Strasbourg, 8 July 2004

CommDH(2004)11

 

Original version in French

REPORT
BY Mr. ALVARO GIL-ROBLES,
COMMISSIONER FOR HUMAN RIGHTS,

ON HIS VISIT TO THE GRAND DUCHY OF
LUXEMBOURG

2 - 3 FEBRUARY 2004

for the attention of the Committee of Ministers
and the Parliamentary Assembly

Introduction 3

General Observations 3

I. Provision for Minors in difficulty 4

II. The place of foreigners in Luxembourg society 7

III. “Multifunction” prison and prison staff 12

IV. Prostitution and trafficking in human beings 13

V. Justice and police 14

VI. Domestic Violence 14

Final observations and Recommendations 15

ANNEX TO THE REPORT………………………………………………………………….17

Introduction

In accordance with Article 3 e) of Committee of Ministers Resolution (99) 50 on the Council of Europe Commissioner for Human Rights, I was pleased to accept the invitation extended by Ms Lydie Polfer, the Luxembourg Minister of Foreign Affairs, to pay an official visit to Luxembourg on 2 and 3 February 2004. I was accompanied on my visit by Ms Satu Suikkari and Mr Julien Attuil. I would like first of all to thank the Minister of Foreign Affairs for all the resources which her Ministry provided to ensure the success of my visit, and would thank in particular Ms Anne Goedert for her indispensable support in organising the event. I should also like to thank Ambassador Mayer, the Permanent Representative of Luxembourg to the Council of Europe, for his invaluable help in preparing the visit and for accompanying me on the journey. Lastly, I would express my warm gratitude to the various Luxembourg authorities for their openness and unstinting co-operation.

During the visit I held discussions with Mr Jean-Claude Juncker, Prime Minister, Ms Lydie Polfer, Minister of Foreign Affairs, Mr Luc Frieden, Minister for Justice, and Ms Marie-Josée Jacobs, Minister for Family, Social Solidarity and Youth and Minister for the Advancement of Women. I also met the President and members of the Advisory Committee on Human Rights, the President of the Higher Court of Justice, the State Prosecutor and other magistrates, a representative of the Luxembourg Bar, the President of the Chamber of Deputies together with a number of members of the Legal Affairs Committee and of the Luxembourg Delegation with the Parliamentary Assembly of the Council of Europe, the new Ombudsman of the Grand Duchy of Luxembourg, the Director-General of the Grand Ducal Police Service, and various police officers. Lastly, I held exchanges of views with representatives of the civil society and visited the Luxembourg Prison, concentrating on the sections reserved for under-age persons and foreigners, as well as the Schrassig State Socio-Educational Centre (CSEE). In this connection I would like to thank the Prison Director and his team, as well as the Director of the Socio-Educational Centre and the youth workers I met, for their extremely helpful and forthcoming attitude.

General Observations

    1. Luxembourg has long been a fervent defender of human rights and an ardent protector of democratic values. A founding member of the Council of Europe and the ECSC, Luxembourg enthusiastically plunged very early on into the adventure of constructing a just Europe united around basic human values. It was therefore no surprise when, in the run-up to the enlargement of the European Union, Luxembourg came to be used as a model and inspiration, but also as a counsellor, for many future member States.

    2. As regards its human rights commitments vis-à-vis the Council of Europe, Luxembourg was one of the first States to ratify the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter “ECHR”) on 3 September 1953, going on to ratify Protocols Nos. 1, 4, 6 and 7. It has also signed Protocol No. 13 concerning the abolition of the death penalty in all circumstances. In the social field, Luxembourg has ratified the European Social Charter. As a final comment in this connection, I might suggest that Luxembourg could complement its commitments in the fundamental rights field by ratifying Protocol No. 13 and Protocol No. 12 concerning the elimination of all kinds of discrimination, as well as signing and ratifying the Additional Protocol to the European Social Charter providing for a system of collective complaints.

    3. It is greatly to Luxembourg’s credit that every decision taken by the European Court of Human Rights1 (hereafter “the Court”) is immediately followed by a debate on the national legislation at issue and leads to new proposals for reform aimed at preventing any further violations. This desire for reform and transparency must be wholeheartedly welcomed and approved. In fact, it was because of this determination to reinforce the protection of its citizens that the Government recently created the office of Ombudsman. There can be no doubt that such an institution will play a prominent role in improving respect for the fundamental rights.

    4. However, some problems still remain in the fields of provision for young people in difficulty, certain aspects of the place of foreigners in society (particularly asylum-seekers and illegal immigrants), combating prostitution and trafficking in human beings, a number of organisational problems facing prisons and some delays in judicial investigations into economic and financial cases. During my visit I gained the impression that the Luxembourg authorities had a very open attitude to discussing the situation with regard to all these issues and would strive to identify the means of improving it as quickly as possible.

