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United Nations Committee on the Rights of the Child - States Parties Reports |
UNITED
NATIONS |
|
CRC |
|
Convention on the Rights of the Child |
Distr. GENERAL CRC/C/104/Add.5 19 July 2004 ENGLISH Original : FRENCH |
COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER
ARTICLE 44 OF THE CONVENTION
Second periodic reports of States parties due in
2001
LUXEMBOURG* **
[14 November 2002]
___________________
* For the initial report submitted by the Government of Luxembourg, see document CRC/C/41/Add.2; for its consideration by the Committee, see documents CRC/C/SR.471-473; for the Committee’s concluding observations, see document CRC/C/15/Add.92.
** In accordance with the
information communicated to the States Parties concerning the processing of
their reports, this document
has not been reviewed by the publishing services
prior to its translation by the Secretariat.
GE.04-41554 (EXT)
CONTENTS
Paragraphs
INTRODUCTION AND GENERAL CONSIDERATIONS 1 -
5
REPLIES TO THE COMMITTEE’S RECOMMENDATIONS
AND
SUGGESTIONS 6 - 45
A. Alignment of the legislation and national practice on the principles
and provisions of the Convention 47 - 56
B. Measures taken to make
the Convention widely known (art. 42) 57
II DEFINITION OF THE CHILD
(art. 1) 58 - 60
III GENERAL PRINCIPLES 61 -
79
A. Non-discrimination (art. 2) 61 - 65
B. Best interests of
the child (art. 3) 66 – 7 0
C. Right to life, survival and
development (art. 6) 71 - 73
D. Respect for the views of the child
(art.12) 74 - 79
IV. CIVIL RIGHTS AND FREEDOMS (arts. 7, 8, 13 to
17, and 37(a)) 80 - 93
A. Name and nationality (art.
7) 80
B. Preservation of identity (art. 8) 81
C. Freedom of expression
(art. 13) 82
D. Freedom of thought, conscience and religion (art. 14) 83
- 84
E. Freedom of association and peaceful assembly (art.
15) 85
F. Protection of privacy (art. 16) 86 - 88
G. Access to
appropriate information (art. 17) 89
H. The right not to be subjected to
torture or other cruel, inhuman
or degrading treatment or punishment (art.
37(a)) 90 - 93
V. FAMILY ENVIRONMENT AND ALTERNATIVE
CARE
(arts. 5, 18, paras. 1 and 2, 9 to 11, 19 to 21, 25, 27, para.
4, and 39) 94 - 157
A. Parental guidance (art. 5) 95 -
99
B. Parental responsibilities (art. 18, paras.1 and 2) 100 -
109
C. Benefits 110 - 123
D. Separation from the parents (art. 9) 124
- 133
E. Family reunification (art. 10) 134
F. Illicit transfer and
non-return (art. 11) 135 - 138
G. Recovery of maintenance for the child
(art. 27, para. 4) 139
H. Children deprived of their family environment
(art. 20) 140
I. Adoption (art. 21) 141 - 145
CONTENTS (continued)
Paragraphs
J. Periodic review of placement (art.
25) 146
K. Abandonment or neglect (art. 19), including physical and
psychological recovery and social reintegration (art. 39) 147 -
157
VI. HEALTH AND WELFARE (arts. 6, 18, para. 3, 23, 24,
26
and 27, paras. 1 to 3) 158 - 202
A. Disabled
children (art. 23) 158 - 170
B. Health and medical services (art. 24) 171
- 182
C. Social security and child care services and facilities
(arts.
26 and 18.3) 183 - 196
D. Standard of living (art. 27.1 to 3) 197 -
202
VII. EDUCATION AND LEISURE, RECREATIONAL
AND
CULTURAL ACTIVITIES (arts. 28, 29 and 31) 203 - 241
A Education,
including vocational training and guidance (art. 28) 203 -
211
B. Objectives of education (art. 29) 212 - 231
C. Leisure,
recreational and cultural activities 232 - 241
VIII. SPECIAL
PROTECTION MEASURES (arts. 22, 38, 39,
40, 37 (b), (c) and (d), 32
to 36) 242 - 272
A Children in emergency situations 242 -
247
1. Refugee children (art. 22) 242 - 245
2. Children affected by
armed conflicts (arts. 38 and 39) 246 - 247
B. Children in conflict with
the law 248 - 258
1. Administration of juvenile justice (art. 40) 248 -
250
2. Treatment of children deprived of liberty, including
children
subjected to any form of detention, imprisonment
or
placement in a supervised institution (art. 37 (b), (c) and (d)) 251 -
256
3. Penalties that can be imposed on minors, with
particular
reference to capital punishment and life imprisonment
(art. 37 (a)) 257
4. Physical and psychological recovery and social
reintegration 258
C. Children suffering exploitation, including their
physical and
psychological recovery and social reintegration 259 -
271
1. Economic exploitation, in particular child labour (art. 32) 259 -
263
2. Drug abuse (art. 33) 264 - 265
3. Sexual exploitation and
sexual abuse (art. 34) 266 - 270
4. Sale, traffic and abduction of
children (art. 35) 271
D. Children belonging to a minority and indigenous
children (art. 30) 272
ANNEXES
INTRODUCTION AND GENERAL CONSIDERATIONS
1. The Grand Duchy of Luxembourg signed the Convention on the Rights of
the Child on 21 March 1990 and ratified it by Act of 21 December
1993 which (1)
approved the Convention on the Rights of the Child adopted by the United Nations
General Assembly on 20 November 1989
and (2) amended certain articles of the
Civil Code.
2. Pursuant to article 44 of the Convention, Luxembourg
submitted its initial report on the rights of the child in the Grand Duchy
of
Luxembourg to the international Committee on the Rights of the Child in July
1996. The international Committee on the Rights of
the Child considered the
initial report at the United Nations Office in Geneva in June 1998. In November
1998 the evaluation of the
initial report on the rights of the child was
published. This contained:
- an additional report concerning the implementation of the Convention (List of issues to be taken up in connection with the consideration of the initial report);
- the concluding observations of the international Committee on the Rights of the Child and the position of the Luxembourg Government;
- the future measures envisaged by the Government.
3. The present
report by the Luxembourg Government constitutes the second report on the
implementation of the Convention on the Rights
of the Child under article
44.1(b) of the Convention. It describes the principal measures adopted by the
Grand Duchy of Luxembourg
to give effect to the rights recognized in the
Convention and the progress made with respect to the enjoyment of those
rights.
With a few exceptions, rather than reproduce the basic
information provided in the first report the present document simply refers
to
it and indicates the changes which have taken place since 1998.
The
report has been prepared by a drafting group consisting of representatives of
various ministries, namely:
- Ministry of the Family, Social Solidarity
and Youth,
- Ministry of Foreign Affairs, Foreign Trade, Cooperation and
Defence,
- Ministry of Culture, Higher Education and
Research,
- Ministry of National Education, Vocational Training and
Sport,
- Ministry of Justice,
- Ministry for the Promotion of
Women,
- Ministry of Health,
- Ministry of Labour and
Employment,
together with:
- members of the ad hoc committee on the rights
of the child.
4. Considering Luxembourg’s attachment to democratic
values and aware of the fact that a joined-up and consistent policy is
indispensable in this field, the Government deemed it advisable to set up a
“think tank” to promote a dynamic partnership
with civil society
and, moreover, to propose a programme for education in human
rights.
5. Accordingly, on 26 May 2000, the Government adopted a
Government Regulation in Council creating the Consultative Commission on
Human Rights.
This Commission is a governmental consultative body
responsible for assisting the Government, by making studies and giving opinions,
in all matters of general interest concerning human rights on the territory of
the Grand Duchy of Luxembourg.
It gives opinions and conducts studies
either on its own initiative or at the Government’s request and can
propose to the Government
measures and action programmes for the protection and
promotion of human rights, particularly in the schools and universities and
at
work.
The Commission also acts as the national correspondent for the
European Monitoring Centre for Racism and Xenophobia.
1. In the light of the Vienna Declaration and Programme of Action of 1993,
the Committee encourages the State party to consider reviewing
its reservations
with a view to their withdrawal.
6. At this stage, the Government,
having reviewed its reservations with respect to the Convention on the Rights of
the Child, does
not envisage withdrawing them.
2. The Committee
recommends that the State party, on a priority basis, take all necessary
measures to ensure that its domestic legislation
is in full conformity with the
provisions and principles of the Convention.
