HUMAN RIGHTS COMMITTEE CONSIDERS THIRD PERIODIC REPORT OF LUXEMBOURG

Human Rights Committee
77th session
24 March 2003




Delegation Questioned on the Expulsion of Foreigners;
Religious Subsidies; and Distinction between "Legitimate"
and "Natural" Children



The Human Rights Committee today undertook its consideration of the third periodic report of Luxembourg by questioning a Government delegation, among other things, on legislation concerning the expulsion of foreigners, subsidies for religious groups and the distinction between "legitimate" and "natural" children in Luxembourg.
Introducing his country's report, Alphonse Berns, Ambassador and Permanent Representative of Luxembourg to the United Nations Office at Geneva, said that within the past decade the world had witnessed an interesting period in the evolution of human rights. During this period, awareness of human rights in his country had grown as a result of the wars and human rights violations of the former Yugoslavia and the Great Lakes region of Africa.
Over the last ten years, said Mr. Berns, Luxembourg had dealt with a great number of legal initiatives on, among others, issues such as racism, a constitutional court, an appeals court, the abolition of capital punishment, immigration and asylum.
At the end of its consideration of the report during two meetings, Abdelfattah Amor, the Chairperson of the Human Rights Committee, said in preliminary remarks that Luxembourg's reservations to the Covenant had been shown to be theoretical in nature and should be withdrawn as such. Furthermore, the delegation had clarified that there was no longer any legally substantiated distinction between "legitimate" and "natural" children; the distinction in the civil code was obsolete. The supremacy of the Covenant - and other international treaty law - over national legislation including the Constitution had also been firmly established.
The Human Rights Committee will issue its final concluding observations and recommendations on the third periodic report of Luxembourg at 3 p.m. on Monday, 31 March.
Also representing Luxembourg were Georges Ravarani, President of the Administrative Court; Vincent Theis, Director of the Penitentiary Centre; Anne Goedert, of the Human Rights section of the Ministry of Foreign Affairs; and Joëlle Schaack, of the Ministry of Justice.
Luxembourg is one of the 150 States parties to the International Covenant on Civil and Political Rights and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty. Luxembourg is also a State party to both of the Covenant's Optional Protocols.
The Committee will reconvene at 3 p.m. on Tuesday, 25 March to begin its consideration of the second periodic report of Mali.

Report of Luxembourg
The third periodic report, contained in document CCPR/C/LUX/2002/3, details actions that have been taken by the Government of Luxembourg to implement the provisions of the International Covenant on Civil and Political Rights. In this context, the report states that by a Constitutional amendment, dated 29 April 1999, the abolition of the death penalty in Luxembourg was confirmed, it was also stipulated in the Constitution that the death penalty could not be reintroduced. Moreover, a special chapter had been inserted into Luxembourg's Penal Code, by the Act of 19 July 1997, by which stiffer punishments for the crime of genocide, whether the offence was committed in speech, writing or any other means of communication, were introduced.
Furthermore, the Act of 24 April 2000 was designed to bring Luxembourg's legislation in line with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Before the introduction of this Act, only acts of torture committed by private individuals against other individuals were punishable; it was impossible to punish with sufficient severity State officials who deliberately committed acts of torture. The Act addressed both physical and mental torture and provided for persons being held to have the right to ask for a medical examination and to be assisted by counsel.
The report also notes that a temporary special protection regime hadsbeen established by the Act of 27 March 2000, which covers anyone arriving as part of a mass migration and thus provides more general regulation of mass inflows of asylum-seekers fleeing areas of armed conflict. The temporary protection regime was to be in place for a maximum of three years, after which applications for refugee status could be submitted or resubmitted within one month.

Presentation of Report
Presenting his country's third periodic report to the Committee, ALPHONSE BERNS, Ambassador and Permanent Representative of Luxembourg to the United Nations Office at Geneva, said that the Vice-President and Foreign Affairs Minister of Luxembourg had recently underlined the international community's duty to examine individually the situation of persons in the world and to denounce without prejudice the violation of human rights. The oppression of human rights was not disappearing from the world, but would resurface in society as the result of crises or slackened vigilance.
Since Luxembourg's 1992 report to the Committee, the world had witnessed an interesting period in the evolution of human rights, said Mr. Berns. Luxembourg's awareness of human rights had grown as a result of the wars and human rights violations of the former Yugoslavia and the Great Lakes region of Africa and a number of court rulings had communicated the important place occupied by concepts of human rights in society. Over the last ten years, a great number of legal initiatives on, among others, issues such as racism, a constitutional court, an appeals court, the abolition of capital punishment, immigration and asylum had been taken.

Response to Questions
In response to written questions submitted by the Committee concerning, among other issues, the role of the International Covenant for Civil and Political Rights within the internal legal framework of Luxembourg, the delegation said that since the 1950s, Luxembourg's courts had recognized the superiority of international treaties over national legislation. All international instruments, including the Covenant that had been signed and ratified in conformity with constitutional procedure and the rules of international law took absolute priority over all internal legislation, including the Constitution.
With regard to the detention of minors, a member of the delegation noted that in the case of minors, aged 16-18 years, incarcerated on some criminal charges, the minor could be placed in Luxembourg's adult detention facility. Such an individual would not be kept in the same location as other minors because of the exceptional circumstances of their case. Also, older minors could benefit from the opportunities for training afforded to incarcerated adults.
The Advisory Committee on Human Rights had been created in 2000, said one member of the delegation, to provide opinions and carry out studies on the promotion and protection of human rights, particularly within schools, universities and places of work. The Advisory Committee could issue its positions of its own volition or upon request of the Government. However, the Committee decided independently which questions it would examine and appointed its own members on the basis of their competence in human rights. Furthermore, every citizen of Luxembourg could bring a suit before the Committee, though complaints were most often submitted by non-governmental organizations (NGOs).
A member of the delegation said that according to the law of 28 June 2001, the burden of proof in sexual harassment cases had been shifted from the victim to the defendant and that the law of 31 May 1999 had strengthened protections against trafficking in human beings and the sexual exploitation of minors, including extending the application of Luxembourg's law concerning sexual crimes to cover all acts committed by nationals of Luxembourg in foreign countries, as well as acts committed by non-nationals living in Luxembourg.
While acknowledging that Luxembourg's civil code distinguished between "legitimate" and "natural" children, the delegation affirmed that since the law of 13 April 1979, the rights of "natural" children were equal to those of "legitimate" children. Moreover, since the law of 26 April 1979, all children, legitimate or natural, benefited from the same rights of inheritance.
On the subject of Luxembourg's lack of specific legislation concerning the banning of violence in the family, a member of the delegation said that those responsible for such violence could be punished for assault and battery, among other legislation. However, in response to growing awareness about this issue, a draft law had been submitted in May 2001, whose general guidelines included expulsion by the police of those responsible for violence from the home in order to protect the victims and strengthening the rights of victims' defence associations.
The delegation said that the decision to hold a suspect incommunicado could be made by an instructing judge immediately after a preliminary interrogation if deemed necessary to prevent the suspect from suborning witnesses or communicating to accomplices a common, but false, version of the facts. Individuals could be held incommunicado for a maximum period of 10 days, renewable once. The prohibition of communication did not, however, extend to the suspect's counsel.
As for the use of solitary confinement, the delegation said this measure could be pronounced for individuals considered dangerous or as a disciplinary sanction. In the first instance, the duration of solitary confinement was unlimited, but subject to review every three months. In the latter instance, its duration was not to exceed six months, or in the case of a recidivist, twelve months.
In response to the unusual spate of six suicides between December 1999 and May 2000, a member of the delegation said that the Justice Minister had appointed two independent French experts to look into the situation.
In regard of legislation concerning the expulsion of foreigners, decisions to withdraw legal residents' permission to stay in Luxembourg were made by the Justice Minister, in consultation with the appropriate advisory commission, said the delegation. Affected individuals could request review of the decision by the administrative court; however, the court's decisions were not automatically suspended in case of appeal. Thus, the situation could arise where an individual was deported before a decision was taken on the appeal. The law of 21 June 1999 constituted an attempt to deal with this possibility by allowing for the President of the administrative court to grant a stay of execution on the original decision while the appeal was being considered.
Elaborating the terms under which religious groups might receive subsidies from the Government of Luxembourg, a delegate said that eligible groups must practice a globally recognized religion; the religion must be officially recognized in at least one Member State of the European Union; the group must respect public order; and that it must be well-established in Luxembourg and supported by a sufficiently large and representative community.
In response to oral questions posed by members of the Committee, the delegation addressed, among others, the issue of sexual harassment in the work place. Cases of alleged sexual harassment were taken before the President of the Labour Court. This court was empowered to overturn the dismissal of victims of sexual harassment, or where the victim had not been dismissed the court could enjoin the cessation of harassment. To ensure that frivolous cases were not brought before the court, given the reversal of the burden of proof, the victim still needed to supply factual evidence of sexual discrimination.
Asked to elaborate on the consequences of differentiating between legitimate children and those born out of wedlock, one delegate said that there was the unavoidable differentiation of the child taking the mother's name where paternity could not be determined, but that in all other respects, there was equality between the children of both categories. The delegation could offer the Committee no statistics regarding the number of natural versus legitimate children born in Luxembourg, as this was not calculated because it would contribute to stigmatising those born out of wedlock.
Asked whether issues such as the human rights situation or application of the death penalty in the country of origin were considered in cases of the expulsion of foreigners from Luxembourg, a member of the delegation said that each case was examined individually to see whether or not expulsion to the home country would give rise to physical, mental or moral suffering. Where human rights were not respected in the country of origin, the individual in question would not be subject to expulsion.
On the subsidisation of religious associations in Luxembourg, the delegation said this policy was designed to stimulate discussion of and participation in religion. The characteristics determining eligibility for subsidisation represented Luxembourg's efforts in distinguishing between religion and religious sects.
Negotiations were currently under way, but had not yet been concluded, for the subsidisation of the Muslim religion in Luxembourg, the delegation added. Prior to the influx of refugees stemming from the wars in the former Yugoslavia, particularly in Bosnia and Herzegovina, adherents to Islam were not very numerous within Luxembourg.
Raising the issue of minorities, the delegation noted that 39 per cent of the population of Luxembourg was composed of foreigners, most of whom had immigrated quite recently. Given the large number of workers commuting across borders, the Parliament had adopted measures to provide for ease of access for foreign workers.
There had also been efforts to facilitate linguistic access, the delegation noted; requests for information could be submitted to the Government in the language of the petitioner's choice and reasonable efforts were made to respond in that same language. Luxembourg, French and German remained the most commonly used tongues. Moreover, it was not uncommon for the Government to answer requests for information in English as well as Portuguese.

Preliminary Remarks
The Human Rights Committee will issue its final concluding observations on the third periodic report of Luxembourg at 3 p.m. on Monday, 31 March.
ABDELFATTAH AMOR, Chairperson of the Human Rights Committee, said that there had been some discomfort with the brevity of the report among Committee members, but that this had been surmounted by the copious documentation and the lengthy written response provided by the delegation to the Committee's written questions, as well as through the delegation's answers to the Committee's subsequent oral questions.
A number of conclusions could be drawn from the discussion thus far, said Mr. Amor. Luxembourg's reservations to the Covenant had been shown to be theoretical in nature and should be withdrawn as such. Furthermore, the delegation had clarified that there was no longer any legally substantiated distinction between "legitimate" and "natural" children; the distinction in the civil code was obsolete. The supremacy of the Covenant - and other international treaty law - over national legislation including the Constitution had also been firmly established.
There were issues over which questions marks continued to hang, added Mr. Amor, such as the practices of holding suspects incommunicado and the use of solitary confinement as a punishment. These deserved further reflection as to their compatibility with Articles 7 and 9 of the Covenant. Moreover, the criteria for defining religions that had been retained until this point could be legitimately discussed. It should also be noted that with regard to Government subsidies, there was no legislation as to equality of financial support; applications continued to be treated on a case-by-case basis.



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