I. Provision for Minors in difficulty

    5. The system for protecting under-age persons in Luxembourg is based on a Law adopted on 10 August 19922 (LPJ). This Law empowers the Youth Courts to adopt measures in the interests of the child in question. The Court can adopt measures concerning the custody, education and protection of the young person, who may be fostered in a family or placed in an “open centre” (State Socio-Educational Centre [CSEE]), or, if required by the child’s circumstances or behaviour, in a “closed centre”, namely the Luxembourg Prison.

    6. One preliminary remark we might make is that Luxembourg criminal law provides that under-age persons are never responsible for their actions. The LPJ incorporates the principle that a person who was under the age of 18 at the time of commission of a criminal offence must be brought before the Youth Court rather than a criminal court. Consequently, the Youth Court can order placement of the young person even where he/she has not been convicted of any alleged offence. However, the Law also stipulates that the court may issue a placement o rder vis-à-vis “minors who habitually fail to

    attend school, engage in immoral practices [etc] and whose physical or mental health is at risk”3. It follows that young offenders and under-age persons in difficulty are placed in the same structures.

    7. The fact is that it would be desirable not to mix young “offenders” with other minors. Without stigmatising the “offenders”, it seems obvious that they require a different type of educational and rehabilitation work from young people who are facing social or affective problems. Moreover, separating offenders from problem youngsters could help prevent the latter from lapsing into delinquency under the influence of the former. It would therefore be useful as far as possible to keep under-age persons who could be described as “young offenders” separate from other minors.

    8. Discussions should also be initiated on the duration of placement. I noted that decisions to place young people either in open centres or in prison are given for indeterminate periods, at least until the young person in question comes of age. It would appear that in practice the Youth Court frequently reviews the situation of minors, which very fortunately precludes any unjustified placements in the centres. However, this uncertainty makes it difficult for support staff to get together with the minor to construct a genuine educational project to be completed by a specific deadline. Moreover, it has an extremely negative effect on the children in question: it prevents them from preparing their immediate future and leads to grave doubts about their longer-term future. This situation could easily be improved by, for example, asking the Youth Court to specify an indicative period of placement, particularly when under-age persons are kept at the Luxembourg Prison.

A. Living conditions in the “CSEEs” (State Socio-Educational Centres)

    9. Under-age persons who are to be placed in an open State rehabilitation establishment are taken into the Dreiborn CSEE (for boys) or the Schrassig centre (for girls). These semi-open centres provide the children with socio-educational and vocational training activities, and also carry out preventive work with them.

    10. General living conditions at the Schrassig CSEE looked excellent. The premises were well looked after, providing a suitable environment for the young people, and the staff seemed well aware of the importance of their task. For instance, the Centre management prefers to send the young people to outside schools in order to keep up the vital link between the child and society. Where outside schooling proves impossible, the youngsters can attend mixed classes inside the establishment.

    11. Nevertheless, I also noted during the visit that the disciplinary system was open to improvement, particularly in terms of the conditions for placing minors in solitary confinement. Under Article 10 of the Grand Ducal Regulation of 9 September 19924 the Director of the Centre may order the placement of a young person in the solitary confinement area for a duration of 10 days renewable, under certain conditions. Furthermore, there is a “scale” for the more common offences5. While the Director does have the option of solitary confinement, he can also mitigate the penalty, which he apparently often does.

    12. While I do not contest the need to have a number of sanctions available, the same cannot be said of the conditions under which young people are placed in solitary confinement at the Schrassig Centre. The solitary confinement area comprises 6 cells fitted only with a bed and a washbasin fixed to the wall, a larger room with a table and some chairs, and a washing area with showers and toilets. Article 11 of the regulations stipulates that minors on whom a disciplinary measure has been imposed may be deprived of training, work, leisure and collective activities and the use of personal effects. In practice, the children can only use a very limited number of their personal effects, and are subject to special educational arrangements during this period6. Such strict application of the regulations, the near-complete lack of contact with other persons, in addition to the fact that the youngsters have no access to any outdoor areas for the duration of their confinement (which also prevents them from relaxing anywhere other than in their cells), can greatly distress the children. During my conversations with the young residents of the Centre I noted that any mention of solitary confinement frightened the younger ones7, and that they all found the penalties disproportionate. I personally consider the near-total isolation of the penalised minors excessive, and would invite the Luxembourg authorities to relax the conditions for solitary confinement, inter alia by providing the youngsters in question with access to an outdoor area for at least one hour a day and giving them access to some kind of recreational facilities (TV, games, etc).

