CJEU - AG Opinion Shepherd Case C‑472/13 Andre Lawrence Shepherd v Bundesrepublik Deutschland, 11 November 2014

Monday, November 17, 2014

Facts of the case: The background of the case relates to an American citizen who had applied for asylum in Germany on the basis of Article 9(2)(e) of the Qualification Directive(QD). His refusal to continue work in the US armed forces serving in Iraq as a mechanic was spawned from a belief that continued participation would lead to the commission of war crimes. His claim thus turns on the fear of persecution within the meaning of Article 9(2)(e) of the QD, the reason for his persecution being that he belongs to a social group within the meaning of 10(1)(d) QD. The referring court decided to stay proceedings and ask the court a series of questions relating to the criteria needed to trigger Article 9(2)(e), namely direct military performance or acts outside of actual combat; the type of crime; the probability of the crime occurring; prosecution before the International Criminal Court (ICC) and lastly whether a prison sentence and social ostracism for desertion may in itself constitute an act of persecution within Article 9(2)(b) or (c) of the QD.

Consideration of the question referred

In her opinion the Advocate General (AG) submits that the Court should conclude that Article 9(2)(e) read consistently with Article 12(2) and (3) covers “all military personnel including logistical and support staff such as a helicopter maintenance mechanic” [32]. This is further supported by the phrase “refusal to perform military service” which is sufficiently broad to encompass anyone in military service [35]. With regards to whether an asylum applicant would be led to participate in the commission of crimes that are listed in Article 12(2) such as war crimes, the AG notes that this is a conditional question which requires a consideration of “whether there is a direct link between the acts of the person concerned and the reasonable likelihood that war crimes might be committed” [46]. In addition, the “person concerned must show why he believes that he would be at risk of committing such crimes if he performed his military duties,” this will depend both on an objective and subjective test [63].

In terms of the reasons for persecution as listed in Article 10 of the QD the AG surmises that Shepherd’s objection would fall under 10(1)(e) (political opinion) however in regards to Article 10(1)(d) (particular social group) the AG distinguishes between a deserter and a conscientious objector, the latter more likely to meet the requirements of 10(1)(d) than the former.

Moving onto subsequent questions the AG confirms that using the benchmark of prosecution of a war crime in front of the ICC has no bearing on whether the applicant falls under Article 9(2)(e). Moreover, with regards to domestic procedures of pleading conscientious objection the AG surmises that “a person who refuses to perform military service cannot qualify for refugee status under Article 9(2)(e) unless either he has first had recourse, unsuccessfully, to any available procedures for claiming the status of conscientious objector or no such procedures are plausibly available to him” [74-75].

Lastly, the AG rules that in so far as 9(2)(b) and 9(2)(c) may be applicable the national judge would have to pursue a comparative analysis of whether the states actions are discriminatory compared to other similarly situated groups, whether prosecution or punishment for desertion is disproportionate, and whether “such acts go beyond what is necessary for the State concerned to exercise its legitimate right to maintain an armed force”[80].

14 November 2014                                      

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Membership of a particular social group
Refugee Status