Committee against Torture
4 May 2007
The Committee against Torture this afternoon heard the response of Luxembourg to questions raised by Committee Experts on the fifth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Thursday, 3 May, the delegation, which was led by Joëlle Schaack of the Ministry of Justice of Luxembourg, said that the placing of asylum seekers in closed centres of detention was the exceptional case. Asylum seekers were entitled to social assistance and housing, which was provided in open centres where they were free to come and go. There were four exceptions for which a closed detention could be ordered: where an asylum seeker had returned after expulsion (there had only been one such case); where there was a refusal to cooperate in the identification or asylum application process (no such cases existed); where an asylum seeker was seeking an accelerated processing (again, there had been no such cases); and the most frequent case, for asylum seekers who were pending transfer to a third country (there had been a total of 58 such cases, or 10 per cent of total number of asylum seekers).
On the question of extraterritorial jurisdiction for the crime of torture, the delegation said that the Luxembourg Code of Criminal Procedure had two relevant provisions. The first provided that any citizen of Luxembourg who committed a crime punishable under Luxembourg law outside of the territory of the Grand Duchy could be prosecuted and tried in Luxembourg. The other provided for an active universal jurisdiction, so that crimes of torture or terrorism committed outside the territory would not remain unpunished.
The Committee will submit its conclusions and recommendations on the report of Luxembourg towards the end of the session on Friday, 18 May 2007.
As one of the 144 States parties to the Convention against Torture, Luxembourg is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
At the end of the afternoon, the Committee also heard a statement from Gianni Magazzeni, the Coordinator of the National Institutions Unit of the Office of the United Nations High Commissioner for Human Rights, on the relationship between national human rights institutions and the work of human rights treaty bodies.
When the Committee reconvenes at 10 a.m. on Monday, 7 May, it is scheduled to begin consideration of the fourth periodic report of the Netherlands (CAT/C/67/Add.4).
Response of Luxembourg
Responding to a series of questions raised by Committee Experts on Thursday, 3 May, the delegation of Luxembourg said that the placing of asylum seekers in closed centres of detention was the exceptional case. Asylum seekers were entitled to social assistance and housing, which was provided in open centres where they were free to come and go. There were four exceptions for which a closed detention could be ordered: where an asylum seeker had returned after expulsion (there had only been one such case); where there was a refusal to cooperate in the identification or asylum application process (no such cases existed); where an asylum seeker was seeking an accelerated processing (again, there had been no such cases); and the most frequent case, also known as the "Dublin law" case, for asylum seekers who were pending transfer to a third country (there had been a total of 58 such cases, or 10 per cent of total number of asylum seekers).
Regarding the use of the terminology "safe third country" in the context of the law on asylum procedures and international orders of protection, the delegation clarified that that referred to a country in which the asylum seeker had previously resided and where it was safe for that individual to return. A "safe country of origin" was the asylum seeker's country of origin where it was safe for him to return. There was as yet no list of "safe countries of origin" but such a list was being drawn up.
In response to a query about whether Luxembourg could regulate its visa laws so as to help prevent human trafficking, the delegation said that to that end visas for "cabaret" artists were no longer issued.
In response to statistics on nationalities of origin of asylum seekers, Luxembourg had not kept such statistics before 2005. Since then, in 2006, among those granted asylum were 6 Albanians; 1 Serb; 5 persons from Bosnia and Herzegovina; 1 citizen of the Democratic Republic of the Congo; 1 Ethiopian; 1 Guinean; 5 Iranians; 1 Rwandan; 12 Serbs (from Kosovo); 1 Somali; 12 Togolese and 2 Turks. That figure included babies of refugees born in Luxembourg, the delegation added.
As for the individual from the Democratic Republic of the Congo that had wished to make a request for asylum in Luxembourg and later asserted he had been tortured during an interrogation by the Ministry of Foreign Affairs, the delegation said that that individual had actually been resident in Germany, where he had applied for asylum. Upon communication with the authorities in Germany, it was discovered that he had a temporary permit to stay in Germany. The Luxembourg Police were also told that he was a very violent person, and that he was HIV-positive. The police explained to the Congolese national that under the Dublin system he needed to return to Germany, and the German police had agreed to take him back that same day. The individual had refused, had begun insulting the police, had spat on them, and had finally attacked them. He jumped on a police officer on the ground and tried to bite him in the nose. The Congolese man was finally brought under control, handcuffed, and transported to a hospital where it was declared he was fit to be transported back to Germany.
The process then became prolonged, the delegation said, and it was only a month and a half later that the asylum seeker could be transferred back to German soil. It should be noted that a case of attempted homicide of a police officer was now pending against that individual. As to why an investigation had not been undertaken into the events, that was simply because the events were self-evident. It was the police who had been attacked and not the reverse. As to why the case had not been taken up in Luxembourg and had been brought directly before the European Court of Human Rights in Strasbourg, that was because the asylum seeker wanted this for his own reasons.
Regarding the definition of torture, the delegation said that article 260, paragraph 1, of Luxembourg's Criminal Code reflected the definition in article one of the Convention against Torture pretty much word-for-word.
On the question of extraterritorial jurisdiction for the crime of torture, the delegation said that the Luxembourg Code of Criminal Procedure had two relevant provisions. The first, brief but explicit, provided that any citizen of Luxembourg who committed a crime punishable under Luxembourg law outside of the territory of the Grand Duchy could be prosecuted and tried in Luxembourg. The other provided for an active universal jurisdiction, so that crimes of torture or terrorism committed outside the territory would not remain unpunished.
