Key facts of the case:
(Request for a preliminary ruling from the Bayerisches Verwaltungsgericht München (Germany))
(Area of freedom, security and justice — Asylum — Minimum standards for the qualification and status of third-country nationals as refugees and the content of the protection granted — Conditions for obtaining refugee status — Acts of persecution under Article 9(2)(e) of Directive 2004/83/EC — Prosecution and punishment of a member of the armed forces of the United States of America for refusing to serve in the war in Iraq)
84. In the light of the foregoing considerations I propose that the Court should answer the questions referred by the Bayerisches Verwaltungsgericht München (Germany) to the following effect:
8. Article 10(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (9) corresponds to Article 9(1) of the ECHR. Under Article 10(2), the right to conscientious objection is recognised in accordance with the national laws governing that right. Article 52(3) states that the rights enshrined in the Charter should be interpreted consistently with corresponding rights guaranteed by the ECHR.
27. The Geneva Convention is a living instrument that should be interpreted in the light of present day conditions and in accordance with developments in international law. (32) The United Nations High Commissioner for Refugees (‘the UNHCR’) plays a particular role under the Convention, providing valuable guidance for Member States when determining refugee status. (33) The Geneva Convention is the cornerstone of the international regime for the protection of refugees; and the Qualification Directive must be construed in the light of the general scheme and purpose of that Convention. (34) Furthermore, as Article 78(1) TFEU makes clear, any interpretation of the Qualification Directive must be consistent with the Geneva Convention and other relevant treaties and with the rights recognised by the Charter.
52. The expression ‘conscientious objector’ does not appear in the text of Article 10(1) of the Charter, which closely mirrors Article 9(1) of the ECHR. The European Court of Human Rights has nevertheless ruled that opposition to military service — where it is motivated by a serious and insurmountable conflict between the obligation to serve in an army and a person’s conscience — constitutes a conviction of sufficient cogency, seriousness, cohesion and importance to be protected by Article 9(1) of the ECHR. (51) Article 10(1) of the Charter should therefore be interpreted in a similar manner. Article 10(2) of the Charter does identify and recognise the right to conscientious objection in accordance with the national laws governing the exercise of this right. (52)