Luxembourg

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Background

Luxembourg is a landlocked country situated in northwestern Europe that borders Germany, Belgium, and France. The history of the Grand Duchy of Luxembourg starts in 1815 with the Congress of Vienna in which Luxembourg was formed as a Grand Duchy as part of a union with the king of the Netherlands. At the same time, it also became part of the German Federation which ensured protection of the Luxembourg fortress by Prussia. In 1839 Luxembourg became independent and lost a significant amount of its former territory to Belgium in the 1839 Treaty of London. Over a century later in 1958 Luxembourg became a member country of the EU and in 1985 became part of the Schengen zone in Europe. Following the Second World War, Luxembourg has become one of the richest countries in the world despite its small population of around 640,000 (in 2021). An IMF estimate in 2022 ranked that citizens of Luxembourg had the second highest per capita gross domestic product in the world. While much of Luxembourg’s economy was originally founded on the steel and iron industry, in the late twentieth century and the twenty-first century important parts of Luxembourg’s economy started to include international banking and electronic commerce. Luxembourg operates with both a democratic parliament and a constitutional monarchy.

The Legal system

Luxembourg operates with civil law and a codified legal system based on French codes. It has two juridical districts such as Luxembourg. In 2020 there were 3,080 lawyers which was an increase of 5.7 per cent from 2019.

Legal Aid

There is state-sponsored legal aid available if you cannot afford a lawyer. It is available to Luxembourg nationals or to foreign nationals who are authorized to take up residence in Luxembourg, nationals of a Member State of the European Union or foreign nationals deemed equivalent to Luxembourg nationals for legal aid proposed by an international treaty or illegally staying third-country nationals, with a view to the reimbursement of remuneration due under Article 572-7 of the Labour Code (Code du travail). Legal aid may also be granted to any other foreign national with insufficient means in proceedings relating to their right to asylum, entry into the territory, residence right to settle or removal of foreign nationals.

Rights of the Accused

Rights against Unlawful Search: If you are suspected to be concealing objects which could be dangerous or important in the case, you can be searched by a person of the same sex. As part of preliminary enquiries, your property can only be searched if your handwritten consent to this is provided. However, if an offence or crime is discovered soon after or while it was being committed, this written consent is not necessary and your property including your car can be searched without permission.

Rights against Unlawful Arrest: The Law and Constitution forbid arbitrary arrest and detention and establish the right for persons held to challenge the lawfulness of their detention in court. As soon as you are held, you are provided with writing declaring your right to see a doctor as soon as needed with a written acknowledgement required from you in return.

Right to Medical Care: Access to medical care can also come from a doctor appointed by the State Public Prosecutor on their request or a family member’s request.

Right to be Informed of Charges: You also have the right to be informed of the accusations against you in a way that you can understand. This information is usually provided by the police officer or at the beginning of the interrogation by the investigating judge. This right of information is required to be both complete and comprehensible.

Right to Presumption of Innocence: There is also a right to presumption of innocence until proven guilty by a court. The rights of the person held during the enquiries and investigation arise when they are classified as ‘charged’ by the investigating judge. When the facts are the same, it is only possible to be punished once for the same wrongdoing, however, double prosecution is still possible if there has not been a final judgment in a country. If investigations are taking place in this Member State, extradition to this country will take place for a trial to take place in this Member State rather than Luxembourg.

Right to Fair and Speedy Trial: Trials by jury do not exist in Luxembourg as they have been abolished. However, defendants do have the right to a fair trial without undue delay. The Law and Constitution also establish an independent judiciary.

Right to Language Interpretation: The right to language interpretation also exists, with an interpreter provided free of charge if the person in question does not speak the same language as either the investigating judge or the police. The questioning will take place in French or German. Written evidence is not generally translated but if you want it to be translated, this will require private funding of the translations. Upon request a copy of the judgment can be provided in the language which the defendant speaks.

Capital Punishment: As Luxembourg is a member of the EU capital punishment was abolished in 1979 and Article 18 of the Luxembourg Constitution also forbids the use of the death penalty.

Right to Appeal: The right to appeal is also put in place, with the right to appeal against conviction, sentence, and the civil compensation decision. This appeal should be made in writing within 40 days after the decision is made.

Pre-Trial Procedure

There are no pre-trial obligations. The claimant is not forced to try to find an amicable solution or to start negotiations with the opposing group before starting the legal proceedings.

Before the trial, the investigating judge is required to inform you of your right to receive assistance from a lawyer for your choice before you are questioned. This must be provided in writing with a return required from you in a language which you understand. If you do not make a decision, the investigating judge is required to provide you with a duty lawyer (legal aid) if you ask for one. Unless this is expressly waived, you must only be questioned in the presence of your lawyer. The police authorities will check background and criminal records during their investigations.

During the investigation, you have the right to ask the judge to take action (such as conduct certain searches) which you think will help prove your innocence. A State Public Prosecutor can order to take your digital fingerprints, and cell samples (in the case of cell samples there must a direct link between you and acts committed with at least a two-year sentence attached to them). However, you cannot be forced to give a blood sample.