B. Conditions of detention in the Luxembourg Prison

    13. Article 6 LPJ provides that the Youth Court may place an under-age person in a “State disciplinary establishment” in cases of misconduct or dangerous behaviour. Such placement can be ordered by the Court on the minor’s first appearance, or where it considers that the latter should not attend an open centre, or where it is noted that a minor placed in a CSEE cannot remain in the Centre without endangering his/her own health or that of other persons. As in the case of placement in an open centre, the issue of an indeterminate period of placement is an obvious problem. Furthermore, there is another problem which I consider equally disturbing.

    14. The “State disciplinary establishment” used for accommodating under-age males is in fact a special section of the Luxembourg Prison, the Centre Pénitentiaire Luxembourgeoise. I did not have time to meet any young female inmates during my visit, but they are held in a separate area, in the section of the prison reserved for female prisoners. I noted when inspecting the premises that the young people are not kept completely separate from the adult prisoners, and that contact between both groups is common, with the youngsters using certain facilities intended for the adult prisoners8. The lack of specific amenities for minors leads to a number of difficulties, including a restriction on activities outside the cells, especially at weekends when there are fewer prison staff members on duty.

    15. Some progress has been made in the material conditions of detention. The young inmates are now in an area exclusively set aside for them, no longer being accommodated, as they were until recently, on the top floor of the prison's high-security block, where they were in direct contact with the toughest prisoners. However, in order to put an end to this thorny problem, I would invite the Luxembourg Government, as the CPT has been repeating since 1993 and as the United Nations Committee against Torture also recommended in its last report9, to prioritise the construction of a building specially earmarked for young detainees in order to keep them separate from the main prison, which cannot be considered a suitable environment for minors.

II. The place of foreigners in Luxembourg society

A. The place of legally resident foreigners

    16. Luxembourg has 440 000 inhabitants, 38% of whom are not Luxembourg nationals (13% hold Portuguese nationality). This situation is explained by two specific features of the country. Firstly, its geographic location has made Luxembourg a transit area but also a receiving country throughout history. Furthermore, Luxembourg became a major immigration country in the 1970s when the national mining sector was booming. Secondly, this large foreign population is affected by the country’s restrictive policy on nationality. At the moment Luxembourg law prohibits people from holding dual nationality10. This specificity, whose perpetuation is currently under discussion, has not prevented Luxembourg from ensuring the representation of foreigners’ interests and their participation in public life.

1. Participation in public life

    17. Luxembourg has a longstanding policy of promoting the integration of its foreign population into civic life. Since 198911, for instance, foreigners have been represented in their municipalities by Municipal Advisory Boards for Foreigners, which are mandatory bodies for all municipalities with a resident population of over 20% foreigners. The Boards are responsible for representing the interests of foreign residents at the municipal level, including ensuring participation by foreigners in municipal life, presenting the authorities with proposed solutions to specific problems involving foreigners and facilitating relations between the foreign and national populations. While we can only welcome the existence of such bodies, it should be noted, as ECRI pointed out in its last report12, that they could be more representative, because at the moment they are made up of equal number of Luxembourg and foreign members of the municipality, and particularly because the whole membership is appointed by the Municipal Council. I would therefore invite Luxembourg to consider the possibility of making these bodies more representative of the foreign population in order to reinforce their role in ensuring participation by and integration of all citizens in municipal life.

      2. Voting rights

    18. In February 2003 Luxembourg adopted a law allowing non-Community foreigners to vote in local elections. This means that all residents in the country will be able to take part in the forthcoming municipal elections in 2005. However, I noted that the closing date for registration was 18 months before the elections, partly for organisational reasons. Even though it is regrettable that registration will stop so far in advance of the local elections, I can only welcome this opportunity for all Luxembourg residents to take part in voting.

B. Treatment of asylum-seekers

      1. Asylum procedure

    19. Asylum procedure is under the competence of the Ministry of Justice. In 2003, a total of 1549 persons applied for asylum in Luxembourg, constituting the largest number of asylum-seekers since 1999, at the height of the Kosovo conflict. Over the past year more than one-third of all asylum-seekers have been from Serbia and Montenegro, with total numbers from other countries never exceeding one hundred per State.

    20. Persons wishing to submit an application for asylum in Luxembourg have to be registered by the competent governmental services. On registration, asylum-seekers are issued with an administrative document entitling them to a wide variety of benefits, given that the Luxembourg asylum procedure does not allow asylum-seekers to work. The State provides for their material needs13 until all available legal remedies are exhausted.

    21. The benefits provided for asylum-seekers while their applications are being processed, and often for a long time thereafter14, are undeniably generous. In view of the large number of asylum-seekers as compared with its population and the length of the proceedings, Luxembourg uses a great number of reception structures to accommodate all these individuals. A number of NGOs informed me that some of these centres, particularly the Don Bosco Centre, were no longer in a position to provide its occupants

      with decent accommodation. My discussions on this subject with the Minister for Family Affairs lead me to hope that an early solution will be found whereby the centre can be renovated or new installations provided.

