Case C‑472/13

Andre Lawrence Shepherd

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Bayerisches Verwaltungsgericht München)

‛Reference for a preliminary ruling — Area of freedom, security and justice — Asylum — Directive 2004/83/EC — Article 9(2)(b), (c), and (e) — Minimum standards for the qualification and status of third-country nationals or stateless persons as refugees — Conditions for obtaining refugee status — Acts of persecution — Criminal penalties for a member of the armed forces of the United States for refusing to serve in Iraq’

Summary — Judgment of the Court (Second Chamber), 26 February 2015

1. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Conditions for granting refugee status — Acts of persecution — Prosecution or punishment of a member of the armed forces for refusal to perform military service in a conflict — Circumstances required

   (Council Directive 2004/83, Art. 9(2)(e))

2. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Conditions for granting refugee status — Acts of persecution — Disproportionate or discriminatory prosecution or punishment — Criminal penalties for a member of the armed forces of the United States for refusing to serve in Iraq — Not disproportionate or discriminatory — Verification by the national authorities

   (Council Directive 2004/83, Art. 9(2)(b),(c) and (e))

1.  Article 9(2)(e) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted 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.

   (see paras 30, 31, 33-43, 45, 46, operative part)

2.  In the event that the national authorities responsible for examining the application for refugee status of a person having refused to perform military service consider that it is not established that the military service he refused to perform would have included the commission of war crimes for the purpose of Article 9(2)(e) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, Article 9(2)(b) and (c) of that directive must be interpreted as meaning that it does not appear that the measures incurred by the asylum seeker, such as the imposition of a prison sentence or discharge from the army, may be considered, having regard to the legitimate exercise, by the State concerned, of its right to maintain an armed force, so disproportionate or discriminatory as to amount to acts of persecution for the purpose of those provisions. It is, however, for the national authorities to ascertain whether that is indeed the case.

   (see paras 48, 56, operative part 2)

Case C‑472/13

Andre Lawrence Shepherd

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Bayerisches Verwaltungsgericht München)

‛Reference for a preliminary ruling — Area of freedom, security and justice — Asylum — Directive 2004/83/EC — Article 9(2)(b), (c), and (e) — Minimum standards for the qualification and status of third-country nationals or stateless persons as refugees — Conditions for obtaining refugee status — Acts of persecution — Criminal penalties for a member of the armed forces of the United States for refusing to serve in Iraq’

Summary — Judgment of the Court (Second Chamber), 26 February 2015

1. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Conditions for granting refugee status — Acts of persecution — Prosecution or punishment of a member of the armed forces for refusal to perform military service in a conflict — Circumstances required

   (Council Directive 2004/83, Art. 9(2)(e))

2. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Conditions for granting refugee status — Acts of persecution — Disproportionate or discriminatory prosecution or punishment — Criminal penalties for a member of the armed forces of the United States for refusing to serve in Iraq — Not disproportionate or discriminatory — Verification by the national authorities

   (Council Directive 2004/83, Art. 9(2)(b),(c) and (e))

1.  Article 9(2)(e) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted 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.

   (see paras 30, 31, 33-43, 45, 46, operative part)

2.  In the event that the national authorities responsible for examining the application for refugee status of a person having refused to perform military service consider that it is not established that the military service he refused to perform would have included the commission of war crimes for the purpose of Article 9(2)(e) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, Article 9(2)(b) and (c) of that directive must be interpreted as meaning that it does not appear that the measures incurred by the asylum seeker, such as the imposition of a prison sentence or discharge from the army, may be considered, having regard to the legitimate exercise, by the State concerned, of its right to maintain an armed force, so disproportionate or discriminatory as to amount to acts of persecution for the purpose of those provisions. It is, however, for the national authorities to ascertain whether that is indeed the case.

   (see paras 48, 56, operative part 2)