7. Reference should be
made to paragraphs 47 to 56 (Alignment of the legislation and national
practice on the provisions and principles of the Convention) of this
report.
3. The Committee encourages the State party to adopt a
comprehensive strategy for children. The Committee also wishes to suggest
that
the State party envisage the establishment of a permanent mechanism of
coordination, evaluation, monitoring and follow-up for
policies aimed at the
protection of the child to ensure that the Convention is fully respected and
implemented, at the central and
local levels. In this respect and as part of
the ongoing efforts of the State party to promote and protect the rights of the
child,
the Committee encourages the State party in its efforts to establish an
independent monitoring body, such as an Ombudsperson.
8. Although the
Government has assigned the task of coordinating the promotion of the rights of
the child to the Ministry of the Family,
it should be noted that many other
departments have direct responsibility for numerous activities on behalf of
children, for example:
the Prime Minister’s Office - Ministry of State
(communications and the media); Foreign Affairs (cooperation and development
aid); Tourism and Housing (family housing and sex tourism); Education; Justice
(legal protection); Promotion of Women (equal opportunities);
Health; Social
Security; Transport; and Labour and Employment.
9. In 1996, an ad hoc
committee on the rights of the child was set up under the Ministry of the
Family. As part of a multidisciplinary
approach, the committee participates, in
an advisory capacity, in the coordinating missions relating to the rights of the
child which
the Government has assigned to the Department of the Family. This
body, which consists of ten members from various NGOs and different
professions
(medicine, psychology, law, social work and special education), meets in
principle once a month to examine various problems
submitted to the Department
of the Family and involving possible infringement of the rights of the child.
Between 1999 and 2001,
numerous meetings of the committee were devoted to the
examination of the opinion of the Council of State of 25 March 1999 on the
draft
law on the promotion of the rights of the child and the social protection of
children as well as to participation in the drafting
of the national report on
the follow-up to the World Summit for Children.
10. In the light of the
above-mentioned opinion of the Council of State, the Government amended the
draft law on the promotion of
the rights of the child and the social protection
of children. The draft as it stands at the time of preparation of this report
retains
the idea of an “Ombuds”
committee[1] whose six members form a
multidisciplinary team able to draw upon a wide range of professional and family
experience. The chairman
is to work for the committee full-time which will
guarantee the minimum necessary availability while facilitating identification
by the public and by children, in particular.
4. The Committee
recommends that the State party continue to disseminate the Convention in
appropriate languages to adults and children
alike. It also recommends that the
authorities continue to ensure awareness raising, education and training
programmes about the
Convention on the Rights of the Child for professional
groups working for and with children, such as: judges, lawyers, law enforcement
and army officials, civil servants, including at the local level, personnel
working in institutions or other places of detention
for children, health
personnel and social workers.
11. The measures taken to make the
Convention on the Rights of the Child better known were described in
paragraphs 141 to 146 of the initial report and in paragraph 6 of the additional
report.
It is important to bear in mind that raising the awareness of the
general public and children is one of the primary objectives of
promotion of the
rights of the child.
The text of the law approving the Convention on the
Rights of the Child is in French. German and Luxembourgish translations are not
available.
The initial report was presented at a press conference on 5
August 1996 and anyone interested can obtain a free copy from the Department
of
the Family, together with free copies of the evaluation of the initial report
and the additional report.
Some articles of the Convention have been
published in a form accessible to children.
12. The following is a
nonexhaustive list of measures taken by the Ministry of the Family during the
period from 1996 to 2001:
- Posters illustrated by a Luxembourg cartoonist stressing the essential rights of children (intended for primary school pupils);
- Publication of a comic strip called “Décke Gas an der Krommheck”;
- Publication of a book for children aged between 9 and 12;
- Publication of a postcard and a pamphlet in five languages explaining the rights and duties of children;
- The silent march on 21 November 1996 organized in collaboration with the Ministry of Youth and about 80 public and private bodies;
- Organization of various seminars.
13. Three further specific
actions by the Department of the Family deserve mentioning:
- A series of articles on the common theme of the family and the rights of
the child was published in the periodical “Gaart en Heem” of
the Luxembourg League of Plot and Hearth. The League’s annual booklet for
1998 was devoted entirely to the question
of the rights and duties of children.
Altogether, 40,500 copies of the booklet were printed.
- The Ministry of the Family collaborates with and supports the Luxembourg
Red Cross in publishing “Young Cross”, a magazine
for 13 to 15
year-olds which contains articles on the rights of the child.
- In May 1998, the Ministry of the Family actively participated in the
Caritas Fortnight. Sets of 6 postcards, each representing
an article of the
Convention, were prepared by children aged 6 to 13. Two hundred children
submitted designs and all of these were
put on display at Caritas headquarters
throughout the month of May.
14. The “Jugend-Infobus”, which
has been operating since 1997, has also become an important and interesting
facility for
young people who can use it to access the information they
need.
15. The 10th anniversary of the Convention on the Rights of the
Child was marked by the organization of a press conference at which
the Minister
for the Family recalled the history of the Convention, presented the
balance-sheet for the last 10 years and outlined
the Government’s concerns
and priorities in connection with the promotion of the rights of the child. At
this press conference
an information note by the ad hoc committee on the rights
of the child concerning the reporting of suspicions of sexual abuse, published
by the Ministry, was also brought to the attention of the public. This note,
which is intended for professionals in the education
and social assistance
sectors, contains extracts from the Convention on the Rights of the
Child.
16. The publication “Young people, your rights and
duties”, which dates from 1994, is being reissued in three volumes,
the
first of which has just appeared in the form of a comic strip on the rights of
the child entitled “Ech och”. This
refers to 21 articles of the
Convention and is mainly aimed at children not yet able to read and write.
Incidentally, refugee children
also find this publication useful.
17. The
National Youth Service of the Ministry of the Family, Social Solidarity and
Youth, in collaboration with the Mediation Centre,
is preparing an information
package specifically adapted for these target groups.
18. As part of
their training, future members of the Luxembourg legal service attend lectures
and courses given by Luxembourg and
French judges and law officers teaching at
the French National Legal Service Training College. Further training is provided
through
public and private institutions (e.g. reception centres) and at the
German, as well as French, Legal Service Training College.
This training
includes courses that deal with subjects relating to the rights of the
child.
Likewise, several units of the basic training provided for future
police officers are reserved for this particular topic in connection
with the
protection of the rights of the child.
5. The Committee recommends
that the State party fully take into account in its legislation all the grounds
for protection from discrimination
as spelled out in article 2
of the Convention. In particular, the Committee recommends that the
State party take all appropriate
measures to ensure that children born out
of wedlock do not suffer discriminatory treatment or stigmatization, and that
the terms
"legitimate" and "illegitimate", which are currently used in the Civil
Code, be eliminated. In view of the multinational dimension
of the society, the
Committee further recommends that the State party take all appropriate measures,
including legal ones, to guarantee
all the rights set forth by the
Convention to all children living within its jurisdiction, in the light of
articles 2,
3 and 22.
19. The measures taken by
Luxembourg to prevent and combat all forms of discrimination against foreign
children, children with disabilities
and children born out of wedlock were dealt
with in paragraphs 160 to 162 and 753 to 755 of the initial report and in
paragraphs
8 and 25 of the additional report.
It should be noted that the
Act of 19 July 1997, which supplemented the Criminal Code by modifying the
definition of the offence of racism and creating the offence
of revisionism and
other conduct based on illegal discrimination, amended article 454 of the
Criminal Code as follows:
“Discrimination shall be taken to mean any distinction made between
natural persons by reason of their origin, colour, sex, sexual
orientation,
family situation, state of health, disability, customs, political or
philosophical opinions, trade union activities,
affiliation or non-affiliation,
genuine or supposed, to a specific ethnic group, nation, race or
religion...”.
20. As regards children born out of wedlock and,
more particularly, the use of the terms “legitimate” and
“illegitimate”,
reference should be made to the document evaluating
the initial report and, more particularly, to the position taken by the
Luxembourg
Government on the main areas of concern:
“In Title VII the Civil Code distinguishes between lawful descent
and natural descent.
The term illegitimate descent does not appear in the Civil
Code.
Article 354-1 of the Civil Code expressly provides for the child born out
of wedlock to have the same rights and the same duties as
the legitimate child.
Thus there is no discrimination.”
