Russians refusing to go to war

What are the chances of protection and asylum?

(20.02.2024) Connection e.V. and PRO ASYL have repeatedly called for a change in the decision-making practice of the Federal Office for Migration and Refugees (BAMF) with regard to deserters and military draft evaders, especially those from Russia. In an analysis published a year ago, it was stated that deserters from Russia could be granted protection, but not the vast majority of military draft evaders who had already evaded recruitment in Russia. The government repeatedly pointed out that the BAMF’s decision-making practice should be reviewed.

This apparently happened in September 2023. We take this as an opportunity to present an up-to-date analysis of this decision-making practice two years after the start of the war against Ukraine.

The text addresses the following topics in detail:

- The right to conscientious objection, desertion and mobilisation

- Numbers of Russian conscientious objectors

- BAMF asylum decisions and case law on asylum and conscientious objection

- Demands of PRO ASYL and Connection e.V.

We have discussed the situation of deserters and draft evaders from Ukraine and Belarus in detail elsewhere.

Right to conscientious objection, desertion and mobilisation

Differences: desertion, draft evasion and conscientious objection

In order to understand and assess the legal background and asylum options, it is important to define the terms:

Most people who are obliged to perform military service in Russia but refuse to do so are draft evaders. They have already evaded the military’s grasp before possible recruitment and have not yet been called up. Some of them are also referred to as military service refugees.

This is to be distinguished from deserters, who are much rarer. They have already received a call-up and are seen as soldiers from that moment on, or are already in military service and are fleeing the military.

Conscientious objection to military service was recognised as a human right by the European Court of Human Rights in 2011 and refers to a personal decision not to join the military, which is often declared to the authorities or the military. Both conscientious objectors and deserters can decide to declare their conscientious objection.

Legal framework: Conscientious objection and desertion in Russia

In Russia, all men between the ages of 18 and 30 are subject to compulsory military service. On 25 May 2022, a law was passed in Russia according to which men up to the age of 65 can be drafted into the army.

An application for conscientious objection is only possible until conscription. There is no right for reservists and soldiers to apply for conscientious objection. If applications were to be reviewed, this would have to be done by an independent body, but in Russia the military is involved in the decisions. The option provided under international law for conscripts to apply for conscientious objection at any time is not guaranteed.

A further amendment to the law in November 2022 means that conscientious objectors who are in so-called alternative service can also be drafted into the military to perform unarmed service.

Those who do not join the military face a punishment of several years in prison. Desertion is prosecuted even more severely, especially during a war. Forced recruitment takes place in the separatist areas, and those who refuse to serve are sent to the front or imprisoned.

The practice of mobilisation in Russia

In addition to the semi-annual call-up of new recruits as part of compulsory military service, a decree was signed by President Vladimir Putin on 21 September 2022, which led to the partial mobilisation of reservists in particular. In the months that followed, there were raids and street checks for recruitment, as the International Fellowship of Reconciliation explained in an expert report for the United Nations in October 2022: "Since the beginning of the mobilization, a widespread practice in large cities is that police officers stop men on the streets, check their documents, and try to hand a subpoena. Lately, another practice was introduced in the form of raids. On October 9, the police came to the ‘heating center’ for the homeless in Moscow and detained several dozen people. There were also raids at workers’ dormitories. In St. Petersburg, police officers blocked exits of several residential buildings and handed out subpoenas. Summons are issued to all caught citizens without respecting the territorial principle. This means that medical and any other documents that are in the military commissariat at the place of registration of a citizen are simply not considered by the military commissariat, where a person is taken after a raid." In addition, the authorities lacked information about withdrawals or deferrals during recruitment. This explains why even official Russian authorities admitted that 9,000 people were wrongly recruited during the partial mobilisation. The actual number is unknown.

