Introduction
Basic Facts about the Country
Basic Facts about the Judiciary
Judicial Governance
Distribution of Responsibility
Challenges
Positive Developments & Achievements
Rankings and Surveys
Expert Recommendations
Compliance with European Courts' Judgements
Luxembourg
Basic Facts about the Country
Membership of the European Union
1 January 1958
Membership of the Council of Europe
5 May 1949
Entry into force of the European Convention on Human Rights
3 September 1953
Basic Facts about the Judiciary
Budget per inhabitant
€ (2020 data)
Overall number of judges
Number of professional judges per 100,000 inhabitants
36.10
Tiers in the ordinary court system
3
District Courts (civil and criminal matters)
2
Courts of Justices of Peace
3
Court of Appeal
1
Court of Cassation
1
Social Insurance Arbitration Board
1
Social Insurance Appeals Board
1
Administrative Court of First Instance
1
Administrative Court of Appeal
1
Constitutional Court
Yes
Composed of nine members. These are judges of ordinary courts – the presidents of the two top courts, two judges of the Court of Cassation, and five judges appointed by the government on the joint advice of the Supreme and Administrative courts. This is not a typical solution for the composition of a constitutional court, but is justified by Luxembourg’s small population and number of judges and cases.
Rules on the compliance of laws with constitution
It is not possible to appeal a decision of the Constitutional Court. It is also not possible for individuals to lodge appeals with the Constitutional Court directly. If a party questions the constitutionality of a law before a judicial or administrative jurisdiction, the matter must be referred to the Constitutional Court if the issue of constitutionality is deemed vital to the resolution of a dispute.
Public Prosecutor
Independent in the exercise of individual investigations and prosecutions, without prejudice to the government’s right to give direction on criminal policies
Judicial Governance
Type of governance system
National Council for Justice
- In operation since 1 July 2023
- Nine members, including six magistrates, elected by their peers, one member (lawyer) elected by the bar, and two members elected by the Chamber of Deputies (the parliament) based on their education or experience.
- There are no ex officio members among magistrate-members of the Council. The initial version of the law allowed the presidents of the Supreme Court and the Administrative Court of Appeal, as well as the prosecutor general, to be members. That provision was removed, however, in the final version of the law adopted.
Ministry of Justice
- Office for the Supervision of the Court Management, established within the Ministry, headed by a judge
Distribution of Responsibility
- Responsible for the selection of magistrates before their appointment by the Grand Duke (who is the head of state), the career advancement of magistrates, and the (initiation of) disciplinary investigations and proceedings against judges and prosecutors. It has the ability to appeal the decisions of the first instance disciplinary court.
- Presents the selected candidates for magistrates’ positions to the Grand Duke, who appoints them, without a power of veto.
.
Challenges
Barriers for access to courts
A reform that aims to make legal aid more accessible remains pending. The European Commission called for the continuation of this reform in its 2022 Rule of Law Report, and reiterated the recommendation in 2023, due to the lack of progress. The proposed legislation aims to expand free legal aid to non-national residents, who constitute around half of the population, and who can vote in local elections. It would allow for partial coverage of legal fees.
The ombudsperson for children has raised concerns regarding children’s access to a lawyer in criminal proceedings, particularly arguing that the process of designating lawyers was lengthy and ineffective, taking up to a year. This meant that, in the meantime, a child could be arrested without having legal representation.
Positive Developments & Achievements
The public and companies perceive courts and judges in Luxembourg to be highly independent. Overall, 76 per cent of the general population and 74 per cent of companies perceive the level of judicial independence to be “fairly or very good”. The courts operate efficiently.
Luxembourg established the National Council for Justice, a body tasked with decision-making on judicial selections, career advancement, and the disciplinary regime, through the constitutional reform of December 2022, and detailed the Council’s competences in legislation. Up to that point, the above-listed tasks were within the remit of the Ministry of Justice. The composition of the Council is aligned with the European standard, according to which at least half of the members of such councils should be judges chosen by their peers; magistrates (judges) elected by peers are in the majority, holding six out of the nine seats. Four judges come from courts of general jurisdiction and two from administrative courts. The remaining three members include a lawyer and two representatives of civil society, appointed by the parliament. Court presidents have no guaranteed seats in the Council. Despite some opposition to the democratic method of electing the Council members from inside the judiciary, the first elections took place in February 2023, and the Council started functioning in July 2023. Experts suggest that this reform could change judges’ mindsets, by ensuring that the election of Council members is based on merit, rather than seniority. Assessing the true success of the reform requires a thorough examination of the Council’s actual functioning. Challenges will likely persist, including a shortage of qualified candidates interested in positions in the judiciary.
The prosecution service is viewed as independent. The minister of justice, while formally authorised to do so, has not given instructions to prosecutors in individual cases for more than 20 years. Prosecutorial independence has recently been formally reinforced further, through the removal of the power of the minister to give instructions to prosecutors altogether.
Rankings and Surveys
Expert Recommendations
Overall, concerning the recommendations in the 2023 Rule of Law Report, Luxembourg has (made):
- Fully implemented the recommendation to continue with the process to adopt the reform on the powers of the future Council for the Judiciary.
- No further progress on continuing with the process to adopt the reform on making legal aid more accessible.
- Significant progress on ensuring adequate resources for the prosecution services dealing with economic and financial crime.
On this basis, and considering other developments that took place in the period of reference, it is recommended to Luxembourg to:
- Continue with the process to adopt the reform on making legal aid more accessible.
European Commission Rule of Law Report 2023Compliance with European Courts' Judgements
Court of Justice of the European Union (CJEU)
State Performance
0
European Court of Human Rights (ECtHR)
State Performance
Excellent
Implementation record
1
25 %
12
months
Judgements with pending implementation
Selected on relevance to the judiciary / rule of law
Foyer Assurances S.A. v Luxembourg
The Foyer assurances S.A. case relates to excessive formalism on the part of the Cour de cassation, which declared inadmissible the applicant company’s sole plea in law for failing to specify which of the three articles of the Civil Code referred to in the plea had been violated by the Cour d’appel in its judgment of December 1, 2016, whereas the Cour d’appel itself did not specify which was the basis for the sentences handed down (violation of Article 6 § 1).
General measures: It should be noted that the judicial authorities have set up a system for disseminating ECHR judgments, to professionals via internal communication and to the general public via a dedicated website. In addition, the authorities are considering raising awareness among the Luxembourg and Diekirch Bar Associations of the particularities and requirements of drafting procedural documents, in particular appeals in cassation, in accordance with the law in force. They are also considering the creation of a training course for the legal professionals concerned, possibly through a meeting between the magistrates concerned and the Council of Europe.
35245/18
12-05-2022
Halet v Luxembourg
The Court found the applicant’s freedom of expression to be violated by the criminal conviction for disclosing confidential documents protected by professional secrecy, obtained in the workplace. In view of its findings as to the national and European importance of the public debate on the tax practices of multinationals, to which the information disclosed by the applicant made an essential contribution, the Court considers that the public interest attached to the disclosure of this information outweighs all the harmful effects resulting therefrom. Thus, having weighed these various interests at stake and taken into account the nature, gravity and deterrent effect of the criminal conviction imposed on the applicant, the Court concludes that the interference with his right to freedom of expression, in particular the right to communicate information, was not “necessary in a democratic society”.
On 12 September 2023, an action report was transmitted in this case (DH-DD (2023)1088).
21884/18
14-05-2002