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Deserter’s Case Sent To EU Court for Clarification

André L. Shepherd, a U.S. Army deserter, listens as his lawyer Reinhard Marx explains why he thinks that German officials were wrong to deny Shepherd's asylum request  Michael Abrams/Stars and Stripes

A Munich court considering the appeal of a U.S. soldier seeking asylum in Germany after deserting his Iraq-bound unit in 2007 has forwarded the case to a European Union court in Luxembourg for clarification of EU law, according to the soldier's attorney.

Andre Shepherd, a former helicopter mechanic stationed in Ansbach, Germany, claims his fears of persecution for refusing to deploy to Iraq, where he claimed a fear of being part of war crimes, were substantial enough to merit refugee status under European law.

A German court disagreed in 2011, saying Shepherd couldn't show enough evidence.

Shepherd's attorney, Reinhard Marx, says the court's standard of proof was too strict. Instead of requiring Shepherd to show "beyond a doubt" that he had reason to fear involvement in war crimes, it should have permitted a "well-founded fear," a phrase used in the text of the 1951 Geneva Convention on refugees.

"This had to be clarified by the European court," Marx said. "And the main issue is standard of proof -- what kind of standard of proof do deserters have to establish in the European asylum system."

Marx announced in January that the Munich court had accepted his request to appeal to the EU court; it formally suspended Shepherd's case in recent days and sent his case files to Luxembourg, where they will be examined by the court and the 28 EU member states. The attorney said he also will seek an oral hearing on the issue in the future. He expects the court to return an answer to the Munich court, which will decide Shepherd's appeal, in about two years.

Shepherd, meanwhile, continues to live and work outside Munich as he awaits a resolution to his case. He left his unit, the 12th Combat Aviation Brigade, in 2007 and applied for asylum in 2008, speaking vocally about his opposition to the Iraq War.

In an interview earlier this year, he said he would never return to the U.S. for fear of being imprisoned.

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