According to the law, official letters for registration, enlistment and conscription had to be delivered personally and receipt confirmed with a signature. However, this formal procedure is no longer followed in Russia. The International Fellowship of Reconciliation writes in its report: "In practice, summonses to conscripts are sent to the mailbox without a signature. The date of appearance may be indicated outside the draft periods. And instead of the specific purpose of the call, the summon indicates the general wording ‘clarification of data’. When visiting a Military commissariat in such a situation, a conscript can be called up for military service immediately on the day of the visit."

On 1 November 2022, President Putin declared the partial mobilisation to be over. Lawyer Artyom Klyga, specialist lawyer for Russian military law and Advocacy Manager of the Movement for Conscientious Objection Russia, wrote on 30 January 2024: "The mobilisation announced by President Putin on 21 September 2022 is still taking place. All information indicating that mobilisation has been stopped and that there are no more call-ups for mobilisation is misleading. Russian citizens are still being called to mobilise by means of notices." (Letter to Connection e.V., 30.1.2024)

Anyone who fails to comply with a summons can be fined up to 30,000 roubles (€300). In addition, property transactions, driving a motor vehicle, taking out loans or being self-employed are prohibited. Furthermore, travel bans can be imposed on people who have received summons for mobilisation. So far, no criminal prosecution is planned. However, as Artyom Klyga explains in his letter, "the State Duma has publicly discussed at least three times the initiative to introduce criminal prosecution for failure to respond to mobilisation orders. It can be said with certainty that such liability can be introduced into legislation in less than 24 hours."

Those who honour the summons can be called up on the same day. Klyga reports: "Practice shows that no medical and psychological examination is carried out in this case unless certificates are presented. If a citizen does not obtain a deferment, he can be called up and sent to war."

Furthermore, the target group for mobilisation has been changed, says Klyga. "The Russian authorities have changed their strategy and tactics and decided to send vulnerable groups of the population to war. These include foreigners who are in Russia with a temporary or permanent residence permit, Russian citizens who have only received Russian citizenship upon application and Russian citizens who are in a difficult financial situation." Those affected are lured with the promise of receiving Russian citizenship, a high salary and other benefits. In addition, there are raids, for example in the Moscow region or in St. Petersburg, in which summons to mobilise are handed out.

Escape as a result of mobilisation

As a result of this practice, many people between the ages of 18 and 65 try to avoid any contact with the military authorities. They fear that they could be recruited and deployed in Ukraine at any time. However, many also decide to leave Russia completely before they have any contact with the military and thus become soldiers.

In the weeks following the announcement of the partial mobilisation in September 2022, tens of thousands of men liable for military service evaded the Russian military and fled abroad. In many cases, summonses for mobilisation were issued. These people are therefore known to the authorities, including the border authorities. If they return, they must expect to be called up.

The number of prosecutions for desertion, AWOL or insubordination has risen significantly in 2023. The opposition news platform Mediazona reported on 24 November 2023 that more than 4,500 cases have already been filed in the current year: "Judgements have already been handed down in 3,470 cases. The military courts have handed down 100 judgements per week since June 2023. The peak was reached in August - 457 judgements in that month alone." Only in individual cases do the sentences become known to the media, such as the Russian soldier Madina Kabaloyeva, who was sentenced to six years in prison for failing to report properly, or the contract soldier Maksim Aleksandrovich Kochetkov, who was sentenced to 13 years in prison for AWOL.

Numbers of Russian conscientious objectors

Hundreds of thousands flee from military service

In September 2023, Connection e.V. presented an analysis of how many conscripts had fled Russia by that date. These are estimates due to a lack of clear statistics. Furthermore, it is not really known whether fleeing recruitment is the only or the main reason. It is also unknown how many of the refugees are able to take advantage of exemptions in their country of origin.

Nevertheless, based on a study by the independent network for analysis and policy RE: Russia, Connection e.V. concludes that at least 250,000 conscripts from Russia have left the country since the beginning of the war against Ukraine and are seeking protection in other countries. The main countries of destination are Kazakhstan, Georgia, Armenia, Turkey, Serbia and Israel; less so the countries of the Schengen area due to their very restrictive visa policies.

