FECL 29 (November 1994):
The rejection of the asylum application of a Kosovo-Albanian deserter by the Austrian Ministry of the Interior was unlawful, the Highest Austrian administrative Court found in a decision published in early October. In certain cases, desertion can be a ground for asylum, the judges considered.
The Interior Ministry now warns that 24 million refugees from former Yugoslavia will have a right to asylum in Austria, if this jurisdiction is maintained.
Hitherto, the Austrian immigration authorities have regularly held that, as a general rule, desertion is no ground for recognition as a refugee. As a result, many deserters from former Yugoslavia were threatened with deportation or actually deported back to their home country.
The Highest Court does evidently not share this view. In the above decision it says, that asylum must be granted when the call-up to military service is based on motives of ethnical, political or religious oppression.
The decision originated in the complaint of a young Albanian deserter from the Serb-controlled province of Kosovo. The man had refused to comply with a draft order fro the military authorities in Vukovar because, as a member of the Albanian minority, he did not want to fight with the Serbs against the Croats. He claimed that, in the event of his deportation to Serbia, he was threatened with several years imprisonment and maybe the death penalty.
The Highest Administrative Court, inter alia holds: "By considering the non-compliance with the draft exclusively from a point of view of violation of civic obligations, the authority [Ministry of the Interior] failed to appreciate the correlation between draft order and affiliation to the Albanian nationality in Kosovo oppressed by the Serbs".
In what amounts to a serious blame, the court holds that the immigration authorities "omitted to conduct he necessary enquiries on the practice pursued by the authorities in the [deserter's] home country pertaining to the draft of the Albanian minority as compared with other ethnic groups".
Commenting the decision, Theresija Stoisits, a Green MP, said: "The authority will have to become familiar with the fact that one has to deal with asylum applications instead of merely preventing them".
The Ministry of the Interior reacted by both playing down the jurisdictional signifi-cance of the decision and emphasising the judiciary's responsibility for possible effects of the ruling. If the decision prejudices future jurisdiction, Austria is threatened with a new massive influx of refugees, a senior official at the Ministry warned: "Consequently, 24 million people from former Yugoslavia and 1.7 million Kosovo-Albanians are potentially entitled to asylum."
Sources: Ulenspiegel, No.292, 27.10.94; Kurier, 2.10.94.
For the time being, no European state has recognised desertion from armed forces in former Yugoslavia as a ground for granting refugee status under the Geneva Convention.
France has so far been the only state that formally considers desertion claims in asylum applications on condition, however, that the deserter belongs to an ethnic minority within the drafting army.
The Austrian decision could lead to the introduction of a similar practice in Austria. It does clearly not imply a recognition of desertion as a such as a ground for asylum.