific situation.
46. Having regard to all of the foregoing, the answer to the first to seventh questions is that Article 9(2)(e) of Directive 2004/83 must be interpreted as meaning that:
– it covers all military personnel, including logistical or support personnel;
– it concerns the situation in which the military service performed would itself include, in a particular conflict, the commission of war crimes, including situations in which the applicant for refugee status would participate only indirectly in the commission of such crimes if it is reasonably likely that, by the performance of his tasks, he would provide indispensable support to the preparation or execution of those crimes;
– it does not exclusively concern situations in which it is established that war crimes have already been committed or are such as to fall within the scope of the International Criminal Court’s jurisdiction, but also those in which the applicant for refugee status can establish that it is highly likely that such crimes will be committed;
– the factual assessment which it is for the national authorities alone to carry out, under the supervision of the courts, in order to determine the situation of the military service concerned, must be based on a body of evidence capable of establishing, in view of all the circumstances of the case, particularly those concerning the relevant facts as they relate to the country of origin at the time of taking a decision on the application and to the individual position and personal circumstances of the applicant, that the situation in question makes it credible that the alleged war crimes would be committed;
– the possibility that military intervention was engaged upon pursuant to a mandate of the United Nations Security Council or on the basis of a consensus on the part of the international community or that the State or States conducting the operations prosecute war crimes are circumstances which have to be taken into account in the assessment that must be carried out by the national authorities; and
– the refusal to perform military service must constitute the only means by which the applicant for refugee status could avoid participating in the alleged war crimes, and, consequently, if he did not avail himself of a procedure for obtaining conscientious objector status, any protection under Article 9(2)(e) of Directive 2004/83 is excluded, unless that applicant proves that no procedure of that nature would have been available to him in his specific situation.
Question 8