6. It is the Committee's
view that further efforts must be undertaken to ensure that the general
principles of the Convention, in
particular "non-discrimination" (art. 2), the
"best interests of the child" (art. 3) and the "respect for the views of the
child"
(art. 12), not only guide policy formulation and decision-making, but
also are integrated appropriately into any judicial and administrative
decisions, as well as in the development and implementation of all projects and
programmes which have an impact on children.
21. The Government has
instructed the judges, law officers and officials concerned to implement the
Committee’s recommendation.
22. The Act of 27 July 1997 amending
certain provisions of the Civil Code, the Code of Civil Procedure, the Code of
Criminal Procedure
and the Administration of Justice Act clarified the rules
governing the hearing of child witnesses by modifying article 388-1 of
the Civil
Code and introducing an article 881-15 into the Code of Civil Procedure (see
paragraphs 74 ff. of this report).
23. As regards the protection of young
persons in the youth courts, minors are party to the
proceedings.
7. In order to protect fully the rights of children born
anonymously ("under x"), the Committee recommends that the State party take
all
appropriate measures to ensure that the provisions of article 7, especially the
right of the child to know his or her parents,
be fully enforced in the light of
the principles of "non-discrimination" (art. 2) and the "best interests of the
child" (art. 3).
24. As mentioned in the initial report and the
additional report, on 19 October 1993 the Chamber of Deputies adopted a motion
inviting
the Government to obtain the opinion of the National Consultative
Committee on Life Sciences and Health Ethics (CNE) on the questions
of the
anonymity of the parents in cases of anonymous births and of the anonymity of
the father in cases of artificial insemination
by anonymous donor. The Committee
was consulted by the Government in 1996 and its opinion was made public on 8
March 2000 at a press
conference attended by the competent Minister, the
Minister of Culture.
25. In its opinion, the Committee made the following
recommendations:
“Whereas
the CNE
makes the following recommendations:
The major
problems
Addition ethical considerations
Legal
recommendations
If, as the CNE suggests, the legislature opts
for one of the median solutions envisaged, it should:
26. It should be
noted that, in any event, the Central Statistical and Economic Research Service
(STATEC) recorded only one case of
anonymous birth during the period from 1995
to 1999.
8. In the light of article 17 of the Convention, the
Committee recommends that the State party take all appropriate legal and other
measures to protect children from being exposed to violence and pornography
through video movies and other modern technologies, including
the Internet. The
Committee also recommends that the State party pursue its efforts to adopt
legislation effectively prohibiting
the possession of pornographic material
involving children. Bilateral cooperation with neighbouring countries should be
engaged
to this effect.
27. The Act of 31 May 1999 strengthening
the measures against trafficking in human beings and the sexual exploitation of
children introduced
amendments to the Criminal Code and the Code of Criminal
Procedure. Article 5 added to the Criminal Code an article 384 which
expressly makes child pornography a criminal offence. Thus, anyone who
knowingly holds documents, printed matter, images, photographs, films or other
objects of a
pornographic nature involving or depicting minors under the age of
18 will be liable to a term of imprisonment and a fine. This article
also
provides for the mandatory confiscation of such objects in the event of a guilty
verdict. Other aims of the Act are significantly
to increase the penalties
applicable to various forms of sexual exploitation of children, to extend the
extra-territorial prosecution of sex tourists, and to permit the use of
audio and audiovisual recordings of the testimony of minors or witnesses
during legal proceedings thereby helping to avoid any secondary traumatization
of the victim
as a result of having to give evidence
repeatedly.
Furthermore, on the occasion of the UN Millennium Summit, on
6 September 2000, Luxembourg signed the Optional Protocol to the Convention
on the Rights of the Child on the sale of children, child prostitution and child
pornography.
9. In the light of articles 3, 19 and 28.2, the
Committee recommends that corporal punishment at home and in care institutions
be
explicitly prohibited by law.
28. In connection with this
paragraph, see paragraph 30 (ASFT Act) and paragraphs 90 to 93 (Right
not to be subjected to torture or other cruel, inhuman or degrading
punishment) of this report.
10. The Committee encourages the State
party to take all appropriate measures, including of a legislative nature, to
ensure that a
child placed in any form of institution is guaranteed all his/her
rights set forth by the Convention, in particular the right to
periodic review
of placement. The Committee also recommends that the State party establish a
monitoring mechanism for care and other
types of institutions. Particular
attention should be paid to monitoring children placed in foreign institutions
when specialized
expertise or appropriate facilities do not exist in the State
party. In this regard, the Committee recommends that a study to assess
the
impact of placement of children in neighbouring countries be
undertaken.
29. Voluntary placements can be reviewed at any
time.
With regard to placements ordered by the court, article 37 of the
1992 Protection of Young People Act provides as follows: “The youth
court or judge ... may at any time, either on the initiative of the court or
judge or at the request of the Public Prosecutor's
Office, the minor, or his
parents, guardian or other persons having custody of him, or on the report of a
probation officer, revoke
or amend the measures taken and act, within the limits
of this Act, in the best interests of the child.
However, when
the request is made by the minor or by his parents, guardian or other persons
having custody of him, it may not be submitted
until one year has elapsed from
the date on which the decision ordering the measure became final. If the request
is rejected, it
may not be resubmitted until one year has elapsed from the date
on which the decision to reject became final. In any event, these
measures are
subject to review every three years if they have not meanwhile ceased to have
effect (...).”
30. The Act of 8 September 1998 governing
relations between the State and organizations working in the social, family and
therapeutic
fields, together with its Grand-Ducal regulations, makes it possible
to monitor social, family and therapeutic institutions and
activities.
This Act, the so-called ASFT Act, provides the State with a
number of useful tools for controlling service providers in terms of both
the
quality of the services and the management of public funds. Under this Act,
anyone intending to undertake or perform, other than
casually, as a main or
secondary occupation and for consideration, one of the following social,
socio-educational, medico-social
or therapeutic activities:
− the reception and accommodation of more than three persons at a time, by day and/or by night;
− the provision of advisory, help, care, assistance, counselling, social training, community work or vocational guidance services
must
hold accreditation issued by the Minister for the Family, the Minister for the
Promotion of Women, the Minister for Youth or
the Minister for Health, whichever
is competent.
To obtain accreditation, applicants must be of good repute,
have buildings and premises or other infrastructure that meet both minimum
health and safety standards and the needs of the users, have a sufficient number
of trained staff, submit a financial statement and
provisional budget and
guarantee that the accredited activities are available to users regardless of
any considerations of an ideological,
philosophical or religious nature and that
the user is entitled to the protection of his privacy and respect for his
religious and
philosophical beliefs.
Accreditation is granted for an
indefinite period and for the activities listed. However, it will lapse if not
used for more than
two years and may be withdrawn for failure to comply with the
laws and regulations.
The minister who grants the accreditation is
responsible for monitoring its use. Infringements of the Act and its
implementing regulations
may be investigated and established by officials acting
in the capacity of a police officer.
Furthermore, the Act authorizes the
State to grant, on certain conditions, financial assistance with the performance
of the activities
in question, as well as with related investment.
On 31
December 2001, the following Grand-Ducal Regulations were adopted in
implementation of the said Act:
− Grand-Ducal Regulation of 10 December 1998 on the accreditation of managers of medico-social and therapeutic services;
− Grand-Ducal Regulation of 8 December 1999 on the accreditation of managers of services for the elderly (repealing the Grand-Ducal Regulation of 11 December 1998);
− Grand-Ducal Regulation of 18 December 1998 implementing articles 1 and 2 of the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields as regards the governmental accreditation of managers of services for disabled persons;
− Grand-Ducal Regulation of 20 December 2001 implementing articles 1 and 2 of the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields as regards the governmental accreditation of managers of day care facilities for children, without accommodation (repealing the Grand-Ducal Regulation of 28 January 1999);
− Grand-Ducal Regulation of 28 January 1999 on the accreditation of managers of services for young people;
− Grand-Ducal Regulation of 19 March 1999 on the accreditation of managers of services for girls, women and women with children;
− Grand-Ducal Regulation of 16 April 1999 on the accreditation of managers of reception centres for children and young adults, with accommodation;
− Grand-Ducal Regulation of 14 January 2000 establishing the conditions and formalities for the accreditation of family placement assistance services provided for by the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields;
− Grand-Ducal Regulation of 9 January 2001 implementing articles 1 and 2 of the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields as regards the governmental accreditation of managers of services for adults, alone or with children;
− Grand-Ducal Regulation of 29 March 2001 establishing the conditions and formalities for the accreditation of the activity of receiving and accommodating, by day and/or by night, more than three and fewer than eight minors at a time, in the home of the person carrying on the activity, provided for by the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields.
