COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF LUXEMBOURG

Committee against Torture
3 May 2007

The Committee against Torture this morning began its consideration of the fifth periodic report of Luxembourg on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The delegation, headed by Joëlle Schaack of the Ministry of Justice of Luxembourg, said Luxembourg's new asylum procedure, adopted on 5 May 2006, introduced very specific procedural rules for hearings, remedies and appeals, and it provided for a new, accelerated procedure so that asylum and applications for international protection orders could be processed quickly. It took about three months to process such claims. The new rules also provided further protections for unaccompanied minors and set out the criteria an asylum seeker had to meet to enjoy refugee or international protection status. Furthermore, it provided for a temporary protection status as well, to deal with massive inflows of refugees from conflict areas.

The delegation said there were four different options for "relative" solitary confinement in Luxembourg. Strict solitary confinement – which was also relative, as even in such cases prisoners had contact with prison staff and with authorized visitors – was only possible in cases where there had been serious breaches of disciplinary rules coupled with a real danger that the prisoner would harm others. Cases of strict solitary confinement had to be reviewed every three months. The maximum duration of strict solitary confinement was six months, except in exceptional circumstances, where it could be extended to 12 months (for recidivists). No minor had ever been placed in strict solitary confinement. Luxembourg was not contemplating abandoning the practice of strict solitary confinement, given that it had no maximum-security prisons. The practice had to be seen in view of the overall situation and the whole prison system.

Serving as Rapporteur for the report of Luxembourg, Committee Expert Guibril Camara urged Luxembourg to incorporate the definition of torture as set out in the Convention in its national legislation. That had a direct relevance to the assertion of the delegation today that Luxembourg had received no complaints of torture. Perhaps if it had incorporated the fuller definition of torture it would be found that such cases indeed existed. For example, if an act of violence was based on discrimination, it fell within the definition of torture under article 1 of the Convention.

Essadia Belmir, the Committee Expert serving as Co-Rapporteur for the report of Luxembourg, had concerns that juvenile delinquents, asylum-seekers and those detained by the police, all appeared to be held in the same centres. The cell system needed to be specifically regulated by law and judicial supervision over such detentions had to be exercised. It was particularly worrisome that juveniles experiencing difficulties were held in centres where other juveniles had been convicted of offences.

Other Committee Experts then asked questions related to, among other things, whether the law on domestic violence covered corporal punishment, and whether the Ombudsman's reports to Parliament had a section that dealt with torture.

An Expert also asked about the case of a citizen of the Democratic Republic of the Congo who had reportedly been physically abused in the course of an interrogation by the Ministry of Foreign Affairs of Luxembourg. The Committee had seen a medical report on the case, but apparently while a case was being brought before the European Court of Human Rights, no case had been brought before the domestic courts in Luxembourg.

Also representing the delegation of Luxembourg was the Permanent Representative of Luxembourg to the United Nations Office at Geneva, Jean Feyder; the Deputy Permanent Representative Christine Gay; the Director for Organization, Method and Employment of Luxembourg; the Director of the Luxembourg Penitentiary Centre; the Deputy State Prosecutor; and a representative from the Ministry of Foreign Affairs and Immigration.

The delegation will return to the Committee at 3 p.m. on Friday, 4 May, to provide its responses to the questions raised today.

Luxembourg is among the 144 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Denmark to the questions posed by Experts on Wednesday, 2 May.

Report of Luxembourg

The fifth periodic report of Luxembourg (CAT/C/81/Add.5), notes that, even if in Luxembourg acts of physical and mental torture are still unknown, Luxembourg, through its array of effective legislative instruments, is in a position to prevent any such behaviour. Among new institutions relevant to the implementation of the Convention, on 16 July 2003 the Chamber of Deputies adopted the bill on the establishment of the office of an ombudsman in Luxembourg. The Ombudsman is an independent institution under the executive which hears complaints by members of the public in connection with a matter of concern to them regarding acts by the authorities and the communes.

Regarding the Committee's concerns about placement of minors in adult prisons for disciplinary purposes, a proposal to establish a security unit for minors is becoming a reality following 10 years of study and discussion. On 20 May 2003 the Prime Minister introduced a bill on the reorganization of the State socio-educational centres and the establishment of a closed security unit for minors on the site of the Dreiborn State socio-educational centre. The Act on the reorganization of State socio-educational centres was approved on 16 June 2004, and provides a legal basis for construction of the Dreiborn Security Unit, scheduled for mid-2005.

Responding to the Committee's concerns regarding the practice of solitary confinement, the report says application of this measure implies that the prisoner has previously been given an opportunity to state his or her views and that he or she is informed in writing of the reasons for solitary confinement. The measure is subject to review every three months. The duration of solitary confinement as a disciplinary measure is limited to six months, and for repeat offenders may be extended to 12 months. Nevertheless, application of this most serious disciplinary measure is confined to the most serious breaches of discipline. In practice the duration of confinement is generally less than three months, and part of the sentence is frequently suspended. Appeal to the Prison Commission against placement in solitary confinement has been possible since the adoption of the Act of 8 August 2000. The Commission comprises a prosecutor from the Attorney General’s Office, an appeal court judge and a prosecutor. An appeal may also be initiated before the administrative authorities. Pursuant to the recommendations of 3 April 2003 made by the Human Rights Committee, Luxembourg has made less use of solitary confinement. There has been a significant reduction in the use of solitary confinement: 43 prisoners were placed in solitary confinement in 2000, 58 in 2001, 43 in 2002, and 16 in 2003. That number has again fallen sharply since 2003, with only two instances of placement in solitary confinement in 2004.