The situation in the receiving countries is sometimes precarious. Turkey - and Kazakhstan since the end of January 2022 - only grants Russian citizens a limited residence status of three months, which cannot be extended at will. Deportations to Russia have been reported in Kazakhstan and Armenia.

According to Eurostat statistics, only around 12,200 men of military service age applied for asylum in one of the European Union states between February 2022 and October 2023. Connection e.V. assumes that 70 per cent of these, i.e. a good 8,500 men, are actually liable for military service in Russia.

Russian conscientious objectors in Germany: high rejection rate for asylum applications

In September 2023, the Federal Ministry of the Interior presented figures on male asylum applicants between the ages of 18 and 45. The following picture emerges:

The number of asylum applications from Russian refuseniks has therefore risen significantly. According to the BAMF, Russia was the seventh largest country of origin for asylum seekers in 2023. It can be assumed that there is a connection with the partial mobilisation in Russia in September 2022.

Decision figures

The number of decisions lags behind this because hearings and decisions are sometimes only made after weeks or even months.

Formal completion of proceedings - Dublin III Regulation

In most cases, this term refers to decisions on the Dublin III Regulation. This regulates which European country in the Schengen area is responsible for the asylum procedure. Many Russian conscripts or deserters can only reach Germany via illegal overland routes via Eastern European countries, or have travelled with a visa via another EU country. Due to Dublin III, this country is then usually responsible for processing the asylum application, even in cases where they would receive extensive support from relatives or friends in Germany. In this procedure, the Federal Office does not assess whether asylum seekers are at risk in the countries responsible for the asylum application, whether they are not recognised there or whether there is a different legal decision-making practice.

To counteract this, some church communities have accepted Russian asylum seekers into church asylum. This was intended to prevent deportation, particularly to countries such as Lithuania, Poland or Croatia.

Refugee protection

While at least 40% of the asylum applications examined in 2022 were still positive (and 12,9% of all decisions), the rate for January to September 2023 fell significantly. Only 25% of the asylum applications examined were concluded with a positive decision (and only 1,2% of all decisions).

Decisions of the Federal Office for Migration and Refugees - case law on asylum and conscientious objection

Adjustments to the BAMF’s decision-making practice

Unfortunately, we have not yet been able to obtain the new guidelines on decision-making practice. A reply from the Federal Ministry of the Interior and Home Affairs to MP Clara Bünger dated 20 September 2023 shows that there have been adjustments. It states: "The BAMF’s decision-making practice [on Russian men of military age] has already been adapted several times. The last revision took place at the beginning of September 2023, which also completed the review of the decision-making practice with regard to those withdrawn from military service and mobilisation. The current decision-making practice provides for the following: - Deserters should continue to receive international protection on a regular basis; - Persons who are to be drafted into the army and refuse to serve will receive international protection if the conditions for this are met. These are, in particular, acts of persecution in connection with a reason for persecution. However, these conditions are less likely to be met for this group of people than for deserters."

A look back at the initial lip service paid by politicians

In 2022, German politicians were still repeatedly offering Russian deserters and refuseniks protection and asylum in Germany. The Bundestag resolution on support for Ukraine of 28 April 2022 appealed to Russian soldiers to lay down their arms and stated that "the path to the German and European asylum procedure is open to them". In a statement in May 2022, the Ministry of the Interior explained that "in the case of credible desertion by a Russian asylum seeker in the event of return to the Russian Federation, it is currently generally assumed that there is a threat of persecution". However, this promise of protection does not apply to those who have already evaded recruitment.

In February 2023, the European Parliament decided to "Expresses solidarity and support for the courageous people in Russia and Belarus protesting Putin’s invasion of Ukraine" and urges "the Member States to protect and grant asylum to Russians and Belarusians persecuted for speaking out against or protesting the war, as well as to Russian and Belarusian deserters and conscientious objectors". It also emphasised that "EU protection and asylum must also be extended to Ukrainian deserters and conscientious objectors."

