Photo: Wikimedia

Photo: Wikimedia

Ukrainian draftees under pressure

by Rudi Friedrich

(15.08.2024) A few days ago, the press reported that Ukrainian men of military service age will not be issued travel documents for foreigners. Connection e.V. and PRO ASYL had called for this in May 2024. The Ministry of Social Affairs in the German county Hesse had refused to issue travel documents, stating that it was reasonable to expect those affected to travel to Ukraine to obtain a passport and fulfil their military service obligations. How should this be assessed?

According to estimates, there are around 100,000 Ukrainian men in Germany who are obliged to perform military service and who have been granted residence under the Temporary Protection Directive (In Germany §24 AufenthG). In addition, there are thousands more who have been able to establish residence in Germany with a work visa. For some months now, Connection e.V. has also been receiving enquiries from Ukrainian soldiers or their relatives who are on family leave or in Germany for military training as to what residence options they have when they leave the military.

The current discussion primarily concerns those whose Ukrainian passports are no longer valid. The principle according to §5 AufenthG states that a valid passport must be available for a stay. However, there are exceptions to this rule. Here is an overview.

Residence according to §24 AufenthG

Residence and residence permits according to §24 for Ukrainians liable for military service are not in question. There is already an agreement at European Union level that this residence permit will be extended until March 2026. This residence permit will remain valid even if a valid passport is no longer available. Section 5 (3) of the Residence Act clearly stipulates that if a residence permit is issued in accordance with Section 24, the passport requirement is not fulfilled.

However, the Ministry of the Interior of the German county Hesse refuses to issue passports for foreigners. Instead, ‘the persons concerned then receive the residence permit as a substitute for an ID card and thus fulfil the passport requirement in Germany’, according to the Kassel Foreigners’ Registration Office when asked. The consequence of this is that although they can stay in Germany and identify themselves, they are unable to travel abroad.

Stay with a work visa

With a work visa the situation is different and residence is in fact linked to a valid travel document. This is regulated in accordance with Section 5 (1) of the Residence Act. For this group of Ukrainian men liable for military service, the situation is very precarious if the passport loses its validity. It must be considered on a case-by-case basis whether a stay can be justified for other reasons. Possibilities such as naturalisation after a longer stay in Germany, residence according to §24 AufenthG or others are conceivable.

Escape from the Ukrainian army abroad

Anyone who goes absent without leave from the military during active service in the military, e.g. during home or family leave or during military training, is considered an AWOL or a deserter. In Ukraine, a person could be prosecuted for unauthorised absence or desertion.

In principle, Ukrainian soldiers who are in Germany have the option of applying for a residence permit in accordance with Section 24 of the Residence Act. However, we have received reports that German authorities have sometimes informed the German army or the US Army of enquiries from this group of people.

Right to conscientious objection is suspended

If conscientious objectors oppose their recruitment, the military initiates criminal prosecution. The penalty for this is three to five years’ imprisonment. The sentences handed down so far have been one to four years (sometimes suspended). Soldiers who refuse to do military service must expect to be harassed or that their applications will not be accepted. The army also prevented soldiers from attending court hearings on their conscientious objection. There are lawsuits before the Supreme Court of Ukraine against the suspension of the possibility of submitting an application, against sentences of imprisonment and against conscientious objectors not being released from the army.

Further information on this can be found in the 2023/24 Annual Report of the European Bureau for Conscientious Objection (EBCO).

How to apply for a Ukrainian passport?

New passports will only be issued by Ukraine if the person concerned reports to Ukraine, is re-registered in the military there and is mustered. If they return to Ukraine, they are threatened with conscription into the war in any case. And due to Ukraine’s ban on leaving the country, which has been in place since the start of the war, they can no longer leave.

Last resort asylum?

Due to the difficult situation, there is always the consideration of applying for asylum. This is possible in principle. An application for asylum also means that deportation is ruled out for the duration of the asylum procedure due to the protection afforded by the Geneva Refugee Convention. However, the question arises as to whether an asylum application really has a chance of being recognised. And here we have to realise that the chances are extremely slim. Persecution for desertion or conscientious objection is generally not recognised as reason to be granted asylum.

The fact that Ukraine has suspended the (limited) right to conscientious objection to military service since the beginning of the war, thereby violating the decisions of the European Court of Human Rights (ECtHR), will not be accepted as a reason for obtaining refugee protection. In the case of convinced conscientious objectors, the most that could be considered is protection against deportation if they have already tried in vain to submit an application for conscientious objection to the Ukrainian authorities.

Is extradition possible?

Extradition at the request of the Ukrainian authorities on the grounds of military offences is not possible in accordance with the European Convention on Extradition.

Disinformation as a political means of creating uncertainty

In the current debate, it is interesting to note that the Ministry of Social Affairs of Hesse declared that it would not issue travel documents for foreigners, stating that those affected could reasonably be expected to travel to Ukraine to obtain a passport and fulfil their compulsory military service. If we look at the actual regulation, this is contradictory. In this respect, this is another attempt to unsettle the Ukrainian refugees and call their stay into question, although clear limits are set by law. Something similar has happened again and again in recent months. For example, the Ukrainian government announced its intention to submit extradition requests. However, these are not permitted for military offences. It was therefore not legally tenable, but has caused unrest in the community.

In the face of these disinformation campaigns, the aim is to provide accurate information in various languages and to provide information in counselling sessions.

Anyone who has contact with those affected will experience their worries and needs at first hand. If it is uncertain or unclear for those affected, we are happy to help. For us, everyone has the right to refuse military service, even in a war of defence.

Rudi Friedrich: Ukrainische Militärdienstpflichtige unter Druck. August 15, 2024. Published in: Connection e.V. (Hrsg.): Rundbrief »KDV im Krieg«, Issue September 2024

Keywords:    ⇒ Asyl   ⇒ Asyl und KDV   ⇒ Asylum   ⇒ Befehlsverweigerung   ⇒ CO and Asylum   ⇒ Conscientious Objection   ⇒ Desertion   ⇒ Desertion   ⇒ Disobeying   ⇒ Kriegsdienstverweigerung   ⇒ Ukraine