    22. It emerged from talks that the asylum procedures were too lengthy and created difficulties for rejected asylum-seekers in returning to their countries after a protracted stay in the country. At the time of my visit, the staff of the Justice Ministry department responsible for asylum procedures only comprised four persons responsible for examining and processing asylum applications. In view of the time currently taken for processing files and the potential of Luxembourg for attracting asylum-seekers, consideration should be given to increasing the staffing of this ministerial department, as this would expedite the processing of applications. Lastly, in reply to the argument that there are financial reasons for this understaffing, I would point out that the fact of maintaining asylum-seekers in Luxembourg territory for long periods is also very expensive to the community in terms of economic and human resources.

    23. Where the asylum application is rejected, and failing an application to the Ministry of Justice to reconsider its decision, the foreigner can appeal against this decision to the administrative courts – the tribunal administratif (Administrative Court) and the cour administrative (Administrative Court of Appeal). The NGOs drew my attention to a number of individual cases of extradition that had taken place in spring 2003, on which the CCDH (Advisory Committee on Human Rights) has drawn up a highly instructive report15, revealing that the judicial system is empowered to consider all the claims put forward by rejected and/or expellee asylum-seekers. In the light of these events I would like to reiterate that it is absolutely necessary to submit all legal proceedings in the asylum field to a court competent to appraise whether the person in question is going to be sent back to a country where his/her life or freedom would be under threat16 and whether his/her return to such a country would be contrary to the principles of the ECHR. Moreover, I must stress the absolute, incontrovertible nature of the guarantees set out in Article 3 of ECHR, which prohibit the expulsion of a foreigner liable to be subjected to inhuman treatment or torture, even if he or she poses a threat to national security17.

      2. Situation of asylum-seekers whose application has been rejected

      a. Voluntary return

    24. In 1999 Luxembourg introduced a voluntary return procedure for foreigners involving substantial financial and logistical assistance. Persons accepting “assisted” returns are eligible for a maximum grant of € 1190 per adult and € 595 per child, plus assistance with repatriating personal effects. While this is a commendable policy and must be welcomed, its implementation still poses some problems. First of all, the sum is granted on a gradually diminishing scale and does not take account of the possibility of rejected asylum-seekers appealing against the decision before the administrative courts. This means that foreigners must choose between appealing and obtaining the full grant for assisted return. Furthermore, the sum provided fluctuates depending on the person’s date of arrival, and it has recently been modified several times, which means that the persons in question can never know exactly how much they will in fact be receiving. Obviously, some of these dysfunctions are explicable by the fact that this assistance is recent in date and that Luxembourg must still cast round for the optimum solution to encourage the return of migrants. I would therefore invite Luxembourg to adopt a more consistent policy in this field in order to make the system of voluntary return, with its major advantages for rejected asylum-seekers, more predictable and transparent.

      b. Foreigners “placed at the Government’s disposal”

    25. In 2001, the average period of “placement at the Government’s disposal” (administrative detention of foreigners pending their removal) was 28.5 days, falling to 17 days in the first quarter of 2002. While there is no problem with the material conditions of detention, it would appear that the presence of detained expellees in the prison is leading to a number of difficulties.

    26. Until recently, given that Luxembourg has no special structures for detaining such foreigners, they were held in the prison with the convicted prisoners. Further to two judgments of the Administrative Court of Appeal18, a special “aliens” section was set up under a Grand Ducal Regulation of 20 September 200219 inside the premises of the Luxembourg Prison. However, although efforts have been made to keep the prisoners and the foreigners completely separate, contact apparently continues, particularly in the women’s section. Lastly, the lack of an appropriate structure has sometimes resulted in de facto solitary confinement. For instance, I was informed that a number of women had been detained for several days without any direct contact with other persons.

    27. During my visit to the detained aliens section I also noted the extreme dearth of activities provided for them. Owing to the lack of staff, the inappropriateness of the place of detention and the need to keep detainees, remand prisoners and convicted prisoners apart, foreigners “placed at the Government’s disposal” only have one hour of exercise outside their cells per day. Theoretically they can join in the same activities as the prisoners, namely sports and work, with the authorisation of the Ministry of Justice and the Director of the Luxembourg Prison, but in practice they very seldom take part in these activities because of the language barrier and slow bureaucratic procedures. Consequently, detained foreigners spend most of their days shut up in their cells despite the existence of a common room. I would therefore invite the authorities to introduce specific activities for these detainees as quickly as possible and to provide them with greater access to outdoor areas.