The Grand-Ducal Regulation on the governmental
accreditation of managers of services for young people and that on the
accreditation
of managers of reception centres, with accommodation, for children
and young adults expressly require, in their articles 7.5 and
5, respectively,
the manager of services that fall within the scope of these regulations to
guarantee treatment that complies with
the provisions of the Convention on the
Rights of the Child.
31. Young people placed in an establishment abroad
are monitored by the Ministry of the Family, Social Solidarity and Youth in
collaboration
with the specialized services which previously monitored the child
in its original environment. Consultation meetings are held at
regular intervals
to consider the young person’s plans.
11. The Committee
recommends that the State party ensure that domestic legislation, procedures,
policies and practices fully respect
the provisions of article 21 of the
Convention. It encourages the State party to consider ratifying the Hague
Convention of 1993
on Protection of Children and Cooperation in Respect of
Intercountry Adoption.
32. The Luxembourg Government has prepared a
bill ratifying the Hague Convention of 29 May 1993 on Protection of
Children and Cooperation
in Respect of Intercountry
Adoption.[2] The indispensable
consultations at national level have been begun in connection with this bill
which could be submitted to the Chamber
of Deputies in the course of 2002. For
further details see paragraphs 141 to 145 (Adoption) of this
report.
12. With regard to the rights of children with disabilities
and in the light of, inter alia, the provisions of article 23 of the Convention,
the Committee encourages the State party to take all measures to implement fully
the 1994 Law on school inclusion.
33. With respect to this paragraph,
see paragraph 205 (School inclusion of children with disabilities) of
this report.
13. The Committee encourages the State party to
specifically integrate human rights education, including the rights of the
child,
in the school curricula.
34. With respect to this paragraph,
see paragraphs 224 to 228 (The rights of the child and human rights) of
this report.
14. The Committee recommends that the State party
undertake a comprehensive study to identify reasons for the drop in
breast-feeding
after the first month. It also recommends the extension of the
period of maternity leave, serious efforts to educate the public
- especially
new parents - on the benefits of breast-feeding and the adoption of other
measures, as necessary, to counteract any
negative impact on employment of women
who wish to continue breast-feeding their children for a longer period of time.
Finally,
the Committee recommends that the State party increase its efforts to
promote compliance with the International Code for Marketing
of Breast Milk
Substitutes.
35. The Act of 1 August 2001 on the protection of
pregnant workers and workers who have recently given birth or are breastfeeding
repealed and replaced the Act of 3 July 1975 on maternity protection for women
workers.
The new law has a dual purpose. Firstly, it was necessary to
take action pursuant to the reasoned opinion of the European Commission
of 6
August 1999 concerning the transposition of Council Directive 92/85/EEC of 19
October 1992 on the introduction of measures to
encourage improvements in the
safety and health at work of pregnant workers and workers who have recently
given birth or are breastfeeding,
in which the European Commission had drawn
attention to an inconsistency between articles 2 (definition of pregnant woman)
and 4
(prohibition of night work), respectively, of the Act of 3 July 1975 and
the Directive. Secondly, the new Act takes into account
the problems posed by
the system of formal prohibitions on exposure to certain agents or working
conditions as specified in articles
5 and 6 of the amended Act of 3 July 1975 on
maternity protection for women workers. One of the problems revealed by
practical experience
was that the excessively rigorous application of the old
system could lead to a very large number of pregnant women losing their
jobs,
regardless of the real risk incurred and the wishes of the women
concerned.
The new Act maintains the principle of 8 weeks antenatal
maternity leave prior to confinement and 8 weeks postnatal maternity leave.
Postnatal leave is 12 weeks in cases of premature or multiple birth, as in the
case of a mother who breastfeeds her child. Any antenatal
leave not taken is
added to the postnatal leave if the child is born earlier than expected. If the
child is born later than expected,
the prohibition on employing the pregnant
woman is extended up to confinement, without the period of postnatal leave being
reduced.
At her request, during the course of a normal working day the
breastfeeding mother must be allowed breastfeeding time divided into
two
45-minute periods at the beginning and end of her normal work schedule. If the
working day is interrupted only by a one-hour
break, the two periods can be
combined into a single breastfeeding period of at least 90 minutes. The same
provision applies if it
is impossible for the woman to breastfeed her child in
proximity to the workplace. Breastfeeding time counts as working time and
gives
entitlement to the normal wage.
Pregnant and breastfeeding women cannot
be required to work overtime. Similarly, the breastfeeding woman - up to the
child’s
first birthday - cannot be required to work between 10 p.m.
and 6 a.m., when the competent works medical officer considers this might
be
prejudicial to her safety or health.
The Act also provides for special
protective measures for pregnant or breastfeeding women insofar as they may in
no circumstances
be required to perform activities involving a risk of exposure
to certain agents (physical, biological or chemical) or to certain
working
conditions.
Finally, the Act maintains the principle that a pregnant
female employee may not be dismissed. Thus, the employer may not notify a
female
employee of the termination of the employment relationship nor, where
appropriate, summon her to a preliminary interview when
she is medically
certified as pregnant or for a period of 12 weeks following the birth of the
child. If termination is notified before
the pregnancy is medically confirmed,
the female employee may, within eight days of receiving notice, provide evidence
of her condition
by submitting a certificate by registered post. Any dismissal
notified in breach of the prohibition on dismissal and, where appropriate,
the
summons to a preliminary interview will be null and void.
36. As regards
the incomplete implementation of the International Code for Marketing of Breast
Milk Substitutes, reference should
be made to the additional report. Luxembourg
has applied part of the Code under the amended Grand-Ducal Regulation of 20
November
1993 on infant formulae and follow-on formulae, based on amended
European Directives 91/321/EEC of 14 May 1991 and 92/52/EEC of 18
June
1992.
Since the implementation of this Regulation, all advertising for
and distribution of samples of infant formulae and giveaways to young
mothers
has ceased.
37. The Act of 12 February 1999 on the implementation of
the national plan of action for the promotion of employment 1998 introduced
parental and family leave to Luxembourg, the main aims being the improved
reconciliation of private life with working
life and the promotion of equality
of opportunity.
15. The Committee encourages the State party to
undertake studies on the causes of suicide and other mental health problems
among
young people and to adopt measures to combat this phenomenon. It further
recommends that the State party undertake "youth-friendly"
preventive, curative
and rehabilitative measures to address the increasing problem of drug and
substance abuse among young adolescents.
38. The results of two
studies, namely, a study of juvenile mortality in Luxembourg (see paragraph 174)
and a study of young people’s
well-being (see paragraph 175), are about to
be published.
16. The Committee recommends the reinforcement of the
State party’s legislation, policies and programmes to prevent and combat
all forms of sexual exploitation and abuse, including child prostitution, child
pornography and trafficking in children. In this
regard, the Committee
recommends that the State party establish a comprehensive national plan of
action and implement the recommendations
of the 1996 Stockholm Congress against
Commercial Sexual Exploitation of Children.
39. Special child
protection measures and, in particular, the protection of the child against
abuse and sexual exploitation have always
received the close attention of the
Luxembourg Government.
Thus, the Act of 31 May 1999 strengthening
the measures against trafficking in human beings and the sexual exploitation of
children and amending the Criminal
Code and the Code of Criminal Procedure
reinforced and supplemented the existing legislation.
On 6 September
2000, the Government signed the Optional Protocol to the Convention on the
Rights of the Child on the sale of children, child prostitution and child
pornography.
40. The various initiatives that form part of the
National Programme of Action against the Sexual Exploitation of Children,
produced by the Minister for the Family, Social Solidarity and Youth after the
1996 Stockholm World Congress, include raising the
awareness of the general
public, educating children and young people, and training of
trainers.
The broad outlines of the National Programme were described in
paragraph 30 of the additional report. In 1997, a first training cycle
was
organized for professionals confronted with child victims of sexual abuse. These
study days on “Incest and sexual abuse”
comprised various seminars
and public conferences attended by persons from various professional backgrounds
such as teaching, police
work, the magistracy, medicine, and the
socio-educational sector. In 1999, several series of training seminars on
psychotraumatological
techniques were organized to enable professionals to hone
their skills in the treatment of victims of sexual exploitation. At the
request
of the participants, these seminars and lectures were continued in 2000 and
2001. In 2001, the International Day of the Rights
of the Child was devoted to
this issue, in cooperation with ECPAT Luxembourg. The Minister for the Family,
Social Solidarity and
Youth organized an awareness day in which pupils from
several high schools participated.