Introductory Statement

JOËLLE SCHAACK, Head of Delegation and Representative of the Ministry of Justice of Luxembourg, said she hoped that Luxembourg's dialogue with the Committee would prove constructive. She then briefly introduced the delegation. They would try to convince the Committee of the efforts being undertaken by Luxembourg to fulfil its obligations.

Responses by the Delegation to Written Questions by Experts Submitted in Advance

The delegation, responding to the Committee's request for information on Luxembourg's new asylum procedure, adopted on 5 May 2006, said the new law introduced very specific procedural rules, for hearings, remedies and appeals, and it provided for a new, accelerated procedure so that asylum and applications for international protection orders could be processed quickly. It took about three months to process such claims. The new rules also provided further protections for unaccompanied minors. The new regulation also set out the criteria an asylum seeker must meet to enjoy refugee status or international protection status. Furthermore, it provided for a temporary protection status as well, to deal with massive inflows of refugees from conflict areas. Regarding possibilities for appeal, as regarded decisions on the merits of applications for international protection, there were remedies under the Administrative Court of Luxembourg for judgements on legality of a decision, as well as timeliness and appropriateness of the carrying out of the judgement.

Regarding diplomatic assurances, such assurances had never been requested by the Luxembourg authorities and thus there were no cases to cite as examples, the delegation said.

As regards details of cells in which aliens were held in administrative detention and an updated list on such centres, the delegation provided a written table that listed all such provisional holding cells, which showed that there were a total of 29 such cells in Luxembourg. Those cells were only found in police units with 24-hour service, in particular owing to the need to monitor such persons continuously. Those cells had video monitoring, toilets, indirect lighting, and shatterproof windows. Customs officers also had four cells, similarly equipped, and there were also secure holding places, which were only used to hold persons for very short periods pending interrogation.

Turning to detention centres for aliens, a grand ducal regulation of 20 September 2002 set up a holding centre for aliens in irregular status. Under the regulation aliens held under the Act on entry and stays by aliens are housed in a special wing of the Luxembourg Prison. During their stay in the prison they are kept separate from other prisoners. They are subject to a special regime corresponding to their specific status and embodying certain rights, such as being informed of their administrative rights, medical examinations, exemption from any kind of work, unrestricted right of written correspondence, a right of access to radio and television programmes, visiting rights similar to those of untried prisoners, and access to the telephone within the limits established by the Minister of Justice. Those held in the centre, like those held in the prison, received medical examinations within 24 hours, and received medical care not by prison staff, but by a Luxembourg clinic. Detainees were also not obliged to work, as prisoners were. However, at the request of the detainee, detainees could be allowed to work. Each detainee held in the new centre had the right to contact a member of their family within 24 hours, and could speak with their lawyers daily. In addition, they had the right to an additional five-minute private phone call every day, at the State's expense.

Owing to overcrowding, it was true that total separation of detainees and prisoners was not possible. In particular, women detainees could not be fully separated from female prisoners –
although there were actually no female detainees in the centre at present. This was only a temporary solution, the delegation stressed, and the Government was at the preliminary stages for the construction of an entirely separate facility for such detainees. It was hoped that construction would begin later this year, and it was expected to take 20 months from the start of construction to the completion of a separate stay centre for illegal aliens. The centre would be modular in design: with possibilities for segregating men, women and couples.

Giving further details, the delegation stressed that it was only a very restricted number of irregular aliens in Luxembourg that were held in the temporary stay centre. The maximum capacity of the centre was 35. The time limit for such stays was three months, renewable for a maximum of 12 months total in exceptional circumstances.

Responding to a request for details of complaints of torture, the delegation said that, for the past five years there had been no complaints of torture received either by the Prosecutor's Office, or by the internal police investigation authorities – the Inspectorate General of Luxembourg.

Regarding figures on asylum requests and applications approved, over the years, there had been a decrease in applications and an increase in applications that were approved. In 2003, 1,549 persons demanded asylum, and 62 applications were approved. In 2005, the number of applications had dropped to 801 persons, and 97 of those applications had been approved. There had been a decline in returns, in particular voluntary returns. Unfortunately, they had no statistics on the number of those who had applied for refugee status because they had been subjected to torture.

On the issue of time limits for provisional detentions, Luxembourg did not have "garde à vue" as in French law, but it had detention. The duration of detention was 24 hours, which could not be extended under any circumstances. Such detention could only be effected where there were serious indications which would justify the subsequent indictment of the individual. The 24-hour limit began running at the moment of actual detention by the police.

