A Turkish asylum applicant of Kurdish origin, who refused to fulfill his military obligations, requested protection in France.

The National Court of Asylum (CNDA) gave an initial definition of conscientious objection to military service as a ground for recognition of refugee status.

Based on Resolution No 1998/77 of the United Nations Commission on Human Rights of 2 April 1998 and on the case law of the European Court of Human Rights, the court defined conscientious objection as "a real personal conviction, having a proven degree of force or importance, consistency and seriousness for the person concerned to oppose any fight, motivated by a serious and insurmountable conflict between the obligation of service in the army and its own conscience or its own sincere and profound convictions, in particular of a political, religious, moral or other nature."

The court also provided the procedures for assessing a request for protection based on such a ground. It requires the person who intends to rely, in support of his application for international protection, on fears linked to conscientious objection to military service, to provide all the relevant elements relating to the personal situation with regard to the military obligations in the country of origin, and to clarify in a credible manner, with precision, consistency and plausibility, the importance of the convictions, reasons or motives on which the objection is based, as well as their impact on the inability to perform military service.

In this individual case, the court recalled that Turkish law did not provide for any alternative to compulsory military service, apart from the possibility of exemption against the payment of a sum of money. It held that the declarations of the person concerned did not make it possible to justify the existence of convictions which could characterize a conscientious objection, as previously defined.

Then, examining the request from the angle of the conventional nature of the act of persecution, within the meaning of paragraph 2 e) of Article 9 of the Qualification Directive (recast) and the relevant case law of the Court of Justice of the European Union, in respect of the risk of prosecution resulting from the refusal to commit, during the performance of military service, abuses falling within the scope reasons for exclusion, the CNDA considered that no available source indicated that the Turkish security forces and the conscripts, would be likely, in a systematic way, to participate in military actions constituting serious violations of humanitarian law, criminal law or human rights law. Thereby, in view of the public documentation available, it was considered that it was not likely that a conscript would participate directly or indirectly in the commission of crimes or acts referred to in Article 12 (2) of the Qualification Directive (recast) (Article 1F of the Geneva Convention), regardless of its sector of intervention. The court further noted that it appeared from information provided by the applicant that the Turkish military authorities were considering posting him to a province in central Turkey far from the areas of confrontation between the army and the PKK.

The court also ruled that the person concerned does not expose himself, because of his refusal to serve, to legal, administrative, police or judicial measures, or to prosecution or disproportionate or discriminatory sanctions within the meaning of the b) and c) of paragraph 2 of Article 9 of the Qualification Directive (recast). The penalties provided for by the Turkish criminal code to sanction insubordination or desertion, essentially consisting of administrative fines rather than prison sentences, which are rarely applied, are general, impersonal and proportionate.

Finally, the court considered that the applicant's refusal to serve does not respond to any of the grounds for granting subsidiary protection, in the absence, on the one hand, of significant and systematic discrimination and ill-treatment during the performance of the service military and in the absence on the other hand in Turkey, of a situation of indiscriminate violence resulting from an armed conflict.