The European Commission against Racism and Intolerance (ECRI) has published its fifth report on Luxembourg, in which it analyses recent developments and makes recommendations to the authorities.
The Centre for Equal Treatment (CET) cannot receive complaints of discrimination. Furthermore, neither the CET nor the Ombudsperson can represent victims of discrimination in the courts. As a result, there is no procedure enabling all victims of discrimination to assert their rights easily.
The CET only has the power to provide victims of discrimination with an advice and guidance service. The law gives it the right neither to deal with complaints, nor to carry out mediation, nor to take legal action to assert the rights of victims of discrimination. In this connection, ECRI refers to the recommendations made in § 24 of this report.
§20. As described in the fourth report, the CET has the power to issue recommendations and reports on equality and discrimination, to provide information and documentation in these areas and to provide aid to victims of discrimination (section 10 of the Equal Treatment Act). By contrast, it is authorised neither to represent victims in court proceedings nor to institute court proceedings directly. Nor does it have any quasi-judicial power and can therefore not be asked to deal with complaints and applications or take binding decisions. The law also does not provide it with adequate powers to gather information and evidence (Principle 3d-g of GPR No. 2 on specialised bodies to combat racism and § 24 of GPR No. 7). In view of these significant shortcomings, ECRI recommended for interim follow up that Luxembourg strengthen the CET by giving it in particular the right to take part in legal proceedings. After the abolition of the CPSDR, it has become even more important to implement this recommendation.
§23. ECRI points out that there is currently no readily available remedy that would enable victims of discrimination to assert their rights (see §§ 13 and 14 above). In order to rectify this significant shortcoming, the authorities should draw on ECRI’s GPRs 2 and 7 and give the CET the right to deal with complaints. They should also give the CET and the Ombudsperson appropriate powers to conduct effective investigations and the right to initiate and participate in judicial and administrative proceedings (§ 24 of GPR No. 7). In order to do so, these institutions should have staff with legal training or the possibility of using lawyers. In order to ensure maximum efficiency, consideration could be given to bringing the two organisations closer together or even merging them. The CNE could, in turn, be integrated into the CET as an advisory body. At the same time, it would be advisable to make these institutions even more independent, for example by attaching the CET to the parliament, also with regard to its budget (Principle 5.2 of GPR No. 2).
§24. ECRI recommends that the Luxembourg authorities (i) give the Centre for Equal Treatment and the Ombudsperson the right to hear and consider complaints, (ii) give the Centre for Equal Treatment and the Ombudsperson the powers necessary to conduct effective investigations (especially the power to request the production of documents and other elements, to seize documents and other elements and to question people), (iii) give them the right to initiate legal proceedings and (iv) to give them the right to participate in judicial and administrative proceedings. The Luxembourg authorities should also consider bringing these two institutions as well as the National Council for Foreigners closer together or even merging them and attaching them entirely to the parliament.
On the positive side, ECRI highlighted a process of creating a House of Human Rights, the fact that politicians and the media do, in general, not resort to hate speech, a firm response of the judiciary to hate speech, free pre-school education, major efforts for good-quality reception of refugees and low rates of racist and homophobic/transphobic violence.
A positive trend can also be observed in attitudes towards LGBT persons. Since 2015 marriage has been open to same-sex couples and all married couples can adopt children on an equal footing. In February 2016, a progressive bill on name changes and gender recognition for transgender persons was submitted.
At the same time, ECRI noted that the Constitution establishes a right to equality for Luxembourgers only and that the penal code does not make racist or homophobic/transphobic motivation an aggravating circumstance.
Latent xenophobia shows through on the internet, which is used to spread hatred towards refugees, Muslims and foreigners in general; the media and internet access providers do not sufficiently prevent the dissemination of such hate speech. The authorities have not taken up central recommendations from the evaluation of their integration policies, they have not adopted a new action plan on integration and there is no system of indicators in place to measure the impact of their integration policies.
Children with migration backgrounds encounter significant difficulties in the school system and have results well below the average. Among migrants with a low level of education, unemployment and poverty rates are relatively high and social housing is not sufficiently developed. The issue of sexual diversity is not systematically addressed in schools and it remains difficult for transgender persons to change their first name and gender in public records and official documents.
In this report, ECRI requests that the authorities take action in a number of areas; in this context, it makes two priority recommendations:
A process of interim follow-up of these two recommendations will be carried out by ECRI no later than two years after publication of this report.
The report includes the government observations and was prepared following ECRI’s visit to Luxembourg in March 2016. It takes account of developments up to 30 June 2016.
Via ECRI’s website