    28. Moreover, restrictions on visits to the foreign detainees are severer than in respect of actual prisoners, which places the foreigners in a situation of de facto abandonment. For some of these people visits are their only means of communicating with a person capable of understanding their language. Although a regulation20 was recently issued permitting foreigners to invite anyone with whom they wish to meet, this rule is still highly restrictive because detainees must send a letter of invitation to the person whom he or she wishes to meet. Furthermore, such “meetings” cannot be held until 4 days after the beginning of the detention, for family members, and 10 days after for NGO members. NGOs are not issued with a general pass, and each member must apply for individual authorisation21. During my talks with the Minister of Justice, the latter undertook to reduce the aforementioned period of time. I consider that this period should be cut back to a minimum or even abolished altogether, given that the detainees have nothing to do all day. Moreover, many repatriations are carried out before this period has elapsed, which deprives the expellee de facto of the opportunity of seeing his/her family and friends or of obtaining advice from an NGO on his/her rights.

    29. Lastly, it would appear that the limitations of the current system of detaining foreigners in prison are liable to become evident in the near future because of the number of places available and their unsuitability for the specific needs of aliens. It is therefore essential that Luxembourg begin discussions right away on the expediency of opening a centre exclusively earmarked for foreigners unlawfully present in the territory, separate from any prison or other detention centre.

      c. Procedure for removing illegal immigrants from the national territory

    30. Removing foreigners forcibly from the territory, a practice recently adopted in Luxembourg, would not seem to present any particular human rights problems. However, the CCDH report on the matter highlights some lack of predictability and transparency in the procedure. I can only second this Committee’s opinion that a coherent policy must be adopted on such a sensitive subject. For example, it may seem surprising for persons unable to leave the territory (owing to a lack of travel documents,

      pending judicial proceedings) nonetheless to receive an invitation to do so; on the other hand, some forced removals are carried out without prior notice. The removal procedure, and more generally the system for protecting aliens, would be easier to observe if it were more consistent.

    31. The CCDH also advises Luxembourg to adopt a number of measures, including the preventive one of “introducing into national law specific regulations absolutely prohibiting such practices as partial or total obstruction of the respiratory tract and the use of asphyxiating or incapacitating gases”. In the light of my Recommendation of 19 September 200122, I can only support this initiative with a view to preventing any such measures from being used in future. Further, Luxembourg might also consider authorising the presence of a representative of a humanitarian organisation23 throughout the removal procedure, in order to guarantee its transparency and respect for the fundamental rights of the persons being repatriated.

III. “Multifunction” prison and prison staff

    32. Luxembourg has one single prison for the whole country, the Centre Pénitentiaire de Luxembourg (CPL). I would like first of all to stress the fact that the material conditions in all the various buildings I visited were very adequate. The management and support staff with whom I talked seemed to be alive to the prisoners’ problems and aware of the need to treat these people as humanely as possible. Nevertheless, the lack of specific structures in the country for certain groups of individuals who must be removed from society causes problems in the CPL. As stated above, the CPL takes in both convicted and remand prisoners, but also foreigners in administrative detention and minors. This situation also causes staffing difficulties.

    33. Luxembourg would appear to suffer from a structural lack of prison support staff. It emerged from my discussions with the Director of the CPL that the latter had insufficient staff to guarantee proper supervision of all these different categories of detainees. Furthermore, some instructors’ posts had remained vacant because there had been no applicants of Luxembourg nationality, given that such posts were subject to a special nationality clause24. Accordingly, consideration might be given to opening these posts to non-Luxembourgers, especially since foreigners account for a large percentage of the prison population25. I would therefore invite Luxembourg to continue its reforms by bringing the number of wardens into line with the real needs in the CPL and opening up certain specialist posts to non-Luxembourgers.

IV. Prostitution and trafficking in human beings

    34. Luxembourg has some 60 cabarets which are legally regarded as entertainment establishments and permanently employ some 350 artistes, virtually all from outside the European Community. Cabaret artistes enter Luxembourg under a special visa valid solely for Luxembourg territory. In order to obtain this visa, artistes must produce a contract of employment with the cabaret. On the basis of this contract Luxembourg issues a visa authorising the artiste to remain in Luxembourg for a renewable period not exceeding 6 months. Subsequently, given that the visa is issued on the basis of the contract, the artistes are totally dependent on the cabaret bosses. Every year, according to information which I secured from the authorities, Luxembourg issues visas to approximately 1200 artistes, most of whom are from central and east European countries.

    35. Where their legal status is concerned, cabaret artistes are considered under case-law as unpaid workers who are exempted from the work permit requirement26, and since they do not form a specific separate group, they are included in the socio-occupational category of independent intellectual workers27.

    36. The artistes are paid on a “fees” basis and therefore do not benefit from the ordinary-law social security scheme. Luxembourg labour law provides for regular medical examinations (recruitment tests, maternity examinations, etc) only for the actual employees of entertainment establishments, to the exclusion of artistes28. Lastly, and above all, owing to their precarious legal status, they are “exempted” from compulsory social insurance29. It is therefore clear that once they have entered Luxembourg territory these artistes are bereft of any kind of protection in terms of the right to work or social cover.