41. Within the context of the Action
Programme, the ad hoc committee on the rights of the child prepared an
information note on “Reporting
suspicions of the sexual abuse of a minor
for educators and social workers”. This was published in 1999 and reissued
in 2000
by the Ministry of the Family, Social Solidarity and Youth. The note,
prepared in consultation with the prosecution service of the
Luxembourg district
court and experts from various ministerial departments, is aimed at assisting
teachers, educators, health professionals
and social workers who, suspecting
sexual abuse, seek guidance on how to proceed and clarification as regards the
legislative situation.
42. Priority has also been given to aiding the
victims. Thus, a specialized multidisciplinary intervention unit, consisting of
experts
from various associations and institutions and known as “INFO VIOL
- SEXUAL ABUSE”, has been in place since 1 December
1999.
Reference
should also be made to paragraphs 266 to 270 (Sexual exploitation and sexual
abuse) and 271 (Sale, trafficking and abduction of children) of this
report.
17. With regard to the administration of juvenile justice,
the Committee recommends that the State party take all measures to fully
integrate the provisions of the Convention, in particular articles 37, 40 and
39, as well as other relevant international standards
in this area, such as the
Beijing Rules, the Riyadh Guidelines and the United Nations Rules for the
Protection of Juveniles Deprived
of their Liberty in its legislation, policies
and practices. Special attention should be given to alternatives to detention,
to
preventing suicide in detention, to providing appropriate infrastructures to
detained children in order to fully ensure their separation
from adults and to
guarantee that they have regular contacts with their family. The right of
detained children to education, including
vocational training, should be fully
taken into account. The Committee strongly recommends that the State party take
all appropriate
measures to implement all appropriate recommendations adopted by
the interministerial working group to improve drastically the conditions
of
detention of children.
43. In paragraph 29 of the additional report
it is stated that “The ad hoc Critical Analysis Commission on 11
February 1998 drew up the construction programme concerning the security unit to
be
created within the State Socio-Educational Centre in Dreiborn. This programme
provides for two buildings, one being reserved for
training and leisure
activities and the other for reception, administration and two
“family” units.
It should be noted that the
construction programme appears in the multi-annual budget of the Ministry of
Public Works.”
At the time of preparation of this report,
Luxembourg does not have a secure reception unit for young people whose
behaviour poses
a threat to themselves or to those around them. Although the
State Socio-Educational Centres take in the majority of young delinquents,
they
are not equipped forcibly to detain minors who refuse to accept the orders of
the competent courts. Accordingly, Luxembourg’s
only prison continues to
receive such minors. In its declaration of August 1999, the present Government
gave a formal undertaking
to create a secure unit for minors within the
framework of the State Socio-Educational Centres. By rapidly completing this
project
the Government intends to ensure compliance with the recommendations of
the Council of Europe’s Committee for the Prevention
of
Torture.
44. In Luxembourg prison, the educational supervision,
psychological and moral counselling, teaching, physical education and medical
care of minors are provided by trained personnel.
For further details,
see paragraphs 253 to 256 (Confinement in a correctional institution and
orders of temporary custody in a prison) of this
report.
18. Finally, in the light of article 44, paragraph 6, of the
Convention, the Committee recommends that the initial report and written
replies
submitted by the State party be made widely available to the public, along with
the summary records of the relevant meetings
and concluding observations adopted
by the Committee. Such wide distribution should generate debate and awareness
of the Convention
and the state of its implementation, particularly within the
Government, the relevant ministries, the Parliament and non-governmental
organizations.
45. Reference should first be made to paragraphs 11 to
18 of this report.
In particular, the last ten years have been
characterized by the promotion of the rights of the child in various fields.
This intention
was expressly incorporated in the Government declaration of 22
July 1994 in which the Government undertook to promote the rights
of the
child.
In 1996, an ad hoc committee on the rights of the child was set up
within the Ministry of the Family. As part of a multi-disciplinary
consultative
approach, this committee is participating in the coordinating missions
pertaining to the rights of the child which the
Government has assigned to the
Ministry of the Family.
In general, the implementation of the Convention
on the Rights of the Child has led to a change in attitude and to increased
interest
in and the attachment of greater importance to the rights of the child.
In signing and ratifying the Convention, Luxembourg has undertaken
to adopt all
the legislative, administrative and other measures necessary to ensure respect
for the rights set forth in this basic
text. In recent years, in a very
propitious economic and social context, Luxembourg has been able to create a
generally favourable
environment for the child and its family.
I. GENERAL MEASURES OF IMPLEMENTATION
46. General measures of implementation were dealt with in paragraphs 125
to 146 of the initial report and in chapter “A. General measures of
implementation, paragraphs 1 to 6” of the additional report.
A. Alignment of the legislation and national practice on
the principles
and provisions of the Convention
47. First of all, it should be recalled that at the time of ratification
of the Convention on the Rights of the Child, certain articles
of the Civil Code
were amended to align the national legislation on the provisions of the
Convention (see paragraph 115 of the initial
report).
48. Moreover, in
the context of ratification of the Convention, the Chamber of Deputies adopted
four motions concerning the establishment
of a post of ombudsman for children,
parental authority, pornography involving children, and anonymous births (see
paragraphs 52
to 56 of this report).
49. The Act of 27 July 1997 amending
certain provisions of the Civil Code, the Code of Civil Procedure, the Code of
Criminal Procedure
and the Administration of Justice Act introduced a series of
measures concerning, in particular, the improvement of the arrangements
for
hearing child witnesses..
50. On the occasion of the UN Millennium Summit
on 6 September 2000, Luxembourg signed the optional protocols to the Convention
on
the Rights of the Child on the involvement of children in armed conflicts and
on the sale of children, child prostitution and child
pornography. The two
protocols have still to be ratified by the legislature.
51. As regards
the direct application of the Convention, paragraphs 123 and 124 of the
initial report still apply. Thus, the Council of State considers that it is for
the courts alone to decide whether or not an international convention is
sufficiently precise to be applicable. As indicated in the
initial report, in
judgement 4/94 of the Criminal Division, the Court of Appeal of the Grand Duchy
of Luxembourg acknowledged that
the “1989 Convention is directly
applicable with regard to the penalties to be imposed on minors for breaches of
criminal law, in view
of the principle that the international rule is
self-sufficient if its operative part itself enunciates a rule of conduct
binding
on those addressed therein; such is the case if it is sufficiently clear
and precise to justify its domestic application without
further intervention by
the national authorities, as, for example, in the case of application of article
37 of the Convention to
young offenders”.
In two judgments
dated 12 October 1997 and 10 March 1998, the Administrative Court upheld two
decisions of the administrative tribunal
of 21 April 1997 and 26 November 1997
which, in connection with article 9 of the Convention prohibiting the separation
of children
from their parents against their will, maintained that
“However, this principle is not absolute. Thus, article 9.1 authorizes
separation when the competent authorities determine it to be
necessary for the
best interests of the child, while article 9.4 recognizes separation resulting
from any action initiated by a State
Party, such as detention, imprisonment,
exile, deportation or death of one or both parents or of the child itself.
Accordingly, an
expulsion measure legally adopted by a State Party cannot
constitute a separation prohibited under article 9 of the
Convention”.
52. Paragraphs 125 to 140 of the initial report
and Chapter A, paragraph 3 of the additional report on general measures of
implementation
deal with the four motions adopted by the Chamber of
Deputies further to the ratification of the Convention on the Rights of the
Child concerning:
− the establishment of a post of ombudsman for children,
− parental authority,
− pornography involving children,
− anonymous births.
At the time of preparation of this
report, the situation was as follows:
53. Pursuant to the opinion of the
Council of State of 25 March 1999, draft Law No.
4137[3] on the promotion of the
rights of the child and the social protection of children was amended by the
Government. The new text, which
takes the comments of the Council of State
broadly into account, was the subject of a supplementary opinion on 9 October
2001. Thus,
the chapter on the social protection of children was deleted. As far
as possible, the text includes the formulas employed by the
Council of State in
its 1999 opinion. Considering, however, that the model of a committee is the
approach best adapted to Luxembourg’s
situation, the draft retained the
model of a 6-member committee to be known as the “Ombuds-Comité fir
d’Rechter
vum Kand” (ORK) with the “Ombudsperoun fir
d’Rechter vum Kand” as its chairman. He has the right to hear
any
child who so desires, but it is not his responsibility to deal personally with
the cases of those who turn to him.