In terms of the practice of incommunicado confinement, it was true that the investigating judge could order such a detention, although this practice had been virtually abandoned since the 1990s. An incommunicado confinement was limited to 10 days duration, and could only be renewed once. The detainee also had the possibility to appeal such detention before the judicial authorities.

Responding to the Committee's concern about anti-terrorist laws that could infringe on the rights of detainees, the delegation said that there were no exceptional anti-terrorist laws in Luxembourg, and it was not contemplated to formulate exceptional circumstances for the detention of terrorist suspects.

Regarding punishment of minors, the delegation recalled that those under 18 were subject to the law of minors. They were not subject to punitive measures, only measures of protection.

As regarded solitary confinement, there were four different options for "relative" solitary confinement. Strict solitary confinement, which again was relative, as even in such cases prisoners had contact with prison staff and with authorized visitors, was only possible in cases where there had been serious breaches of disciplinary rules coupled with a real danger that the prisoner would harm others. Cases of strict solitary confinement had to be reviewed every three months. The maximum duration of strict solitary confinement was six months, except in exceptional circumstances, where it could be extended to 12 months (for recidivists). No minor had ever been placed in strict solitary confinement.

The delegation explained that Luxembourg was not contemplating abandoning the practice of strict solitary confinement, given that it had no maximum-security prisons or other possibilities for ensuring safety of the system. The practice had to be seen in view of the overall situation and the whole prison system.

In terms of complaints by detainees of ill treatment, the delegation said that, during the reporting period, there had been 12 such complaints. As a result, four policemen had been prosecuted and convicted for deliberate harm to a detainee.

Concerning measures to prevent the use of excessive force by law enforcement authorities, the delegation noted that there had been complaints regarding handcuffing, including overly tight cuffs. The authorities addressed those complaints by providing regular training on the use of handcuffs, and clearly enunciating the criterion for cases in which handcuffs were to be used. In addition, the police had to report to the Prosecutor's Office to explain the reasons for the use of handcuffs.

On trafficking, Luxembourg had taken a number of actions. It had sought to coordinate national action by various State actors and agencies; it had provided training for officials; and it had established a special investigative police unit to investigate trafficking. Finally, Luxembourg was participating in a European anti-trafficking project – the Comprehensive, Operational, Strategic, Planning for the Police (COSPOL).

Questions Raised by Committee Experts

GUIBRIL CAMARA, the Committee Expert serving as Rapporteur for the report of Luxembourg, cited a case that had appeared in Luxembourg's report where it was held that an asylum-seeker should not be imprisoned and that, rather than being placed in a prison, they should be placed in an appropriate similar facility, to be monitored by the police. In his view, that was overly restrictive. Asylum-seekers had committed no crime, and should not be subject to police monitoring.

Also questionable, Mr. Camara felt, was the use of the term "safe third country" in Luxembourg's report in the context of asylum-seekers and with the meaning of "country of origin". By designating the country in that manner, it made it appear that the asylum-seeker would not be at risk if he or she were repatriated, which might not be the case.

Mr. Camara urged Luxembourg to incorporate the definition of torture as set out in the Convention in its national legislation. That had a direct relevance to the assertion of the delegation today that Luxembourg had received no complaints of torture. Perhaps if it had incorporated the fuller definition of torture it would be found that such cases indeed existed. For example, if an act of violence was based on discrimination, it fell within the definition of torture under article 1 of the Convention, and that was just one of the complex ramifications of the definition of torture as set out in the Convention.

ESSADIA BELMIR, the Committee Expert serving as Co-Rapporteur for the report of Luxembourg, had concerns about those who were held in provisional detention. Juvenile delinquents, asylum-seekers and those detained by the police, all appeared to be held in the same centres. The cell system needed to be specifically regulated by law and judicial supervision over such detentions had to be exercised. It was particularly worrisome that juveniles experiencing difficulties were held in centres where other juveniles had been convicted of offences.

Regarding the use of handcuffs, Ms. Belmir noted that the Prosecutor's Office had to be informed by the police of incidents involving handcuffing. However, it did not appear that there was any oversight provided by that process. She would appreciate more details.

On the issue of human trafficking, Ms. Belmir was concerned about visas granted to those involved in human trafficking. Could Luxembourg rethink its visa policies to take that concern into consideration?

Ms. Belmir was further concerned that corporal punishment was allowed in Luxembourg, and that in addition there was not even a regime to regulate such punishment.

Other Committee Experts then asked questions related to, among other things, whether the law on domestic violence covered corporal punishment; whether Luxembourg was contemplating becoming a party to the Optional Protocol to the Convention; the definition of torture in Luxembourg's legislation; compensation for victims of torture, and whether a victim could apply for compensation directly on the basis of the Convention in Luxembourg; and whether the Ombudsman's reports to Parliament had a section that dealt with torture.

An Expert asked about the case of a citizen of the Democratic Republic of the Congo who had reportedly been physically abused in the course of an interrogation by the Ministry of Foreign Affairs of Luxembourg. The Committee had seen a medical report on the case, but apparently while a case was being brought before the European Court of Human Rights, no case had been brought before the domestic courts in Luxembourg. She would appreciate further information.
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