A man from Ukraine fled because he does not want to serve in the Ukrainian army given the recent surge in the east of the country. He applied for asylum on the basis of being a conscientious objector, because he does not want to be forced to take up arms against his own people. Before he left Ukraine, representatives of the army tried to serve him with a military notice, which he avoided. His application was denied. Although the Dutch authorities believed that he could be called in for military service if he returned to Ukraine, it took the view that this would not necessarily be the case. Therefore the authorities considered he did not fill the conditions for obtaining refugee status, without however looking having to look at the requirements for conscientious objectors and the Shepherd case.

Role of the Charter:

Following the Charter based rationale of the AG, the national court referred to Article 10 paragraph 2 of the EU Charter, in which the right to conscientious objection is recognised in accordance with the national laws governing the exercise of this right, sharing also its broad definition of ‘conscientious objector’. However the AG and also the national court went beyond the limited wording of the Charter and gave extensive meaning to the conscientious objector within the particular context of recognition of refugee status by considering both absolute and partial objectors as eligible for refugee status. This case also relates to Article 4 of the EU Charter, namely whether a conscientious objector will, upon return, be subjected to torture or to inhuman or degrading treatment or punishment.

• The person concerned has a well-founded fear for disproportionate or discriminatory punishment because of his objection or desertion based on one of the grounds mentioned in Article 1A of the Refugee Convention;
• The person concerned is a conscientious objector because of his religious or other convictions which have led to his objection or desertion, whilst there was no opportunity to fulfil a non-military service instead;
• The person concerned has refused to take part in a military action which has been condemned by the international community as incompatible with the fundamental norms of humane conduct or conduct during an armed conflict. This also applies when the person concerned has a well-founded fear of having to fight against his own people or family.