According to article 2 of the draft
law, “The mission of the ORK is to ensure the protection and promotion
of the rights and interests of children, that is, persons under the
age of
eighteen”.
Article 3 stipulates that “In carrying out its mission, the ORK may, in particular:
− examine the systems established for protecting and promoting the rights of the child, so as to recommend, where appropriate, the necessary adaptations to the competent authorities;
− give its opinion on laws and regulations and on bills concerning the rights of the child;
− investigate the situation of children and ensure the implementation of the Convention on the Rights of the Child;
− submit to the Government and the Chamber of Deputies an annual report on the situation regarding the rights of the child and on its own activities;
− promote the development of freedom of expression for children and their active participation in matters that concern them;
− examine situations in which the rights of the child are not respected and make remedial recommendations;
− receive information and complaints concerning infringements of the rights of the child and hear, in accordance with procedures which it shall determine, any child which so requests;
− issue, on the basis of information or complaints or in connection with particular cases which it has investigated, recommendations or advice designed to ensure better protection for the rights and interests of the child”.
Once passed, the law should be implemented
as quickly as possible.
54. The motion relating to the adaptation of the
criminal law concerning public decency offences with a view to prohibiting
possession
of pornographic material depicting children led to the new Act of
31 May 1999 strengthening the measures against trafficking in human beings and
the sexual exploitation of children. This Act introduced amendments to the
Criminal Code and the Code of Criminal Procedure. Among other things, it also
significantly
increased the penalties applicable to the various forms of sexual
exploitation of children, extended the extra-territorial
prosecution of sex tourists and permitted the use of audio and
audio-visual recordings of the testimony of minors and witnesses in
judicial proceedings, thereby helping to avoid secondary traumatization of the
victim
due to having to give evidence repeatedly. The Act provides for different
penalties depending on whether the victim is a minor or
of age. The penalties
are more severe if the victim is under 14 or under 11, respectively. Article 5
adds to the Criminal Code an
article 384 expressly making child
pornography a criminal offence. Thus, anyone who knowingly holds
documents, printed matter, images, photographs, films or other objects of a
pornographic nature involving or depicting minors under the age of 18 will be
liable to a term of imprisonment and a fine. This article
also provides for the
mandatory confiscation of such items in the event of a guilty
verdict.
55. Regarding the motion inviting the Government to submit to
the National Consultative Committee on Life Sciences and Health Ethics,
for an
opinion, the question of the anonymity of the parents in cases of anonymous
births and that of the anonymity of the father in cases of artificial
insemination by anonymous donor, reference should be made to paragraphs
24 and
25 of this report.
56. With respect to the motion relating to parental
authority in cases of judicial placement of a minor, the present Government has
undertaken to revise the amended Protection of Young People Act of 10 August
1992. A special “Young People in Distress” committee has been
set up within the Chamber of Deputies. An interministerial working group has
just been established by the ministers with
responsibility for Justice and the
Family. The group will begin by making an in-depth examination of the problems
of young people
in distress.
B. Measures taken to make the Convention widely known (art. 42)
57. The measures taken to make the Convention on the Rights of the
Child widely known are listed in paragraphs 141 to 146 of the initial report
and in paragraph 6 of the additional report, as well as in paragraphs 11
to 18
of this report.
II. DEFINITION OF THE CHILD (art. 1)
58. The definition of the child has not changed since the initial
report.
59. Definition
In principle, the age of majority is
set at 18 years. The Luxembourg Civil Code defines a minor as “an
individual of either
sex who has not yet attained 18 years of age” (art.
388 of the Civil Code, Act of 6 February 1975).
Draft Law No. 4137 on the
promotion of the rights of the child incorporates this definition since it is
expressly aimed at persons
under 18.
On 1 January 2000, out of a total
population of 435,700 persons, 96,623 or 22% were children (source:
STATEC).
60. Statutory minimum age for certain purposes
The statutory minimum age for certain purposes was dealt with in
paragraphs 149 to 158 of the initial report.
Paragraph 150 of the initial
report (child labour) needs to be reviewed inasmuch as the Protection of
Children and Young Workers Act
of 28 October 1969 has been repealed and replaced
by the Protection of Young Workers Act of 23 March 2001. For further
details see paragraph 263 (Economic exploitation, in particular child
labour) of this report.
With regard to voluntary enlistment in the
armed forces (paragraph 155 of the initial report), it should be noted that on
the occasion
of the UN Millennium Summit, on 6 September 2000, Luxembourg signed
the Optional Protocol to the Convention on the Rights of the
Child on the
involvement of children in armed conflicts.
III. GENERAL PRINCIPLES
A. Non-discrimination (art. 2)
61. The measures taken by Luxembourg to prevent and combat all forms of
discrimination and, more particularly, discrimination against
foreign children,
children with disabilities and children born out of wedlock are described in
paragraphs 159 to 162 (discrimination
regarding affiliation, parental authority
and rights of succession) and 753 to 755 (measures against racism) of the
initial report.
62. As far as combating racism is concerned, the
Act of 19 July 1997 supplemented the Criminal Code by modifying the
definition of the offence of racism and creating the offence of revisionism and
other
conduct based on illegal discrimination.
63. The Act of 8
September 1998 governing relations between the State and organizations
working in the social, family and therapeutic fields (see paragraph 30) is
another useful tool for preventing discrimination. Thus, anyone engaged in one
of the activities listed in the Act must guarantee
that that activity is
accessible to users, regardless of any considerations of an ideological,
philosophical or religious nature.
The user of such a service also has the right
to protection of his privacy and respect for his religious and philosophical
convictions.
Grand-Ducal Regulation of 28 January 1999 on the
governmental accreditation of managers of services for young people expressly
requires
the service to respect and defend the principles set out in the
Universal Declaration of Human Rights and in the UN Convention on
the Rights of
the Child.
Grand-Ducal Regulation of 16 April 1999 on the accreditation
of managers of reception centres for children and young adults, with
accommodation, requires the reception centres to guarantee users treatment and
infrastructure that take into account their physical,
mental and social
well-being and respect the provisions of the Convention on the Rights of the
Child.
64. In the field of labour law, the Act of 28 June 2001 on the
burden of proof in cases of discrimination based on sex has made the laws
and regulations on equal treatment for men and women more effective. To this
end, the Act clearly defines the notion
of indirect discrimination, already
incorporated into the Luxembourg legislation by the amended Act of
8 December 1981, and takes
into account the relevant case-law. Moreover, it
transfers the evidential burden. Thus, in the event of a dispute it is for the
defendant
to prove that there has been no violation of the principle of equal
treatment.
65. It should be noted that Luxembourg signed the Council of
Europe’s Protocol No. 12 to the Convention for the Protection of
Human
Rights and Fundamental Freedoms at Rome on 4 November 2000.
B. Best interests of the child (art. 3)
66. The principle of “the best interests of the child”
was dealt with in paragraphs 163 to 169 of the initial report and in paragraph 9
of the additional report.
67. The notion of the best interests of the
child is not yet established as such in the Luxembourg legislation. The draft
law on the
promotion of the rights of the child and the social protection of
children uses the term for the first time in a piece of national
legislation.
68. The Civil Code refers to the “interests of the
child” but this difference in terminology is of no legal significance.
The protection of the child’s interests is given special
consideration in
the procedures relating to the delegation and forfeiture of parental authority,
in the context of the 1992 Protection
of Young People Act, in the law of
affiliation, in cases of adoption (advantage for the adopted child and good
reason), in divorce,
in particular as regards the exercise of the right of
custody, and where a minor is placed in a foster home.
69. The notion of
“the best interests of the child” is also taken into account
in policy discussions. The explanatory introductions to various laws make
reference to this principle
without the term being enshrined in the
legislation.
70. Nevertheless, more needs to be done to raise awareness;
thus, the culture of respect for the views of the child needs more intensive
promotion, as this principle is still not sufficiently deeply rooted in the
minds of the public.
