EZ v Bundesrepublik Deutschland.
Date: 2020-11-19
20


Directive 2011/95 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 16 thereof, the directive must also be interpreted in a manner consistent with the rights recognised by the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 23 and the case-law cited).
21


In the second place, it must be noted that, under Article 2(d) of Directive 2011/95, the term ‘refugee’ refers, in particular, to a third-country national who is outside the country of 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 or herself of the ‘protection’ of that country. The national concerned must therefore, on account of circumstances existing in his or her 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 (see, to that effect, judgment of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 24 and the case-law cited).
22


In the third place, it must be emphasised that Article 9 of Directive 2011/95 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 their 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 2011/95 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 (see, to that effect, judgment of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 25 and the case-law cited).
27


According to Article 9(2)(e) of Directive 2011/95, the acts of persecution to which a person seeking refugee status under that provision claims to be exposed must arise from his or her refusal to perform military service. Consequently, that refusal must constitute the only means by which the person concerned could avoid participating in the crimes referred to in Article 12(2)(a) of that directive (see, to that effect, judgment of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 44).
28


It follows that the fact that the applicant for refugee status did not avail himself or herself of a procedure for obtaining the status of conscientious objector excludes any protection under Article 9(2)(e) of Directive 2011/95, unless that applicant proves that no procedure of that nature would have been available to him or her in his or her specific situation (see, to that effect, judgment of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 45).
34


It is for the national authorities alone to assess, under the supervision of the courts, whether the performance of military service by an applicant seeking refugee status on the basis of Article 9(2)(e) of Directive 2011/95 would necessarily or, at least, very probably lead that applicant to commit the crimes referred to in Article 12(2) of that directive (see, to that effect, judgment of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 40).
35


That factual assessment 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 overall situation in question makes it credible that the alleged crimes would be committed (see, to that effect, judgment of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 46).
36


In addition, the Court has found that situations in which the applicant would participate only indirectly in the commission of such crimes, because, inter alia, he or she 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 (see, to that effect, judgment of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 37).
52


Article 4(1) of that directive provides that Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. However, the statements made by an applicant for international protection constitute merely the starting point in the process of assessment of the facts and circumstances carried out by the competent authorities (see, to that effect, judgment of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 28). The same provision states that it is the duty of the Member State, in cooperation with the applicant for international protection, to assess the relevant elements of his or her application.