The 13th Synod of the  Protestant Church in Germany (EKD) resolved on 5 December 2023: "Conscientious objection is an internationally recognised human right. Many people from war zones or countries involved in wars who are threatened with military service try to avoid it. There are also soldiers on the front line who want to lay down their weapons in the face of horror. In many countries, they face repression and prison sentences for doing so, and in some countries even the death penalty. Against this backdrop, the Synod asks the Council of the EKD to [...] advocate that Germany open up the possibility of entry to people, especially from Russia, who refuse to do military service or desert, that Germany protect these people and grant them asylum."

Many politicians also expressed similar sentiments:

Federal Chancellor Olaf Scholz: "I am in favour of offering these people [Russians who refuse to be drafted into the military] protection."

Federal Minister of the Interior Nancy Faeser: "Anyone who courageously opposes President Vladimir Putin’s regime and therefore puts themselves in the greatest danger can apply for asylum in Germany on the grounds of political persecution."

FDP MP Konstantin Kuhle: "It will happen that current or former members of the Russian security apparatus or state authorities decide to leave the country. The EU should offer these people the prospect of preferential processing of their asylum applications. Anyone who has the courage to stand up to Putin’s regime in Russia must be granted asylum in the European Union."

Federal Foreign Minister Annalena Baerbock said with regard to German asylum law: "This applies to every citizen in the world and, of course, it also applies to Russians who are worried about life and limb." It is now a matter of "upholding the right to asylum."

Parliamentary Secretary of the Greens Irene Mihalic: "Anyone who, as a soldier, does not want to take part in Putin’s war of aggression against Ukraine, which violates international law and is murderous, and therefore flees Russia, must be granted asylum in Germany."

Charles Michel, European council president declared in April 2022: “If you want no part in killing your Ukrainian brothers and sisters, if you don’t want to be a criminal, drop your arms, stop fighting, leave the battlefield." Endorsing an idea previously circulated by some EU lawmakers, Michel added that granting asylum to Russian deserters is “a valuable idea that should be pursued".

Asylum: only a few doors open

In principle, it should be noted that the prosecution of conscientious objection to military service and desertion is generally not recognised as grounds for asylum. Supreme court case law points out that compulsory military service is a general state duty that applies equally to all citizens (or at least all citizens of military service age and, if applicable, of the male sex). Prosecution and punishment for conscientious objection is therefore categorised as legitimate state action. According to the judgement of the European Court of Human Rights, the prosecution of conscientious objection is only considered by courts to be a violation of the European Convention on Human Rights in individual cases, which means that only protection against deportation can be considered.

Only in the case of Russian deserters does the Federal Ministry of the Interior take a different view, as it assumes that they are at risk of persecution for political reasons. In a statement issued by the Federal Ministry of the Interior in May 2022, it states that "it can be assumed that imminent acts of persecution are usually linked to a reason for persecution (Section 3b Asylum Act). Since even the term ’war’, in relation to the attack on Ukraine, can be penalised in the Russian Federation as an oppositional political statement, desertion - as an active statement against the waging of war - can be seen as an expression of an oppositional conviction."

However, the communication from the Federal Ministry of the Interior explicitly states that Russian "military service refugees are not included". PRO ASYL and Connection e.V. have been criticising this for months.

Refugee protection in the event of political persecution or excessive punishment

In asylum case law, the persecution of conscientious objection and desertion is only considered relevant if the act is regarded as a political act by the persecuting state or is punished excessively. As outlined above, the Federal Ministry of the Interior qualified the former as given in its statement of May 2022 with regard to deserters from Russia. Accordingly, at least those who can provide evidence of a call up or desertion should receive refugee protection.