    37. This means that the artistes are completely dependent on their employers, and this situation, combined with the liberal regulations on artistes’ visas, can only encourage the development of traffickers’ networks and expose these persons to a risk of trafficking in human beings.

    38. I ascertained from talks during my visit that State representatives were well aware of the problem and that the subject had even been debated several times in Parliament. The Government authorities also told me that they wanted to identify a solution to the problem. I therefore invite the authorities to urgently review its policy in this field, restricting the issuing of this type of visa in order to prevent any risk of the procedure being used for unlawful purposes. Further, I would invite the authorities to introduce an effective system for protecting witnesses in order to facilitate the dismantling of possible networks for trafficking in human beings, while at the same time protecting the victims of this criminal trade. Obviously, such changes cannot, on their own, put an end to such trafficking, and Luxembourg can only provide a lasting solution to the problem of trafficking in women by stepping up its co-operation with all the other European countries.

V. Justice and police

A. Length of judicial proceedings

    39. While my interview with representatives of the judiciary revealed that the Luxembourg judicial system overall operates smoothly, I also noted that some problems remained vis-à-vis the length of criminal proceedings. In the 1980s, the financial boom in Luxembourg and the country’s general attractiveness led to growing numbers of complex economic and financial cases. This increase in the number of judicial cases, combined with some lack of organisation and staffing in the judiciary and the police department, led to a sizeable backlog of cases. Nevertheless, the Luxembourg authorities have recently taken steps to reduce the time taken for prior judicial investigations.

    40. Between 2000 and 2004 the number of investigating judges was doubled and working methods were reorganised in the judiciary and police. Moreover, I was told that investigating judges have always given priority to cases in which the defendant was remanded in custody in order to reduce the length of such detention to a minimum. The reforms initiated have not yet come fully to fruition, which is why I would invite the Luxembourg authorities to remain vigilant as to the efficacy of this reform and to increase the resources available to the judiciary if the need persists.

B. Police violence

    41. Luxembourg has recently seen the emergence of excessive use of force by police officers, particularly during demonstrations. Such violent incidents are limited in number and have only occurred in very particular circumstances, but they are nonetheless disturbing. I mentioned this problem to the Director General of the Grand Ducal Police, who undertook to enter into constructive dialogue with representatives of civil society. Such dialogue would simultaneously tackle the complaints submitted by NGOs and prevent such incidents from happening again in future.

VI. Domestic violence

    42. Where domestic violence is concerned, Luxembourg recently adopted a law enabling the person responsible for violence to be evicted from the family home for up to 3 months. The basic principles of this law were based on a system which has already proved effective in Germany and Austria. It means that the victims of the violence are no longer forced to leave home to undergo additional humiliation. The actual implementation of the legislation would seem to be producing useful results. Three months after its entry into force, 66 applications had already been forwarded by the police to the competent public prosecutors. 34 of these 66 applications led to eviction orders. Accordingly, the adoption and implementation of such a law must be welcomed, and I can only hope that other States will follow in Luxembourg’s footsteps in this field.

Final observations and Recommendations

    43. Luxembourg manifestly has a long tradition of respect for human rights and basic human values, and is constantly seeking to ensure increasingly effective compliance with the fundamental rights of the individual. The exchanges of views which I held during my visit with the most senior Luxembourg officials convinced me that the authorities really would do their utmost to solve the small number of problems with which they are currently faced. In order to shore up their firm determination and assist them in pursuing their aims, and in accordance with Article 8 of Resolution (99) 20, I would recommend the following measures:

        1) to accord absolute priority to construction of a special centre for the detention of minors;

        2) to determine, at least on an indicative basis, the duration of placement of minors in open or closed centres;

        3) to humanise the conditions of solitary confinement in the Schrassig CSEE by providing the minors in question with access to an outdoor area;

        4) as far as possible to keep young people who can legitimately be described as “offenders” separate from other minors;

        5) to expedite the processing of asylum applications, notably by reinforcing the team responsible for this task;

        6) as soon as possible to introduce activities for foreigners detained in prison and provide them with greater access to outdoor areas;

        7) to reduce or even abolish the requisite period before foreigners detained in prison can receive visits;

        8) to increase the number of wardens in the Luxembourg Prison and provide access to certain specialist posts for non-Luxembourgers;

        9) to establish effective supervision of the issuing of cabaret artistes’ visas in order to prevent any risk of their being used for such unlawful purposes as trafficking in human beings; and to introduce an appropriate system for protecting witnesses and victims of this criminal activity;

        10) to ratify Protocols 12 and 13 to the ECHR and to sign and ratify the Additional Protocol to the European Social Charter providing for a system of collective complaints.

