CJEU: Case C‑472/13 Andre Lawrence Shepherd v Bundesrepublik Deutschland, 26 February 2015

Friday, February 27, 2015

(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)

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 interpretation of Article 9(2)(b)(c) and (e) of the 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 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 questions referred

The Court first advances that the purpose of the Directive is to identify persons who are genuinely in need of international protection and thus the scope of Article 9(2)(e) is not to be delimited to “certain personnel.” The provision, therefore, covers “all military personnel, including logistical or support staff” [33]. However, the Court notes that for 9(2)(e) to apply there must be a conflict situation and whilst indirect participation in alleged war crimes, ie where an applicant provides logistical support, does not exclude the applicant from falling under 9(2)(e), the provision only extends to individual’s tasks which could “sufficiently directly and reasonably plausibly” lead to the participation in such acts[38]. 

In light of the purpose of 9(2)(e), notably that an individual does not wish to run the risk, in the future, of committing acts referred to in Article 12(2) of the QD, the Court submits that “the likelihood of such acts being committed”[39] is sufficient to trigger the protection of the article. However, the CJEU goes on to state that it is up to the domestic authorities to assess with regards to past conduct or previous criminal sentences of the unit “that the situation of that military service makes it credible that such acts will be committed” [40]. In this regard attention should be paid to international consensus, an intervention mandate from the UN and domestic legislation effectively prosecuting war crimes which is “liable to render implausible the hypothesis that a soldier of one of those States could be led to commit such crimes” [42]. Therefore, it is up to the applicant to “establish with sufficient plausibility that his unit carries out operations assigned to it… in such conditions that it is highly likely that acts such as those referred to in that provision will be committed” [43]. The CJEU goes on to note that the acts of persecution complained of must and can only arise from the applicant’s refusal to perform military service. In the present case given voluntary enlistment and subsequent re-enlistment, the applicant had not availed himself of a procedure for obtaining conscientious objector status. The only exception to this would be where the applicant could prove why an analogous procedure was not available to his/her specific claim [45].

Lastly, considering whether a prison sentence, social ostracism or dishonourable discharge for military desertion could constitute acts of persecution under Article 9(2)(b) and (c), the CJEU notes that “it is necessary to consider whether such acts go beyond what is necessary for the State concerned in order to exercise its legitimate right to maintain an armed force”[50]. Notwithstanding that the applicant could risk up to 5 years of a custodial sentence, the Court holds that there “is nothing in the file submitted suggesting that such measures clearly go beyond what is necessary for the State concerned to exercise its legitimate right to maintain an armed force.” Moreover, the Court finds that social ostracism is a consequence of acts under 9 (2)(b) and (c) and “cannot, therefore, be regarded as acts of persecution for the purpose of those provisions”[55]. The Court thus finds that in this particular case the measures accompanied with the refusal to perform military service are not so disproportionate or discriminatory as to amount to acts of persecution for the purpose of 9(2)(b) and (c)[56].

To read Advocate General Sharpston’s Opinion, see here.

27 February 2015
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Acts contrary to the purposes and principles of the UN
Armed conflict
Refugee Status
War crimes