Draft evasion, on the other hand, is not interpreted in this way. The fear of possible recruitment for a war contrary to international law if those affected are forced to return is obviously not considered worthy of protection. Even the risk of possible punishment - albeit to a lesser extent - has so far not led the German authorities to make a different assessment.

"Considerable probability" becomes the decisive criterion

In several of the notifications we received from the Federal Office for Migration, persecution was ruled out simply because it could not be assumed "with considerable probability" that the applicants would be called up to join the armed forces or the war in Ukraine. One of the arguments put forward was that, according to the Russian government, the number of people called up during the partial mobilisation was only 300,000, whereas almost 25 million reservists could be recruited in Russia. Therefore, a "considerable probability" could not be assumed in individual cases. Reports showing that the partial mobilisation in October 2022 was carried out on an arbitrary basis and that there were several thousand cases in which people were wrongly recruited were not taken into account.

Refusal to participate in a war that violates international law

The asylum procedures of Russian deserters and refuseniks are subject to a provision of European legislation, the so-called Qualification Directive. Article 9 of this directive regulates who can be recognised as a refugee in the European Union. It contains a passage stating that this is the case if there is a threat of criminal prosecution for refusing to participate in wars that violate international law. Russian conscientious objectors, draft evaders and deserters face such prosecution. However, case law raises the question of the circumstances in which this provision applies.

The European Court of Justice, the highest court in the European Union, has already ruled on this twice. This has defined a number of conditions which, unfortunately, in view of the current situation, make it unlikely that protection can actually be achieved for those affected. This is because those affected would have to have previously submitted a formal application for conscientious objection in their country, which was rejected or at least did not prevent them from being sent to a war zone as part of the fighting force. They would have to prove that they were genuinely recruited and that there is a serious threat of deployment in war. Hardly anyone will be able to fulfil these criteria.

The Halle Administrative Court made it clear in a decision of 27 April 2023 how this can still be done. In the case of a follow-up application by Russian nationals of Chechen ethnicity, it wrote: "In the case of the applicant (...), however, there is a case of forced flight because, as a 38-year-old Chechen man with no health restrictions, he is threatened with forced recruitment for military service in Ukraine if he returns to his country of origin. Persecution within the meaning of Section 3a (1) Asylum Act may also include [...] prosecution or punishment for refusal to perform military service in a conflict if the military service would involve crimes or acts that would fall under the exclusion clauses of Section 3 (2) Asylum Act. [...] The war waged by Russia in Ukraine is a war of aggression under international law and, according to the evidence introduced into the proceedings, it appears [...] considerably likely that the applicant [...] as a healthy Chechen man will be drafted against his will into a Chechen combat unit and sent to Ukraine to commit war crimes and crimes against humanity or at least to act contrary to the purposes and principles of the United Nations."

Another positive decision was made by the Berlin Administrative Court on 20 March 2023 in the case of a 17-year-old Chechen: "The plaintiff [...] is threatened with serious harm in the form of inhuman and degrading treatment because it is considerably probable that he will be conscripted for military service after his return and in connection with this [...] and from this point in time there is also the considerably probable danger of being sent to the Ukraine war [...], where the plaintiff [...] would have to expect to be forced to participate in a war of aggression contrary to international law and acts contrary to international law and/or human rights, or to suffer serious harm to life and limb himself."

The Grand Chamber of the National Asylum Court (CNDA) in France ruled on 6 September 2023 that Russian nationals who refuse partial mobilisation or forced recruitment as part of the war in Ukraine must be granted refugee status, as they would be induced to commit such crimes directly or indirectly due to the large-scale commission of war crimes by the Russian armed forces. However, they would have to prove that they were actually at risk of being recruited for the war. The Court also found that the partial mobilisation in September 2022 was broadly defined and that it was not possible to avoid military service by performing alternative civilian service. In addition, the mobilisation was marred by numerous irregularities affecting both those affected and the mobilisation procedures. The CNDA also stated that the partial mobilisation is de jure and de facto still in force, although the Russian Minister of Defence had declared that the mobilisation target would be reached by the end of 2022. Individuals who oppose the mobilisation will face criminal prosecution and sanctions.