    44. In accordance with Article 3 f) of Resolution (99) 50, this report is addressed to the Committee of Ministers and the Parliamentary Assembly.

ANNEX TO THE REPORT

Comments of the Government of Luxemburg

The Commissioner for Human Rights has decided to append to his report the following comments submitted by the government of Luxembourg when the report was presented to the Committee of Ministers of the Council of Europe on 8 July 2004.

COMMENTS AND OBSERVATIONS BY THE LUXEMBURG AUTHORITIES ON THE COMMISSIONER FOR HUMAN RIGHTS' REPORT ON HIS VISIT TO THE GRAND DUCHY OF LUXEMBURG

The government of Luxembourg wishes to thank the Commissioner for Human Rights for his report and for the messages of gratitude conveyed to the various government authorities with which he came into contact during his visit.

The Luxembourg authorities confirm that, in line with the Commissioner's conclusion that "Luxembourg … is constantly seeking to ensure increasingly effective compliance with the fundamental rights of the individual", they intend to give all due consideration to the Commissioner's reservations concerning certain matters. In this connection, it should be noted that the relevant ministries have already responded to most of the Commissioner's recommendations.

The Luxembourg authorities set out below their comments on each of the recommendations issued at the end of Mr Gil-Robles' report.

Recommendation 1

A law reorganising the State Socio-Educational Centre was passed on 5 May 2004. It provides for the establishment of a security unit at the Dreiborn Centre.

Mention should also be made of the fact that a recently tabled bill reforming the Law on the protection of young people of 10 August 1992, as amended, includes provisions making changes to section 26 of the above-mentioned law, whereby minors may be detained in prison for a period not exceeding one month. Their effect is to limit this possibility solely to exceptional circumstances where the minor poses a threat to public order or safety.
Recommendation 2

Determining the duration of placement of minors in open or closed centres comes within the Youth Court's jurisdiction. At present, the average length of time spent by minors in the State Socio-Educational Centres is in fact four months.

The average duration for which minors are placed in the disciplinary section of the Luxembourg Prison (CPL) is currently two months. The table below shows the average length of minors' stay in prison, and the variance therein, over the period 2000 to 2003.

Year

Number of minors admitted during the year

Length of stay

Average stay in prison

2000

25

Between 1 day and 23 months

4.5 months

2001

24

Between 1 day and 12 months

3.5 months

2002

45

Between 1 day and 9 months

2.6 months

2003
(first eight months)

26

Between 2 days and 8 months

2 months

Recommendation 3

Further to recommendations made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the authorities responsible for the State Socio-Educational Centres have looked into the possibility of guaranteeing the right to outdoor exercise during periods spent in solitary confinement. The necessary infrastructure work at the State Socio-Educational Centre in Dreiborn was completed at the end of 2003. The work to be done at the Schrassig Centre is scheduled for 2004.

Recommendation 4

The Directorate General of prisons concurs with this recommendation and will take steps to ensure that young "offenders" are kept separate from other minors.

The Supervision and Co-ordination Board has asked the management of the State Socio-Educational Centres to promote the gradual introduction of living units ("groupes de vie"), each of which groups together young people with similar profiles. It should also be reiterated that, in the vast majority of cases, no easy distinction can be drawn between young offenders and young victims within the population of the State Socio-Educational Centres. The State Socio-Educational Centres consider that one of their main roles is to avoid stigmatising misfortunate youngsters who have committed offences and to establish a climate of security ruling out other forms of anti-social behaviour.
Recommendation 5

Since Mr Gil-Robles' visit four additional suitably qualified individuals have been recruited to deal with asylum-seekers. The number of staff has accordingly been doubled with a view to speeding up the processing of asylum applications.

Recommendation 6

This recommendation can be implemented provided that a greater number of supervisory staff are recruited.

Recommendation 7

The Ministry of Justice is currently considering means of reducing the waiting period.

Recommendation 8

On 29 March 2004, at the request of the Minister of Justice, the government decided to establish 15 new posts of warden at the CPL in Schrassig. The recruitment process is under way, and a competitive examination will be held on 5 July 2004.

The issue of access to certain specialist posts for non-nationals is a matter for parliament. As the law stands at present, civil service posts at the CPL can only be held by Luxembourg citizens.

It is true that two posts of instructor are still vacant.

Recommendation 9

At its meeting on 16 April 2004 the Government Council decided that, in connection with the measures to combat trafficking in human beings, Luxembourg would cease to issue visas to nationals of non-EU member states wishing to work in Luxembourg as "cabaret artistes" or in another similar capacity as from 1 May 2004.

The reasons underlying this decision were as follows:

    · This practice had been strongly criticised by the Commissioner for Human Rights, Mr. Alvaro Gil-Robles when he visited Luxembourg at the start of February 2004.