C. Right to life, survival and development (art. 6)
71. In the Act approving the Convention, the Luxembourg Government
declared that article 6 of the Convention presents no obstacle
to
implementation of the provisions of Luxembourg legislation concerning sex
information, the prevention of back-street abortion
and the regulation of
pregnancy termination (see paragraphs 382 to 384 of the initial
report).
72. Chapters VI, VII and VIII offer a series of illustrative
examples of the efforts made to encourage the development of the child.
The
draft Law on the promotion of the rights of the child (see paragraph 53) is an
important text in this respect since it expressly
provides for the
Ombuds-Comité to be responsible for promoting the development of freedom
of expression for children and their
active participation in matters which
concern them.
73. Although not aimed solely at children, it is important
to mention the Voluntary Service Act of 28 January 1999, the purpose of
which is to encourage the participation of young people in voluntary activities
within the context of non-profit
nongovernmental organizations specially
approved by the minister responsible for youth. One objective of this Act is to
promote the
active engagement of young people in society by enabling them to
carry out activities of general public interest that could provide
them with an
educational experience.
To be accepted as a volunteer, the applicant must
be between 16 and 25 and must have lived in Luxembourg for at least two years.
The
period of voluntary service ranges from 6 to 12 months and the service
is continuous and full-time. It cannot be used as a substitute
for regular paid
employment. The young volunteer signs an agreement with an approved
organization. The agreement determines the rights
and duties of each party, the
terms and period of engagement, the training the volunteer will receive,
liability and the conditions
of termination of the agreement. At the end of his
service the volunteer is awarded a certificate.
The State gives the
volunteers a monthly allowance equal to one fifth of the minimum social wage and
pays their social security contributions.
Family allowances continue to be paid
during voluntary service, as well as unemployment benefits. Moreover, the
volunteer receives
concessions in connection with the use of public transport
and access to cultural and sporting events.
Young people who participate
in voluntary projects or programmes abroad are also eligible for the benefits of
this Act. Similarly,
the Act makes provision for young foreigners wishing to do
voluntary service in Luxembourg, so long as they participate in a project
recognized by the minister responsible for youth. In this case, the host
organization must, where appropriate, provide sickness,
disability and accident
insurance and take responsibility for the volunteer. The entry and right of
temporary residence of the young
volunteer are governed by the relevant laws and
regulations.
D. Respect for the views of the child (art. 12)
74. The principle of respect for the views of the child was dealt with in
paragraphs 170-172 of the initial report.
75. Thus, when the Convention
on the Rights of the Child was approved by the Act of 20 December 1993, certain
articles of the Civil
Code were amended and an article 388-1 on court hearings
involving children was introduced (see paragraph 115 of the initial
report).
76. The Act of 27 July 1997 amending certain provisions of the
Civil Code, the Code of Civil Procedure, the Code of Criminal Procedure
and the
Administration of Justice Act clarified the rules governing the hearing of child
witnesses and made it possible to take the
feelings of minor children into
account in divorce proceedings. The judge may decide at his discretion whether
or not to hear the
child and assesses the advisability of using the feelings
expressed, always in the interests of the child (art. 267 of the Civil
Code).
77. For clarification purposes, the aforementioned Act also
amended article 388-1 of the Civil Code.
“Art. 388-1. (1) In any proceedings concerning him, a minor capable
of understanding may, without prejudice to the provision made for
his
intervention or consent, be heard by the judge or the person appointed for that
purpose. (2) When the minor so requests, his
court hearing may not be excluded
except by means of a specially reasoned decision. (3) The minor may be heard
alone, with his attorney
or with a person of his choice. If the choice made by
the minor seems inconsistent with his interests, the judge may appoint another
person. (4) The hearing of the minor shall take place in the judge’s
chambers. (5) The minor’s court hearing shall not
classify him as a party
to the proceedings.”
78. The Act of 27 July 1997 also
introduced a new title on court hearings involving children into the new Code of
Civil Procedure.
Thus, article 1046 of the new Code of Civil Procedure on
the procedure for court hearings involving children reads as follows:
“(1) When the minor requests to be heard under article 388-1 of the
Civil Code, the following provisions shall apply:
(2) The request shall be made informally to the judge by the person
concerned. It may be made at any stage of the proceedings and
even for the first
time at appeal.
(3) There shall be no appeal against the decision on the request for a
court hearing formulated by the minor. The decision ordering
the court hearing
may, however, be amended or revoked by another specially reasoned decision when
the judge is aware of a serious
reason why the minor should not be heard under
the conditions initially envisaged.
(4) The decision ordering the court hearing may take the form of a simple
registrar’s note.
(5) A summons to the hearing shall be sent to the minor through the
registry by registered letter with acknowledgement of receipt.
The summons shall inform him of his right to be heard alone, with his
attorney or a person of his choice. The same day, the registrar
shall notify the
representatives of the parties by ordinary mail and, failing that, the parties
themselves by registered letter with
acknowledgement of receipt of the decision
ordering the court hearing. The notice shall reproduce the provisions of
paragraph (3).
(6) When the judge receives the request for a court hearing in the
presence of all the parties and the minor, the hearing may take
place at once.
If it is not proceeded with immediately, the summons to the minor and the
notification specified in the third sentence
of paragraph (5) shall be delivered
verbally.
(7) When the minor appears alone for the court hearing, the judge shall
inform him of his right to be heard with his attorney or another
person of his
choice. If the minor exercises this right, the hearing shall be postponed to a
later date. The attorney chosen by the
minor must so inform the judge. If the
minor requests to be accompanied by an attorney and he does not choose one
himself, the judge
shall request the chairman of the bar to appoint an
attorney.
(8) The decision refusing a court hearing shall be forwarded by the
registrar to the minor, by registered letter with acknowledgement
of receipt.
Where appropriate, a copy of the decision shall be forwarded to the
minor’s attorney.
(9) A court sitting as a bench may hear the minor itself or appoint one of
its members to hear the minor and report. ”
79. As far as
education is concerned, it is worth recalling the role of the Education
Councils under the Grand-Ducal Regulation of 23 May 1991 which allows the
pupils and their parents to play a limited part in the running of
high schools
and technical high schools.
The active members include representatives of
the following groups:
- teaching staff - 4 representatives,
- parents
- 2 representatives,
- pupils - 2 representatives.
Without prejudice
to the responsibilities of the headmaster, the teachers’ conference, the
class councils and form masters,
the education council has the following
attributions:
(1) it participates in the modification and adaptation of the regulations on
discipline and internal order determined by the Minister
for National
Education;
(2) it stimulates and organizes the school’s cultural,
social and sports activities;
(3) it submits to the Minister for National Education an annual report on the
general situation of the school;
(4) it gives opinions on the annual
budget proposals;
(5) it may give its opinion on the introduction or abolition of optional and
remedial courses, on the internal organization of the
high school and any other
questions submitted to it by the headmaster or the Minister for National
Education;
(6) it may make proposals on any issues concerning the life and organization of the school;
(7) it elaborates the establishment proposal mentioned in article 41 of the
Act of 4 September 1990 reforming technical secondary
education and
continued vocational training.
IV. CIVIL RIGHTS AND FREEDOMS (arts. 7, 8, 13 to 17, and 37(a))
A. Name and nationality (art. 7)
80. Name and nationality were dealt with in paragraphs 173 to 183 of the
initial report.
B. Preservation of identity (art. 8)
81. Paragraphs 179 to 183 of the initial report still apply.
C. Freedom of expression (art. 13)
82. Freedom of expression was dealt with in paragraphs 184 and 185 of the
initial report. Further details are given in Chapter VII
of this report.
D. Freedom of thought, conscience and religion (art. 14)
83. According to article 19 of the Constitution, “Freedom of
religion and of public worship as well as freedom to express one’s
religious opinions are guaranteed, subject to
the repression of offences
committed in the exercise of such freedoms”. For further details see
paragraphs 192 and 193 of the initial report.
84. Those requesting an
activity falling within the scope of the Act of 8 September 1998 governing
relations between the State and
organizations working in the social, family and
therapeutic fields (see paragraph 30) must guarantee that the accredited
activities
are available to users regardless of any considerations of an
ideological, philosophical or religious nature and that the user is
entitled to
the protection of his privacy and respect for his religious and philosophical
beliefs (art. 2(e)). Thus, personal beliefs
should not constitute an obstacle to
the user’s access to such services.
E. Freedom of association and peaceful assembly (art. 15)
85. The right of association is recognized by articles 24 and 25 of the
Constitution.