In terms of the use of handcuffs, and oversight for such use, the delegation said that if the police used handcuffs in an arrest, they had to write a report on that use and the reasons for such a measure to the Public Prosecutor's Officer. If there were any questions surrounding that use, the Public Prosecutor was responsible for launching an investigation. If a detained person claimed that he had been hurt or wounded during the course of his or her arrest, that person had the right to request a medical examination by a doctor, and a certificate of that examination had to be annexed to the arrest report. Thus, transparency in the procedures of the police was assured.
On domestic violence, there was a law of 2003 that addressed domestic disputes, which was essentially an administrative regulation, providing for orders of protection and restraining orders where a person was preparing to commit a crime of violence against a family member. There was also a law on civil servants against whom an order of protection had been issued, which was similar to that for other citizens. There were no special aggravated circumstances for a civil servant who committed a crime while they were not acting in their official capacity. However, the delegation noted, there was a provision in the Criminal Code for a finding of aggravated circumstances for police officers that had committed crimes in the context of carrying out their duties.
Minors in difficulty in Luxembourg, who were troubled children who had frequently been abused, were held together with minors in conflict of the law, the delegation said. However, they were kept separately in the youth centres and separate regimes were applied to those two categories. What was important to remember was that even those children who were in conflict with the law might have been victims of abuse and needed care. What was important was that each individual case was considered individually, and the measures to be taken were tailored to the specific case. The Government sought to protect and rehabilitate minors; punitive measures were rarely ordered.
Regarding corporal punishment, the delegation noted that a bill was pending that prohibited corporal punishment, including ill-treatment and genital mutilation, within the family and in educational settings.
Questions by Committee Experts
GUIBRIL CAMARA, the Committee Expert serving as Rapporteur for the report of Luxembourg, had no further clarifications to request. He thanked the delegation for their sincere and comprehensive complies.
ESSADIA BELMIR, the Committee Expert serving as Co-Rapporteur for the report of Luxembourg, also thanked the delegation for the replies to her questions regarding visas, handcuffs, and the right to access to a medical exam by detainees. With respect to the delegation’s responses on the detention of minors, however, it was still a matter of concern that children in conflict with the law were held in the same youth centres as children with difficulties. The Committee had asked that centres be set up for minors in detention, and yet it did not appear that Luxembourg even had plans to do so.
An Expert was concerned that detainees did not have a right to a lawyer during the initial police interrogation.
Response by Delegation
Responding to additional questions raised, the delegation of Luxembourg said that Luxembourg had never refused visits by European Union human rights bodies to inspect youth centres.
Indeed, there were plans to build separate facilities for youth in difficulty, the delegation said. It was hoped that that project, which had been mentioned during the delegation's presentation yesterday, would be completed by 2008.
As far as placing minors for detention in penitentiaries, the delegation said that was possible in extreme cases, where minors were exceptionally aggressive. The maximum detention in solitary confinement of a minor was 10 days. However, the normal period for solitary confinement was one or two days. It was the opinion of Luxembourg that it was not necessary for solitary confinement to be controlled by a court order. Solitary confinement – or the strict cell regime – was merely a prison regime, which fell among the competence of the prison authorities. The Council of Europe had supported that position.
In terms of presence of a lawyer during the first interrogation of a suspect by the police, the delegation said that, after confirming the identity of the suspect, either during the first interrogation or during the later interrogation before a prosecuting judge, suspects were informed of their right to a lawyer, and, if they so requested, would be appointed one.
Statement by the Coordinator of the National Institutions Unit of OHCHR
GIANNI MAGAZZENI, Coordinator of the National Institutions Unit of the Office of the United Nations High Commissioner for Human Rights (OHCHR), said that an enhanced country engagement and an increased focus on national human rights protection systems was crucial to addressing human rights challenges and protection gaps, as outlined in the OHCHR Plan of Action and the resulting Strategic Management Plan. Moreover, the High Commissioner was convinced that national institutions were the best relay mechanism at country level to ensure the application of international human rights norms, for example through monitoring the State's follow-up to treaty body recommendations. It was therefore of the utmost importance that during their discussions with States parties the treaty bodies emphasized the importance of having national institutions that fully complied with the Paris Principles – especially that they were independent.
National institutions were expected to become even more visible with the entry into force of the Optional Protocol to the Convention against Torture, Mr. Magazzeni observed. Indeed, national institutions had a vital role to play in the treaty body process. Among other responsibilities, national institutions should encourage ratification of international instruments, and contribute to State reports to be submitted to UN bodies or Committees.
Mr. Magazzeni said he had distributed the conclusions of the international roundtable on the role of national institutions in the treaty body process, which had been held in Berlin in November 2006. The first part of that document might act as a guide to national institutions on how to engage with treaty bodies, and had been adopted by national institutions worldwide. The second part put forward recommendations to treaty bodies on how they could engage with national institutions, which would be further discussed at the Meeting of Chairpersons of Human Rights Treaty Bodies this June.
In the ensuing discussion, the Chairperson remarked that the Committee against Torture had tried to engage with national human rights institutions in the context of its consideration of periodic reports of States parties, and had always invited them to attend. Only three such institutions – from Uganda, France and Mexico – had so far taken up that offer, and the Committee had had very fruitful exchanges with them.
An Expert wondered if there could be a way to encourage greater uniformity among national human rights institutions. In particular, she noted, it would be beneficial if all such institutions were competent to hear individual complaints, which was not always the case.
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