In a Grand Chamber formation, the CNDA ruled that Russian nationals who refuse mobilization for the war in Ukraine should be granted refugee status based on the recast Qualification Directive.

The case concerned M.A., a Russian national who claimed international protection in France, raising as arguments first the fear of being persecuted by his father based on religious reasons and second, the fear of persecution by Russian authorities due to political and conscientious objection reasons, because he did not submit to the military mobilization within the context of the war of Russian forces against Ukraine.

On 16 November 2021, the Office for Refugees and Stateless Persons (OFPRA) rejected the request for international protection.

Before the CNDA, the applicant argued that as a reservist of the Armed Forces of the Russian Federation, he was summoned twice by the military commissariat of the city of Orel for 3 October and then 19 December 2022, as part of the partial mobilization decided by decree of President Putin on 21 September 2022, and that he refused to support a war of aggression and to participate in the war crimes and crimes against humanity committed by the Russian military.

The CNDA rejected the allegations concerning the fear of persecution by the applicant’s father.

With regard to the fear of persecution due to the refusal of military mobilization, the CNDA found that several investigations into war crimes committed in Ukraine concluded that there were war crimes committed by the Russian armed forces in the context of the international conflict in Ukraine. The court noted that an independent international commission of inquiry on Ukraine set up by the United Nations Human Rights Council had highlighted in two reports (on 18 October 2022 submitted to the UN General Assembly and on 15 March 2023 submitted to the Human Rights Council) the seriousness and extent of human rights violations and crimes under international law (torture, executions of Ukrainian war prisoners, summary executions of civilians, rape and sexual violence crimes, arbitrary detention, forced deportation of civilians and especially minors, destruction of critical infrastructures, deliberate and general attacks on civilian populations) committed at large scale by the entire Russian armed forces.

The court also looked at the mobilization decided by the Russian president on 21 September 2022, noting that it was particularly broad given the rules governing the reserve in Russia, which does not only include Russian men who have completed their military service. It further noted that refusing mobilisation exposed the person to criminal proceedings, criminal sanctions and other forms of sanctions. The court noted that the criminal code was amended in Russia since the mobilization was declared, in order to increase the criminal responsibility (e.g. for non-respect of an order, abandoning a military unit without approval, desertion).

Relying also on the Country of Origin Information Reports of the EUAA, The Russian Federation - Military service and The Russian Federation - Political opposition, published on 16 December 2022, the court found that it was not possible to avoid military service during partial mobilization by performing alternative civilian service and that the implementation of the mobilization had numerous irregularities with regard to the public concerned and the mobilization procedures. It also noted that partial mobilization still remained in force even if the Minister of Defense had announced that the mobilization objective had been reached in 2022. It also noted that those resisting mobilization are exposed to prosecution and criminal penalties recently strengthened by Russian law.

The court concluded that a Russian national called up for partial mobilization in September 2022 must be regarded as being led to commit, directly or indirectly, war crimes, given the very purpose of the mobilization, the impossibility of refusing a mobilization order and taking into account the conditions in which the armed conflict unfolded, marked by the large-scale commission of war crimes by the various units of the Russian armed forces, whether in the territories controlled by Ukraine or in the territories currently under the control of the Russian authorities. 

The court further noted that the applicant has the obligation to provide all the relevant elements to establish that he is actually subject to a military obligation and mere membership in the reserve is not sufficient to demonstrate that he would actually be led to participate directly or indirectly in the commission of war crimes.

In the specific case of the applicant, the CNDA concluded that the statements and documents presented to the court did not make it possible to establish that the applicant had been mobilized in the context of the war against Ukraine and that the applicant had been exempted from military service in 2013 and had fled his country in 2019 citing family and religious fears.