Following the case-law of the Court of Justice of the European Union (CJEU, hereinafter Court of Justice), there is a strong presumption that, in the case of prosecution for refusal to perform military service in a conflict and if that military service would include, inter alia, war crimes or crimes against humanity, the refusal to perform military service is connected with a reason for persecution. It is for the national authorities and courts to ascertain, in the light of all the circumstances at issue, whether this connection is plausible. In that regard, it is not sufficient if the requirements for refugee protection are considered to be met on a diffuse factual basis and by falling short of the regular standard of proof (Regelbeweismaß) to reach the full judicial conviction (Überzeugungsgewissheit). This was decided by the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig today.

By the contested judgments, the Higher Administrative Court (Oberverwaltungsgericht) obliged the defendant, the Federal Republic of Germany, in a series of proceedings to grant the claimants, born between 1986 and 2002 and who are Syrian nationals, refugee status beyond the subsidiary protection already granted to them. It held that the claimants were threatened with persecution based on the position of opposition ascribed to them by the Syrian regime on account of their evasion from military service. Even if the assessment of the relevant factual basis in relation to the required connection between the act of persecution and the reason for persecution remained to some extent diffuse and could rather not suffice to reach the full judicial conviction, there was a - sufficient - presumption that the claimants were (also) punished on political grounds because they were to be disciplined as supposedly political opponents of the regime.

The 1st Senate of the Federal Administrative Court set aside the appeal judgments and referred the proceedings back to the Higher Administrative Court.

The Court of Justice held that the existence of a connection between the reasons for persecution as provided for by law in article 10 of Directive 2011/95/EU and an act of persecution within the meaning of article 9 (2) (b) of that Directive cannot be regarded as established solely because that criminal prosecution or punishment are connected to that refusal. Nevertheless, there is a strong presumption that the refusal to perform military service is interpreted as an act of political opposition by the authorities of the third country concerned, irrespective of the possibly much more complex personal reasons of the person concerned, and that the refusal to perform military service under the conditions set out in article 9 (2) (e) of the Directive relates to one of the five reasons for persecution set out in article 10 of the Directive. The plausibility of the ascription of the position of opposition and of the connection is subject to the factual examination by the authorities and courts in the light of all the circumstances at issue (CJEU, judgments of 19 November 2020 - C-238/19 - and of 12 January 2023 - C-280/21). This does not entail a reduction of the regular standard of proof to reach the full judicial conviction pursuant to section 108 (1) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung).