Committee against Torture considers the report of Luxembourg

Committee against Torture

28 April 2015

The Committee against Torture today concluded its consideration of the combined sixth and seventh periodic report of Luxembourg on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Jean-Marc Hoscheit, Permanent Representative of Luxembourg to the United Nations Office at Geneva, described legislative developments which included the ratification of the Optional Protocol to the Convention and Council of Europe conventions against trafficking, the sexual exploitation of children and domestic violence.  In 2014 Luxembourg received 1,091 persons seeking international protection.  It had a long-standing tradition of resettling refugees and recently resettled 76 Syrian refugees into the country.  There was no overcrowding in prisons in Luxembourg and the prison population had decreased to 598 detainees.  A new penitentiary centre and a new juvenile detention centre were being completed.  Alternative sanctions to imprisonment were sought and the use of open prisons promoted.  Any complaint of torture or cruel, unusual or inhumane treatment was promptly investigated.  Mr. Hoscheit also spoke about human rights training programmes for police officers and other law enforcement officials and actions taken to combat trafficking in persons.  

During the interactive dialogue Committee Experts said Luxembourg was one of the rare States for which the Committee had not received any complaints of torture, and one of the only States which did not have overcrowded prisons, which was commendable.  The Experts asked about the use of solitary confinement in prisons, detention centres for juveniles, and conditions for detainees in police custody.  Luxembourg was commended for having adequate facilities to receive asylum seekers and for its non-use of administrative detention for irregular migrants unless they were deemed a threat to national security.  Experts asked how asylum seekers were screened for signs of torture, and raised issues concerning forced returns, healthcare and conditions in the Findel Holding Centre for irregular migrants.  Other issues raised included two complaints of disproportionate use of force by the police, racist and xenophobic attitudes towards migrants, measures to combat violence against women, and human rights training for law enforcement officials. 

Claudio Grossman, Committee Chairperson, in concluding remarks, thanked the delegation for their answers and comments which would be important in allowing the Committee to perform its function. 

In concluding remarks, Mr. Hoscheit said the work of the Committee against Torture underpinned both the foreign policy and the domestic practice of Luxembourg.  The review process was a salutary exercise for soul-searching, guided by the Experts and inputs of non-governmental organizations on national procedures and similarly important to keep the Committee apprised of legislative developments.

The delegation of Luxembourg included the Director of Immigration within the Ministry of Foreign and European Affairs, the Director of Penitentiary Centres of Luxembourg within the Penitentiary Administration, and the Permanent Mission of Luxembourg to the United Nations Office at Geneva. 

The Committee will next meet in public at 10 a.m. on Wednesday, 29 April to start its review of the second periodic report of Serbia (CAT/C/SRB/2).
 
Report

The combined sixth and seventh periodic report of Luxembourg (CAT/C/LUX/6-7).
 
Presentation of the Report
                                                                                                   
JEAN-MARC HOSCHEIT, Permanent Representative of Luxembourg to the United Nations Office at Geneva, said the combined sixth and seventh periodic report of Luxembourg demonstrated its commitment to preventing and eradicating torture and all forms of cruel, inhumane or degrading treatment or punishment.  He noted that the report had been drafted in consultation with the National Human Rights Institution of Luxembourg and non-governmental organizations that were active on the issues contained within the Convention.  Mr. Hoscheit described legislative reform during the reporting period, which included the ratification of the Optional Protocol to the Convention in 2010, the Council of Europe Convention on Action against Trafficking in Human Beings in 2008, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse in 2012, and the Council of Europe Convention on Preventing and Combatting Violence Against Women and Domestic Violence in 2011.   

In 2014 Luxembourg received 1,091 persons seeking international protection and it was regrettable to note that many of them were vulnerable persons, including unaccompanied minors, persons with disabilities and persons who had suffered trauma or even acts of torture, said Mr. Hoscheit.  The Government had recently approved two bills which would ‘flesh out’ the European Union ‘Asylum Package’ of 2013, including international protection benefits, the reinforcement of respect for the principle of non refoulement and a new definition of grounds of persecution for being a ‘member of a certain social group’.  Returning refugees to their country of origin or integrating them into the first country they arrived in was often not possible and Luxembourg had a long-standing tradition of resettling refugees, especially Vietnamese, Albanian and Iraqi nationals.  Since the dramatic situation in Syria began the Government had accepted 75 Syrian refugees from camps in Jordan and Turkey and resettled them in Luxembourg. 

Due to a decrease in the prison population there was now no prison overcrowding in Luxembourg.  There were 598 detainees as of March 2015 compared to 623 detainees in March 2014, which remained short of the critical capacity of 700 detainees.  Mr. Hoscheit said a 2014 act authorized the construction of a new penitentiary centre which would ease congestion in the current Luxembourg Penitentiary Centre by 2020.  The construction of a juvenile penitentiary centre was completed in 2014 and it would be opened after the adoption of some final pieces of legislation.  Additionally the Government was increasingly seeking alternative sanctions to imprisonment and promoting the use of open prisons.  The fight against trafficking was a priority and tangible progress had been made in recent years thanks to multi-disciplinary efforts.  A new anti-trafficking law was adopted in 2014 and a national strategy was being implemented.  Concrete measures had been taken to assist prostitutes in leaving prostitution.  There had been extensive training programmes for police officers and other law enforcement officials and rigorous hierarchical inspections were carried out.  Any complaint of torture or cruel, unusual or inhumane treatment was investigated.  In 2014, 12 complaints of ill treatment were received, of which four were classified as ‘non pursuable’.  No disciplinary procedures had been taken for ill-treatment, confirmed Mr. Hoscheit.

Questions by Committee Experts

Luxembourg was one of the rare States for which the Committee had not received any complaints of acts of torture, which was unusual, noted an Expert.  He asked what measures had been taken to sensitize people about the Convention against Torture and the subjects it covered, and whether people in Luxembourg were aware of how to contact the Office of the Ombudsman to make a complaint. 

The two prisons of Luxembourg, which were located in Schrassing and Givenich, were well under capacity, with combined occupancy of 598 detainees as of March 2015 and an overall capacity of 700, so overcrowding in prisons in Luxembourg was not a problem.  There were very few countries in the world that did not have a problem with overcrowding in prisons and so that was very positive and commendable, said the Expert.   He noted that a new prison was being built in Uerschterhaff which would provide 400 additional places.  He asked for a progress report on plans to open a new institution for juvenile detainees in Dreiborn.  

The use of solitary confinement and how it was regulated by law was raised, with an Expert asking what the maximum length and application criteria were.  He noted that there were 12 complaints of ill treatment in 2014 and that four of those cases had been dismissed, and asked for an update on the investigations.  

Regarding deprivation of liberty by the police, an Expert asked whether the recommendations made following the last inspection visit, contained in a report published on 3 February 2011 by the Independent Prison Inspector, had been applied.  The recommendations for police cells included the use of washable mattresses in cells to avoid detainees having to sleep on a blanket or directly on the floor and the installation of toilets in cells that did not have them.  There had been two complaints of a disproportionate use of force, one from a minor who originated from Ethiopia and one from another adult, said the Expert.  He asked whether those complaints had been followed up.

Luxembourg was commended for having adequate facilities to receive asylum seekers and for its non-use of administrative detention for irregular migrants unless they were deemed a threat to national security.  An Expert asked how such a threat to national security was interpreted.  The delegation was asked to comment on reports that persons had allegedly been returned to their country of origin or elsewhere from Luxembourg when they needed outstanding health treatment, which often led to their demise rather than their safety.   For example the case of a woman who was in urgent need of a mammogram but was returned before she could receive it.  The denial of healthcare treatment was as bad as non-treatment, commented, the Expert.

How did the authorities in Luxembourg establish the identities of asylum seekers without contacting their consulate and exposing them to the authorities in their country of origin, which could make them vulnerable to reprisals if returned, asked an Expert.  Statistics on the number of successful asylum seekers who had allegedly been tortured in their own country were not held, said an Expert, adding that States had an obligation to extend their databases on international protection to cover such cases.  He also asked how the authorities checked asylum seekers for signs of torture when interviewing them.

The State party was asked how many extradition cases it had received and to provide details of all cases of extradition, return or expulsion which had occurred during the reporting period.  The Expert asked about deportation after allegations of mistreatment. 

Findel Holding Centre was a place where irregular migrants were held in preparation for deportation to their country of origin.  Although a report by the Ombudsman and the Prison Inspector found that the living standards in the Findel Holding Centre were satisfactory, the Committee had seen a report by the non-governmental organization ‘Personne n’est illégal’ (Nobody is Illegal) which listed flaws in the operation of the centre.  Those included allegations that not all persons were seen by a doctor within 24 hours of admission, the use of full-body searches in an undignified manner, the confinement of persons to their room from 9.30 p.m. to 7 a.m., and the use of solitary confinement for misbehaviour for up to five days.  The persons in the Holding Centre were already vulnerable and may have suffered, and such procedures were controversial and may hide a desire to punish irregular migrants, the Expert commented.  He also asked whether persons subject to administrative detention could access remedies from the courts.

It was widely agreed that trafficking was a form of slavery, under which men, women and children were bought and sold, mostly for the purposes of sexual exploitation, commented an Expert.  He asked about measures to protect victims of trafficking and to prevent the practice.  The new anti-trafficking bill and other legislative developments were commended and the Expert asked about the system of social care for victims, the impact of measures taken, whether any perpetrators had been prosecuted, and about the prevalence of trafficking into and out of Luxembourg in general. 

There were reportedly problems with racism and xenophobia, said an Expert, particularly with regard to the detention of foreign nationals.  He asked about reports that prison staff had verbally abused inmates in a racist manner and about racist attitudes in general. 

An Expert asked about the impact of training on the Convention provided to Government staff, including law enforcement officers and penitentiary staff, and how it had improved the behaviour of public officials.   Was any training given on the Istanbul Protocol? 

Concerning violence against women and domestic violence, an Expert noted that the State had commissioned private organizations to run studies into the phenomenon but that the studies did not include the collection of data on the ethnicity or nationality of persons.  She asked the delegation to elaborate on measures taken to tackle violence against women. 

Response from the Delegation
 
Speaking about prison reform, a delegate said a draft bill for the reform of the penitentiary system of Luxembourg was taken up by the Council of State in 2012 and, after some re-drafting, would be referred to Parliament in the coming weeks.  Additionally, a draft bill on sentencing reform, which closely followed the penitentiary standards of the Council of Europe and the case law of the European Court of Human Rights, went hand-in-hand with the first bill and the two would be considered by Parliament together.  The bills would cover the legal status of persons detained in Luxembourg and plug the existing legislative gaps, definitively abolish the strict cell regime in law, and establish a Chamber for the Implementation of Sentences within the Court of Appeal in Luxembourg.  As to whether the new legislation would include provisions for a ‘vulnerable’ category of detainees, a delegate said it would not, because ‘vulnerable’ categories would only apply to two to three persons in the country at most, so it would not be appropriate.  Instead the Government considered each person as an individual. 

Concerning conditions of detention in custody, a delegate explained the different types of cells.  Detention cells were for persons who had recently been arrested to be detained for a maximum of 24 hours.  They did not have mattresses for hygiene reasons, because the people in the cells were very often drunk, but did have wool blankets.  However, the new Inspector-General for the Police Force was alive to the issue and planned to purchase washable mattresses for these cells.  Holding/waiting cells were usually for two hours, or a maximum of a few hours, pending their questioning by the police.  Holding/waiting cells were indeed small and were typically an area of two square metres, but they had a window in the door to allow air to circulate.  If they were too small for a person to lie down then they had to sit down instead.  There was no integrated CCTV video or sanitary facilities in holding/waiting cells but there was always somebody nearby to assist if they needed to access sanitary facilities.

There were four ways in which a detainee could be isolated, said an Expert.  First, the use of solitary confinement, known officially as ‘strict cell regime’, could be used in detention centres if a detainee was considered a danger to others; the decision had to be put in writing and reviewed every three months.  When the new law on penitentiary reform was adopted, the use of strict cell regime would be abolished and solitary confinement would be used in accordance with the Bangkok Rules.  The solitary cell regime could also be used as a punishment for a maximum period of six months, or up to 12 months in cases of repeat offence.   No person had been held in a ‘strict cell regime’ since June 2011. 

The second option to isolate a detainee was the use of a ‘disciplinary cell’ as a sanction for bad behaviour.  A detainee could be held in a disciplinary cell for no longer than 14 days.  In 2014 disciplinary cells were used on 50 occasions, and so far in 2015, on 11 occasions.  A ‘disciplinary cell’ in Luxembourg was 11 square metres and had a large window and wooden furniture that was entirely regular; it was exactly the same as the other cells in the prison.  The punishment was the fact that the person was not entitled to use his or her personal objects, such as a laptop, television or books, and was only allowed contact with other people outside of the cell for one hour per day.  The third option for isolation was the ‘safe cell’ which was a padded cell with no furniture.  Safe cells were used only occasionally and for very short periods, if a person committed a violent act and was a danger to themselves or others.  The maximum period for which a detainee could stay in a safe cell was 24 hours, with the possibility of a further 24 hours in exceptional circumstances.  The fourth possibility for solitary confinement was in a medical unit for psychiatric circumstances, with many checks and balances implemented by medical doctors and staff. 

A person had five guarantees upon arrest in Luxembourg, said a delegate.  A person from the moment of arrest was entitled to be examined by a doctor of their choice, to inform a friend or family member of their arrest, to immediately access a lawyer, to have the services of an interpreter where necessary, and to access their file.  Those rights were the subject of a draft bill currently before parliament. 

Answering the question about the case of a minor originating from Ethiopia who was reportedly subject to excessive and disproportionate use of force upon arrest, a delegate said the case involved a young man in a café who was drunk and on drugs, had smashed up the furniture in the café and seriously injured another person by attacking his neck with a glass ashtray.  The police had to use force in order to subdue him.  The national preventative mechanism had investigated the case and concluded that the use of force by the police was commensurate. 

Regarding juvenile justice a delegate said although there were no criminal laws specific to minors there was a law on the protection of young people, which had been amended several times over the past years.  A minor convicted of a crime could be placed in a physical place defined as ‘within the walls of a prison for adults but in a separate building’.   There was a provision in that law which held that a minor aged 16 years old or younger, who was suspected of or had been convicted of an offence, could be subject to ordinary jurisdiction.  That provision was rarely used, indeed the last instance was in the 1970s, emphasized the delegate.

A new closed youth detention centre, located in Dreiborn, and called ‘Unisec’ had been completed and was ready for use as soon as Parliament adopted an organic law which would allow it to start functioning.   The girls and boys would be separated by gender at night but would participate in co-educational activities during the day.  The staff of Unisec would similarly be of mixed gender, with male staff dealing with any physical and disciplinary actions involving boy detainees and female staff dealing with girl detainees in the same way. 

Irregular migrants were not detained unless they were of risk, and those restrictions were enshrined in law.   They included the risk of fleeing the country.  The 2006 asylum law of Luxembourg predated the 2008 immigration law, but the immigration law added provisions on the appeal of a decision to place an asylum seeker or irregular migrant in detention.  Prior to any forced removal a person could undergo all the necessary procedures, including appeal. 

To properly manage any institution, including irregular migrant holding centres, a disciplinary system had to be imposed to ensure law and order, as well as safety for all, was upheld.  Regular body searches were carried out by trained staff who were well aware of human rights and related obligations under law, and upheld the dignity of the person they were searching at all time.  A recent visit by the Ombudsman and the Prison Inspector found that the living standards in the Findel Holding Centre were satisfactory, as were the procedures for body searches. 

In 2013 there were 84 cases of forced-return or non refoulement, and in 2014 there were 153 cases.  Those statistics had not been disaggregated on the basis of return, noted the delegate.  She also provided figures for persons who had received a reprieve and had their forced return deferred: 160 in 2013 and 258 cases in 2014.  Persons were only returned to countries that were on a ‘safe list’, she said. 

If an irregular migrant refused to cooperate with the authorities, sometimes the only option to identify them was with assistance from their consulate, either in Luxembourg if that State was represented there, or in Brussels, whereupon the migrant would be given a Laissez-passer to travel there.  There were no statistics on the number of persons who were identified by a Consulate, added the delegate, saying she would try to introduce such statistics into the next report. 

The Ministry for Foreign Affairs did not carry out any monitoring for the principle of respect for non refoulement for each person who underwent a forced return.  However, a delegate of the International Committee of the Red Cross (ICRC) was always assigned to accompany the person undergoing forced return, by aeroplane, and who would provide the returnee with a non-governmental organization contact, usually within the ICRC country office, so the returnee had the possibility of approaching their contact with any complaint.  The ICRC always stayed in touch with returnees.  So far no person who had been expelled from Luxembourg had made a complaint of torture or ill-treatment upon their return to the country of origin. 

Responding to questions about healthcare for irregular migrants, a delegate explained about the system which gave them access to healthcare under the national health system with the costs of their medical healthcare reimbursed by the national health fund. 

The Inspectorate-General for the Police Force was created following the adoption of a 1999 law and was independent from the police.  The Inspectorate was staffed by former police officers because in order to inspect police stations an inspector had to be apprised of how such a service worked.  However, the Committee against Torture was not the only body to express concern about the independence of the body and in future the Inspectorate-General for the Police Force would be headed by an independent magistrate and former judge. 

Female genital mutilation was prohibited by the 2008 law on children and the family, which inhibited inhumane and degrading treatment as well as female genital mutilation specifically.  Luxembourg was active in supporting international initiatives, both financially and in other ways, to combat the practice. 

The process by which the Office of the Ombudsperson received complaints was easy to access, informal and not subject to statutory limitations.  The mandate of the institution of the Ombudsperson was very broad, said a delegate, noting that apart from issues regarding national defence the Ombudsperson could not be restricted from taking up any matter on the grounds of secrecy or national security.  

Follow-Up Questions from the Experts
An Expert expressed scepticism about how independent the Inspectorate-General for the Police Force could be, given that it was staffed by former police officers, but said the appointment of a magistrate to lead it was a positive development and he hoped the body would show objectivity in its work. 

The incorporation into law of the maximum period of solitary confinement to be 14 days was welcomed, particularly as the Subcommittee against Torture and the Special Rapporteur on Torture had both stated that solitary confinement for periods longer than 14 days could cause great psychological and medical problems.  How was the impact of solitary conferment on the health of detainees monitored? 

An Expert commented that he had observed one of the prisons in Luxembourg which was an open prison, and served as a good example of how an open prison could function.  The monitoring of psychiatric institutions was enquired about, as was the use of psychiatrists for children.

Response by the Delegation

Responding to questions about psychiatric institutions and detainees with mental disabilities in general, a delegate spoke about the provisions of the Law on the Treatment of Psychiatric Patients.  That new law clearly regulated treatment without consent of a psychiatric patient.  What had not yet been regulated to a satisfactory level was the field of forensic psychiatry, and that was something that would be carried out soon, he commented.  The delegate also said that a huge increase of detainees with severe personality disorder diagnosis was being seen and noted that people in prison could not be restrained and other measures were taken to meet the needs of those detainees. 

Providing more information on the use of solitary confinement, a delegate noted that for at-risk detainees held in a ‘safe cell’, the cells were 10 square metres and were fitted out in a way that the detainees could not hurt themselves.  For detainees in other forms of solitary confinement, namely a ‘disciplinary cell’, a delegate said they were able to listen to a fixed radio and to read, but were not permitted a television (other delegates had access to televisions with 38 channels, he noted).  Detainees in solitary confinement were allowed visits, and could meet with a member of the psycho-social support unit upon request.  They were seen daily by a doctor or a nurse. 

Concluding Remarks

CLAUDIO GROSSMAN, Committee Chairperson, thanked the delegation for their answers and comments which would be important in allowing the Committee to perform its function, and noted that the Committee’s concluding recommendations would be issued at the end of the session. 

JEAN-MARC HOSCHEIT, Permanent Representative of Luxembourg to the United Nations Office at Geneva, said Luxembourg greatly appreciated the human rights treaty bodies and in particular the work of the Committee against Torture, which was important both internationally and nationally to strengthen human rights protection systems.  The Committee’s work underpinned both the foreign policy and the domestic practice of Luxembourg.  The review process was a salutary exercise for soul-searching, guided by the Experts and inputs of non-governmental organizations, on national procedures and similarly important to keep the Committee apprised of legislative developments, he said.

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