Legal Aspects of Admissibility of Granting Protection to a Foreigner Who Refuses to Perform Military Service

Abstract

Issues related to the status and legal situation of individuals who refuse military service and seek protection on the territory of the Republic of Poland should in particular be considered in connection with the provisions of the Convention relating to the Status of Refugees with the 1967 Protocol and the Act of 13 June 2003 on Granting Protection to Foreigners on the Territory of the Republic of Poland. As a general rule, states have the right to require that their citizens perform military service on terms laid down in the domestic law of the state in question. Protection of individuals avoiding military service may only be granted in exceptional cases specified in the statutory law. In the light of the current legislative framework, granting international protection to a foreigner is possible where the oppression in particular takes the form of initiation or conduct of criminal proceedings or punishment for refusal to serve in the military during a conflict, where performing military service would constitute a crime or where there are solemn grounds to believe that performing the service would constitute, in particular, a crime against peace, a war crime or a crime against humanity under international law. The issue of granting protection to persons evading military service was also addressed by the Court of Justice of the European Union which in its judgment of 26 February 2015, C-472/13, focused on the issue of conditions for granting protection to third-country nationals under the European legislation and specified the conditions that must be met for protection to be granted.