    · On 31 March 2004 the Luxembourg judicial authorities carried out searches of twelve different premises, including two cabarets, and arrested five people, two of whom were so-called artistic agents. Their job consisted in hiring young women, with the assistance of their contacts abroad, to work as artistic performers in a number of cabarets around the country. The investigation revealed that this case involved not only procuring and living on the earnings of prostitution but also trafficking in human beings.

    · Another key element was a judgment delivered by the criminal division of the Tribunal d’Arrondissement de Luxembourg on 19 February 2004, which gave a clear finding to the effect that an employment contract existed between the cabaret performer and the cabaret owner, as a result of which performers were subject to the work permit requirement under sections 24 and 25 of the immigration law of 28 March 1972.

Recommendation 10

The bill ratifying Protocol No. 12 to the European Convention on Human Rights, banning all forms of discrimination, was brought before the Chamber of Deputies on 6 April 2004 and subsequently referred to the Council of State for opinion. Luxembourg should accordingly be able to ratify the protocol in the very near future.

With regard to Protocol No. 13 to the Convention, concerning the abolition of the death penalty in all circumstances, an explanatory memorandum is currently being drawn up by the relevant ministry. Ratification of the Protocol will be possible as soon as the legislative process is completed.

General comment on the situation of asylum-seekers whose applications have been refused (point 25, page 10).

The government is aware that, although the situation of detainees ("placed at the government's disposal") has been better since the establishment of the "Provisional holding centre for illegally resident aliens", there is still room for improvement. The government will continue its efforts in this area.

Note 1 For instance, Luxembourg instigated wide-ranging reforms in its judicial system following the Procola judgment, with changes to the jurisdiction of the State Council and creation of a Constitutional Court.
Note 2 Law on the protection of young people, 10 August 1992, A-No. 70.
Note 3 Article 7 of the aforementioned Law.
Note 4 Grand Ducal Regulation of 9 September 1992 on security and disciplinary rules in State socio-educational centres, A No. 80.
Note 5 For instance, 2 days’ solitary confinement for violence against another resident, and 10 days for drug-taking.
Note 6 A teacher is specially detailed to attend the solitary confinement area, and so the children in question continue with their schooling, albeit in isolation from the other youngsters.
Note 7 CSEEs sometimes take in 11- or 12-year-olds.
Note 8 Including the sick bay, sports installations and the open-air areas.
Note 9 Report by the Committee against Torture, 12 June 2002, CAT/C/CR28/2.
Note 10 Except in cases of dual nationality at birth or where persons cannot renounce their original nationality.
Note 11 Grand Ducal Regulation setting up Municipal Advisory Boards for Foreigners, 5 August 1989.
Note 12 ECRI, second report on Luxembourg adopted on 13 December 2003, paras. 22 and 23.
Note 13 Housing and subsistence, as well as medical benefits and public transport throughout the country.
Note 14 Luxembourg continues to provide accommodation and subsistence for many asylum-seekers whose applications have been rejected pending their return to their countries of origin.
Note 15 Report by the Advisory Committee on Human Rights, Avis sur les perquisitions du 31 mars 2003 et leurs conséquences (Opinion on the official searches conducted on 31 March 2003 and their consequences), 16 December 2003.
Note 16 Article 33§1 of the Convention on the Status of Refugees.
Note 17 See judgment Chahal vs. United Kingdom (15 November 1996, Reports 1996-V), where the Court holds that “whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.” (§80).
Note 18 Gomez, 10 July 2001, No. 13611, and Tyuznyeva, 8 February 2002, No. 15433C.
Note 19 Grand Ducal Regulation setting up a Provisional holding centre for illegally resident aliens.
Note 20 The aforementioned Grand Ducal Regulation of 20 September 2002.
Note 21 CCDH, L’expulsion et le refoulement du territoire des étrangers en situation irrégulière (Refusal of entry to and removal from the territory of illegal immigrants), April 2003.
Note 22 Recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders, CommDH/Rec(2001)1.
Note 23 As is the practice in some States, which authorise the presence of NGOs working in the asylum field.
Note 24 Ministry of Family Affairs instructors’ posts are not subject to this rule.
Note 25 69% of the prison population were foreigners at the time of my visit.
Note 26 Reply provided by the Ministry of Family Affairs, Social Solidarity and Youth on 21 August 2000 to parliamentary questions Nos. 576 and 579 of 25 May 2000; www.chd.lu.
Note 27 Reply provided by the Ministry of Health and Social Security on 4 July 2000 to parliamentary question No. 576 of 25 May 2000; www.chd.lu.
Note 28 Reply provided by the Ministry of Family Affairs, Social Solidarity and Youth, loc. cit.
Note 29 Articles 4 (1) and 179 (1) of the Social Insurance Code.


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