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17/10/2023
EE: The Tallinn Administrative Court dismissed a Russian applicant’s appeal against the rejection of the application for international protection, concluding that he failed to demonstrate a well-founded fear of persecution based on his sexual orientation, risk of military conscription, and political opinions.

ECLI
Input Provided By
EUAA Queries
Other Source/Information
Type
Judgment
Original Documents
Relevant Legislative Provisions
Recast Qualification Directive (Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as BIP for a uniform status for refugees or for persons eligible for subsidiary protection)(recast QD)/or QD 2004/83/EC
Reference
Estonia, Administrative Courts [Halduskohtud], X v Police and Border Guard Board (Politsei- ja Piirivalveamet‚ PBGB), 3-23-1549, 17 October 2023. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=4329
Case history
Other information
Abstract

The case concerns a national of the Russian Federation, who is a homosexual and HIV-positive. He requested international protection on 27 December 2022, citing the risk of military conscription, his anti-war views, and the danger to his life and health in Russia. The application was rejected on 27 June 2023 by the Police and Border Guard Board (PBGB). On 6 June 2023, he appealed this decision before the Tallinn Administrative Court, which upheld the PBGB’s decision, finding that the applicant had no reason to fear persecution or serious danger upon return to Russia.


Firstly, the Tallinn Administrative Court determined that the applicant did not qualify as a refugee in connection with military service and failure to respond to a call-up. The court cited CJEU judgments in P.I. v Migration Department under the Ministry of the Interior of the Republic of Lithuania (C‑280/21, 12 January 2023), EZ v Bundesrepublik Deutschland (C-238/19, 19 November 2020) and Andre Lawrence Shepherd v Bundesrepublik Deutschland (C‑472/13, 26 February 2015). Following this jurisprudence, the court reiterated that for military conscription to constitute persecution, the applicant must have received a mobilisation order, and the possibilities of refusal must be evaluated. Indeed, the presence of lawful grounds for avoiding military service may preclude eligibility for international protection. It further affirmed that a mere conviction or punishment for evading military service is not sufficient; it must relate to one of the five grounds for persecution, and the penalty must be disproportionate or discriminatory. In the present case, the court found that the applicant could not substantiate his conscientious opposition to military service, nor could he demonstrate that if he requested alternative service, it would not be granted. Moreover, it observed that HIV-positive persons are not recruited for military service in Russia. The court further noted that at the time of the judgment, there was no mobilisation of citizens in Russia, and there was no information suggesting that this would change significantly in the near future. It determined that even if the applicant failed to appear before the Military Commissariat on 15 October 2022 as requested, he did not face consequences for doing so. Additionally, as he is no longer of recruitment age, he would not be obliged to undergo military service. Referencing the EUAA Country of Origin Information The Russian Federation – Military service (December 2022), the court further noted that decisions on recruitment for military service, including those assessing medical fitness, can be challenged, and the legal proceedings initiated have been successful.


Furthermore, the court assessed the applicant’s claim in relation to his sexual orientation. Following the CJEU judgments in Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel (Joined Cases C‑199/12 to C‑201/12, 7 November 2013), the court reiterated that sexual orientation and the negative attitude of society do not generally constitute persecution within the meaning of the Refugee Convention. The court observed the dire situation of sexual minorities in Russia and the deteriorating societal attitude towards them. It noted that non-heterosexual persons increasingly face violence, arbitrary arrests, and unfounded criminal charges in Russia. It referred to several cases of LGBTIQ people being blackmailed, abducted, and tortured by police and security forces in Chechnya. In this regard, the court clarified that Russia's unfavorable treatment of same-sex relationships, including prohibitions on marriage and adoption, and the increased difficulties for LGBTIQ individuals, do not alone constitute grounds for granting international protection. In the present case, the court noted that the applicant did not personally experience any incidents in Russia in relation to his sexual orientation. It concluded that the applicant was not an activist of the LGBTIQ community, and that there were no reasons to believe that he could be liable for LGBTIQ propaganda upon return. Regarding the applicant’s medical condition, the court noted that HIV treatment is guaranteed in Russia. It affirmed that while treatment options have changed since the onset of the war against Ukraine, this does not constitute a basis for granting international protection and cannot be regarded as persecution.


Finally, concerning political opinion, the court noted that the applicant expressed his opposition towards Russia in social media posts and participated in a demonstration in Estonia. It found that there was no risk of persecution in this regard, as he did not express his opposition to the authority in a manner that would have attracted their attention to an extent indicating that he could be persecuted for his political opinions. The court clarified that there was no reason to believe that expressing disapproval of the actions of the state authorities will lead to persecution. Moreover, it clarified that not every expression of interest is followed by sanctions by the authorities, as the latter are not able to monitor every social media account. Therefore, the court concluded that there were no grounds for recognising the applicant as a refugee on account of his political views.


Conclusively, the court found that PBGB's decision to reject the application was both procedurally and substantively legitimate, and there were no grounds for granting the applicant international protection.  


Country of Decision
Estonia
Court Name
EE: Administrative Courts [Halduskohtud]
Case Number
3-23-1549
Date of Decision
17/10/2023
Country of Origin
Russia
Keywords
EUAA COI Reports
Gender identity / Gender expression / Sexual Orientation / SOGIESC
Medical condition
Military service / Conscientious objection / Desertion / Draft evasion / Forced conscription
Political opinion
RETURN