Your file must be made available to both you and your lawyer a minimum of eight days before your file is looked at in the Judges’ Council Chamber in the district court. During the investigation, you have the right to request that the Judges’ Chamber Court appeals an act which is part of the investigation proceedings if this request takes place during the investigation proceedings and within five days from when you first became aware of this act. You also have a right to appeal to the Judges’ Council Chamber of the Court of Appeal about the decisions made by the investigating judge and the Judges’ Council Chamber. It is a requirement to be present at the hearing, it is not possible to appear by video. After charging and questioning, you may be released by the investigating judge, or if they issue a detention warrant you may remain in custody. This investigating judge can also prohibit your communication with the outside world.

Court Procedures

The investigating judge/and or the police are responsible for the preliminary enquiry/investigation. After this investigation has taken place, the case is brought before the court in chambers. Here a decision is made about whether the case will be dismissed or judged by a court. In the case of a decision for the case to be judged by the court, a hearing then happens to examine the evidence and decide whether the accused is guilty. Article 13 of the Luxembourg constitution states, ' No one may be deprived, against his will, of the Judge assigned to him by the law.’

There are three different types of courts depending on which of the three different types of lawbreaking the charge falls into. Firstly, there is a minor offence (“contravention”) which will be heard before the police court with one judge. Then there is a major offence (“délit) where the case is held before the summary jurisdiction division of the distinct court with three judges (except in the case of traffic violations which has only one judge). Thirdly there is crime (“crime”) where the case is heard before the criminal division of the district court (three judges). In situations where there are special circumstances such as if the victim is a child, the court can order the case to be heard privately. Article 88 of the Luxembourg Constitution states that “the hearings of the tribunals are public, unless such publicity is a threat to order and morality, and in which case, the tribunal so declares by a judgment.”

The defendant is required to attend court unless they have a certain excuse such as a medical certificate. This will lead to the trial being postponed. The defendant can also ask the lawyer to represent them unless it is required by the court to be present. In cases with ‘crimes’, it is required to be present in person. The defendant can contest the evidence which is submitted against them through means such as experts, documents, witnesses, and arguments. There are two conditions for the submission of evidence. Firstly, it needs to be added to the file ‘in the proper manner’ and it also needs to have been freely discussed by the parties during a public hearing.

Lawyers have the right to examine witnesses, as part of one of the defence rights put in Article 6(3) of the European Convention on Human Rights. Although witnesses can be called and questioned as part of criminal proceedings, Luxembourg does not allow lawyers to directly cross-examine witnesses. Instead, the judge asks the questions to the witnesses, and the lawyer can challenge the testimony by asking the judge to ask certain questions. The defence has the right to call and question witnesses to defend themself, in the same way as the witnesses against the defendant. Regarding expert witnesses, the defence can instruct an expert, but in most cases, the court appoints its own expert if one is requested by either party to try and establish impartiality. These court experts need to follow the rules of adversarial debate. The victim is also able to be examined as a witness. Although it is possible to confess to the accusations made against you, there are no legal procedures in Luxembourg law that allow the defendant to plead guilty.

After the trial, the defendant can be declared guilty, partially, or totally acquitted. The sentence will then be dependent on the lawbreaking you are guilty of. You then have the right to appeal 40 days after the decision is made. This appeal can be regarding the civil claim or the size of the sentence. In cases of default judgements, the appeal must be made after the 15-day time limit for the opposition has lapsed. If the appeal is successful, and you are acquitted, the original ruling against you will not appear on your criminal record.

Rights in Prison

As a member of the European Union, Luxembourg complies with the regulations set out by living conditions in the European Union chart of rights for prisons. If prison conditions in Luxembourg are decided to be inhumane then arrest warrants and transfer of prisons to Luxembourg will not be carried out. The right to see your lawyer, right to food and water and right to have protection from racial harassment, bullying and violence is protected. In 2015 the government allowed monitoring by independent human rights observers to take place including by the Council of Europe’s Committee of the Prevention of Torture. The religious beliefs and practices of the prisoners must also be respected. Article 19 of the Luxembourg Constitution also states that “freedom of religion and of public worship as well as the freedom to express one's religious opinions are guaranteed, subject to the repression of offences committed in the exercise of such freedoms.” There is also a right to medical care in prison due to the EU Charter of detainees. This includes the right to access medical assistance at any time when needed including psychological help, and also weekly visits by family members.

Resources

- Anon, (n.d.). Luxembourg – Detective 001. [online] Available at: https://detective-001.eu/luxembourg/#:~:text=Basically%2C%20EU%20Charter%20of%20detainees.

- e-justice.europa.eu. (n.d.). European e-Justice Portal - Defendants (criminal proceedings). [online] Available at: https://e-justice.europa.eu/content_rights_of_defendants_in_criminal_proceedings_-169-LU-maximize-en.do?clang=en&idSubpage=2#No1.

- CRIMINAL PROCEEDINGS AND DEFENCE RIGHTS IN LUXEMBOURG. (n.d.). Available at: https://www.fairtrials.org/app/uploads/2022/01/Criminal-Proceedings-and-Defence-Rights-in-Luxembourg.pdf.

- Group, G.L. (n.d.). International Comparative Legal Guides. [online] International Comparative Legal Guides International Business Reports. Available at: https://iclg.com/practice-areas/litigation-and-dispute-resolution-laws-and-regulations/luxembourg.

- LUXEMBOURG 2020 HUMAN RIGHTS REPORT EXECUTIVE SUMMARY. (n.d.). Available at: https://www.state.gov/wp-content/uploads/2021/03/LUXEMBOURG-2020-HUMAN-RIGHTS-REPORT.pdf.