Belgium – CALL rules in a case of draft evasion by a Turkish applicant of Kurdish background

Date: 
Thursday, October 25, 2018

On 25 October, the Council for Alien Law Litigation (CALL) ruled in a case concerning the rejection of an asylum claim based on conscientious objection to military service in Turkey.

The case concerned an asylum request submitted by a Turkish couple of Kurdish ethnicity, which was refused by the Commissioner General for Refugees and Stateless Persons (CGRA), due to lack of credibility. The husband had escaped Turkey, in order to avoid military conscription and persecution due to his political affiliations. The Commissioner based the decision, inter alia, on the applicants’ late and incoherent submission of several substantial elements, including regarding the political aspects of his activities. More specifically, the applicant had not elaborated on the reasons of his draft evasion, which was found not to amount to conscientious objection to military service.

On appeal, the CALL noted that the first-instance authorities did not provide a strong reasoning, before dismissing the applicant’s political profile. The judges went on to consider that the facts surrounding the applicant’s political activities within the general pro-Kurdish context had been established. The CGRA also failed to properly address the fact that the applicant indeed had not completed his military service. Based on UNHCR’s guidelines, the CALL restated that a draft evader may also be considered a refugee, if it can be shown that they would suffer disproportionately severe punishment for the military offence on account of, among others, their race or membership of a particular social group or political opinion.

The Council agreed with the CGRA that the punishment that the applicant would face cannot be considered as disproportionate, noting, however, that the reasons for the applicant’s draft evasion must be taken into account. In this connection, it was observed that the applicant did not want to participate in the military, as this could mean his engagement in armed conflict against the Kurdish rebellious forces. The Council noted that the ethnic-centred reason of this objection to military service may approach the concept of conscientious objection. The political activities the applicant had undertaken in Turkey also support the Council’s conclusion that the domestic authorities consider the applicant to be a conscientious objector.

The Court ruled that the combination of the aforementioned characteristics establish a reasonable fear of persecution in the sense of the Geneva Convention and annulled the contested decision.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Tristan Wibault, ELENA Coordinator for Belgium, for bringing this case to our attention.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

   

 

Keywords: 
Credibility assessment
Political Opinion
Race