New practice since September 2023?

The Federal Office for Migration and Refugees adjusted its decision-making practice in September 2023.

Nevertheless, we have received a decision dated 29 September 2023 that shows that the policy requirements are not being implemented. In it, a Russian military conscript was rejected on the grounds that although he had submitted a call-up notice for reserve service, "the refusal of partial mobilisation alone does not constitute an act of persecution by state or non-state actors in accordance with Section 3a Asylum Act". For the specific case, the BAMF states that Russian law only provides for a warning or fine as a penalty for refusing to mobilise. "Insofar as the applicant states that he fears a prison sentence of up to ten years and refers to Article 328 of the Criminal Code, it should be noted that, according to a clarification by the Russian Supreme Court in 2008, this article does not apply to reservists, but only to withdrawal from basic military service." It cannot be ruled out "that harsher punishments will be imposed on those withdrawn from mobilisation during the Ukraine war and in the further course of the war. However, according to the current legal situation, concrete enforcement is not so likely that it could be assumed that the applicant would be threatened with targeted state persecution or individual harm to such an extent that this would be considered an act of persecution upon return to Russia."

Not a word is mentioned about what the applicant would actually face if he had to return to Russia, e.g. due to deportation. He had clearly stated to the BAMF that he rejects the war in Ukraine. He had been called up for reserve duty, as the BAMF itself writes. It would therefore be safe to assume that he would not only have to expect a fine if he travelled to Russia, but above all recruitment. Ultimately, this means that German authorities will hand over a Russian refusenik to the Russian military for recruitment into a war that violates international law.

Demands of PRO ASYL and Connection e.V.

EU states must find solutions for conscientious objectors

As part of the #ObjectWarCampaign project sponsored by PRO ASYL, Connection e.V. has collected numerous facts and drawn conclusions and developed demands together with PRO ASYL. It is clear that the political guidelines are not being implemented by the BAMF. Although the Federal Ministry of the Interior generally grants asylum to deserters from Russia, no threat of persecution is recognised for those withdrawing from military service and no consideration is given to possible recruitment. In short, what is needed in this regard is not just an appeal from politicians, but clear guidelines.

Demands on politicians

PRO ASYL and Connection e.V. are calling on the German government to create opportunities to guarantee protection and asylum for conscientious objectors, draft evaders and deserters. This includes

• Russian citizens* must also be able to submit applications for admission to the European Union from countries outside Russia where they are threatened with deportation to Russia. They should be given access to humanitarian visas.
• No pushbacks! Reception of people seeking protection can only succeed if illegal pushbacks are stopped and people are given access to a fair asylum procedure. But the current visa regulations prevent many from reaching safe countries.
• With a view to asylum or another residence status, EU countries must not only develop criteria for deserters, but above all find solutions for the larger number of those withdrawing from military service. If they were forced to return to Russia, they would be subject to recruitment for a war that violates international law.
• The EU should adopt a reception programme so that those Russian citizens who have turned their backs on their country’s government at great risk are given opportunities for training and employment.

Further information is regularly provided by Connection e.V. as part of the #ObjectWarCampaign, with which an association of more than 100 organisations across Europe is campaigning for protection and asylum for conscientious objectors and deserters from Russia, Belarus and Ukraine: https://en.Connection-eV.org/ObjectWarCampaign and https://objectwarcampaign.org/en.

Connection e.V.: Russinnen und Russen, die sich dem Krieg verweigern - Wie stehen die Chancen auf Schutz und Asyl?. www.Connection-eV.org, February 20, 2024. https://de.connection-ev.org/article-4014

Keywords:    ⇒ Asylum   ⇒ CO and Asylum   ⇒ Conscientious Objection   ⇒ Desertion   ⇒ Europe   ⇒ Germany   ⇒ Russia