Request for a preliminary ruling from the Bayerisches Verwaltungsgericht München (Germany) lodged on 2 September 2013 – Andre Lawrence Shepherd v Federal Republic of Germany
(Case C-472/13)
Language of the case: German
Referring court
Bayerisches Verwaltungsgericht München
Parties to the main proceedings
Applicant: Andre Lawrence Shepherd
Defendant: Federal Republic of Germany
Questions referred
Is Article 9(2)(e) of Directive 2004/83/EC 1 to be interpreted as meaning that the protection afforded extends only to those persons whose specific military duties include direct participation in combat, that is armed operations, and/or who have the authority to order such operations (first alternative), or can other members of the armed forces also fall within the scope of the protection afforded by that legislation if their duties are confined to logistical, technical support for the unit outwith actual combat and have only an indirect effect on the actual fighting (second alternative)?
If the answer to Question 1 is that the second alternative applies:
Is Article 9(2)(e) of Directive 2004/83/EC to be interpreted as meaning that military service in a conflict (international or domestic) must predominantly or systematically call for or require the commission of crimes or acts as defined in Article 12(2) of Directive 2004/83/EC (first alternative), or is it sufficient if the applicant for asylum states that, in individual cases, crimes, as defined in Article 12(2)(a) of Directive 2004/83/EC, were committed by the armed forces to which he belongs in the area of operations in which they were deployed, either because individual operational orders have proved to be criminal in that sense, or as a result of the excesses of individuals (second alternative)?
If the answer to Question 2 is that the second alternative applies:
Is refugee protection granted only if it is significantly likely, beyond reasonable doubt, that violations of international humanitarian law can be expected to occur in the future also, or is it sufficient if the applicant for asylum sets out facts which indicate that such crimes are (necessarily or probably) occurring in that particular conflict, and the possibility of his becoming involved in them therefore cannot be ruled out?
Does the intolerance or prosecution by military service courts of violations of international humanitarian law preclude refugee protection pursuant to Article 9(2)(e) of Directive 2004/83/EC, or is that aspect immaterial?
Must there even have been a prosecution before the International Criminal Court?
Does the fact that the deployment of troops and/or the occupation statute is sanctioned by the international community or is based on a mandate from the United Nations Security Council preclude refugee protection?
Is it necessary, in order for refugee protection to be granted pursuant to Article 9(2)(e) of Directive 2004/83/EC, that the applicant for asylum could, if he performs his duties, be convicted under the statutes of the International Criminal Court (first alternative), or is refugee protection afforded even before that threshold is reached and the applicant for asylum thus has no criminal prosecution to fear but is nevertheless unable to reconcile the performance of the military service with his conscience (second alternative)?
If the answer to Question 6 is that the second alternative applies:
Does the fact that the applicant for asylum has not availed himself of the ordinary conscientious objection procedure – even though he would have had the opportunity to do so – preclude refugee protection pursuant to the abovementioned provisions, or is refugee protection also a possibility in the case of a particular decision based on conscience?
Does a dishonourable discharge from the army, the imposition of a prison sentence and the social ostracism and disadvantages associated therewith constitute an act of persecution within the meaning of Article 9(2)(b) or (c) of Directive 2004/83/EC?
________________________1 Council 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 (OJ 2004 L 304, p. 12).