Italy – Rome Tribunal grants refugee status to Ukrainian national on grounds of objection to military conscription

Tuesday, August 21, 2018

On 21 August, the Rome Tribunal ruled on a case concerning the denial of international protection for a Ukrainian citizen who had applied for asylum on the grounds of forced military conscription.

The applicant had been called for recruitment in the Ukrainian army three times, in order to participate in counter-terrorism operations. He sought international protection in Italy, fearing he would be prosecuted as a deserter upon return, a crime punishable in domestic law, but his application was rejected. The applicant appealed against this decision, albeit belatedly, further raising the issue of lack of translation of the decision into his native language. The Tribunal deemed the appeal admissible, noting that the asylum authorities had failed to state any reasons for the lack of translation.

On the merits, the Tribunal first reiterated the right of States to request their citizens to participate in military activities, clarifying, however, that cases of real conscience objection could give rise to a claim for international protection. According to UNHCR’s Guidelines on International Protection no. 10, such claims can also be expressed as an objection to a particular armed conflict, or the means and methods of warfare. When the latter case is under assessment, the authorities have to consider whether there is reasonable probability that the person will be forced to commit acts that are contrary to the rules of basic human conduct. According to the judges, the examination will depend on a proper assessment of the overall conduct in the conflict in question, especially violations of applicable international law.

The Court stressed, however, that the individual circumstances and the role of the applicant will have to be examined in its assessment. According to CJEU jurisprudence on Article 9 (2) (e) of Directive 2004/83, there has to be a sufficient link between the asylum seeker’s actions and the preparation or eventual commission of the prohibited acts. Moreover, desertion has to be the only way for the applicant to avoid participating in the prohibited acts.

After citing several international reports on the Donbass armed conflict, the Tribunal concluded that the parties involved had already participated in war crimes, which is in itself a safe indicator of the probability that the applicant’s actions would relate to the commission of such acts. Consequently, the criminal punishment reserved for deserters in Ukrainian law has to be considered as an act of persecution, even if the length of the punishment is not per se disproportionate. As the applicant belongs to that particular group of people refusing military service, and his conscientious objection can be considered a political opinion, the Tribunal granted him refugee status.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Sofia Bonatti, Legal Officer at ECRE, for her help with the translation of the decision. For further information, see here.

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.



Assessment of facts and circumstances
Political Opinion