F. Protection of privacy (art. 16)
86. As indicated in paragraphs 195 to 198 of the initial report, the main
relevant legal provisions are article 12 of the Constitution guaranteeing
individual freedom, the Protection of Privacy Act of 11 August 1982, the
Protection of Young People Act of 10 August
1992, and the Act of 2 October 1992
amending the Act of 31 March 1979 regulating the use of personal data in
computer systems.
87. It should be noted that draft Law No.
4735,[4] once passed, will repeal
the Act of 31 May 1979 regulating the use of personal data in computer
systems.
88. Finally, article 458 of the Criminal Code establishes the
principle of professional secrecy which is binding upon doctors, surgeons,
health officers, pharmacists, midwives and all other persons who, by trade or
profession, hold positions of trust. Special laws such
as, in particular, the
Act of 26 March 1992 on the exercise and upgrading of certain health professions
make express reference to
article 458 of the Criminal Code.
G. Access to appropriate information (art. 17)
89. Children’s access to appropriate information was described in
paragraphs 186 to 191 of the initial report. Chapter VII of
the present report
deals with the facilities and resources available to children in this
respect.
H. The right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37 (a))
90. This right was dealt with in paragraphs 199 and 200 of the initial
report.
91. In the Act of 24 April 2000, Luxembourg, in accordance
with the recommendations of the United Nations Committee Against Torture,
introduced into its Criminal
Code specific provisions criminalizing acts of
torture within the meaning of the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
These provisions cover not only traditional physical torture
but also mental torture which is more subtle and seems to correspond
more
closely to modern times.
92. According to article 14 of the Luxembourg
Constitution, “No penalty may be fixed or applied except in pursuance
of the law”. Cruel, inhuman and degrading treatment and punishment
other than torture are repressed in the Luxembourg Criminal Code:
− by the provisions on offences involving abuse of authority (article 257 of the Criminal Code) and on offences involving assault and battery (articles 398 to 401 bis of the Criminal Code);
− as aggravating circumstances in connection with indictable offences against persons or property (e.g. inducement into prostitution - article 379 bis of the Criminal Code; extortion or theft with violence or menaces - article 473 of the Criminal Code);
− by the provisions relating to sexual abuse;
− by certain special laws.
93. For the changes that
have been made with respect to confinement in State Socio-Educational Centres,
see paragraphs 251 and 252
of this report.
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
(arts. 5, 18 paras. 1 and 2, 9 to 11, 19 to 21, 25, 27, para. 4, and 39)
94. Parental guidance, rights and duties of parents, joint responsibility
of parents and guardianship of minors were dealt with in
paragraphs 216
(Definition and basis of parental authority), 217 (Purpose of parental
authority), 218 (The reality) and 219 to 233
(Guardianship of minors) of the
initial report.
A. Parental guidance (art. 5)
95. Article 203 of the Civil Code on the joint exercise of parental
authority provides that “The spouses contract jointly, by the sole fact
of their marriage, the obligation to feed, maintain and bring up their
children”. Thus, the parents are the natural educators of the children
and remain obliged to provide them, even beyond the age of majority,
with the
means to pursue studies designed to prepare them for the profession they intend
to follow, provided, however, that they
show themselves fit to pursue
them.
The care services are regarded as being complementary to the family
environment.
96. As indicated in paragraph 15 of the additional
report, the Ministry of the Family’s services are having to deal with
an increasing number of requests for the placement of children
and adolescents.
For various reasons, more and more families seem to be overwhelmed by the task
of bringing up their children. These
reasons include:
− breakup of the family as a result, in particular, of divorce or separation;
− various forms of poverty (overindebtedness, housing problems, unemployment);
− confusion of the parents with respect to pedagogical concepts;
− new pedagogical challenges: media, drugs, violence, etc.;
− the psycho-social problems facing parents: alcoholism, drug addiction, mental illness, etc.
97. There are numerous observers who
consider that in many cases placement, a drastic solution which involves
considerable investment
and whose effectiveness is disputed, should be replaced
by socio-educational assistance formulas. Such action would be preventive
in the
sense that it would enable “unproductive” placements, which the
parents and children concerned almost always find
a very painful experience, to
be avoided. It would also help to shorten placements inasmuch as the authorities
concerned could envisage
the earlier reintegration of the child or young person
into the family.
98. An example is the “Families
First” project launched in 1999 by several NGOs, including the
Luxembourg Red Cross, with the assistance of the Ministry of the Family,
Social
Solidarity and Youth. This project is in no way intended to replace but rather
to supplement the numerous other initiatives
taken, in particular, by homes and
care centres. It is primarily intended to provide “follow-up” and
does not address
the question of prevention.
99. It should be noted that
the Ministries of the Family, Youth, Justice and National Education have already
taken various initiatives
in the field of mediation. Thus, in 1998, a
“Mediation Centre”, which mainly serves young people under the age
of 26,
was set up with the backing of the Ministry of the Family, Social
Solidarity and Youth and the National Youth Service. The mediation
offered by
the Centre is an optional procedure requiring the free and express agreement of
the persons concerned to engage in the
activity (mediation) with the aid of a
specially trained independent and neutral third party (the mediator). Mediation
should help
the individuals concerned to work out the elements of an
understanding that will permit the amicable settlement of their existing
differences and, as far as possible, govern their future relations. Mediation
ends in a written protocol of understanding signed
by the parties and
countersigned by the mediator.
Similar initiatives have been developed by
several NGOs such as Pro-Familia Dudelange and Familjen-Center CPF Luxembourg.
At the beginning
of January 2002, the ministers for the Family and Higher
Education, the president of the University Centre of Luxembourg and the
president of the University Institute Kurt Bösch (Sion, Switzerland) will
sign an agreement establishing three training courses
for mediators, including a
European master’s course in
mediation.[5]
B. Parental responsibilities (art. 18, paras. 1 and 2)
100. The principles governing parental authority were set out in
paragraphs 216 ff. of the initial report.
101. Paragraph 218 of the
initial report refers to article 380 of the Civil Code on the exercise of
parental authority over children
born out of wedlock. It was indicated that
parental authority over children born out of wedlock is exercised by the mother.
This
paragraph needs to be revised. Thus, in its judgement No. 7/99 of 26
March 1999, the Constitutional Court declared that article 380 of
the Civil Code was contrary to the principle of equality recognized by article
11(2) of the Constitution inasmuch as it assigned parental authority over a
natural child acknowledged by both parents exclusively to the mother.
In
a judgement dated 15 March 2000, the Court of Appeal (guardianship) held that
this judgement of the Constitutional Court “thus implies, in negative
terms, the extinction of the pre-eminence of the maternal bond in cases of
acknowledgement of the child
by both its parents and, in positive terms, the
equal right of each parent to exercise parental authority”. The Court
of Appeal continued: “The judgement of 26 March does not necessarily
imply the principle of the joint exercise of parental authority” and
“the constitutional requirement of equality is in fact satisfied by the
assignment of the exercise of parental authority to the mother
or to the father,
the choice to be determined by the interests of the
child”.
102. The provisions relating to guardianship
(paragraphs 219 to 223) have not changed since the initial
report.
103. The part of the initial report concerning transfers and
services (paragraphs 224 to 250) calls for the following
comments.
104. The amended Guaranteed Minimum Income (RMG) Act of 26 July
1986 was repealed and replaced by the Act of 29 April 1999 establishing a
right to a guaranteed minimum income.
The purpose of the new Act is
to provide adequate means of subsistence. It emphaizes and strengthens the right
to a guaranteed minimum
income (RMG) and vocational and social
reintegration.
The conditions for granting the guaranteed minimum income
have been eased, among other things, by revising the residence requirement
and
lowering the age threshold (25 years), and steps have been taken to prevent
possible abuse.
Article 5(3) of the Act reaffirms the principle according
to which in determining the guaranteed minimum income each child entitled
to
family allowances living in the domestic community is taken into
account.
However, the age limit of 25 does not operate in certain
specified cases and, in particular, for persons bringing up a child for which
they receive family allowances.
105. In paragraph 227, the initial report
indicated that the rate of the minimum social wage is determined by the age and
qualifications
of the recipient. The level of the minimum social wage for
adolescent workers under the age of 18 is fixed as a percentage of the
minimum
social wage for adults. The Act of 22 December 2000 amending articles 5 and 14
of the amended Act of 12 March 1973 reforming
the minimum social wage set these
percentages at 80% for adolescents aged 17 to 18 and at 75% for adolescents aged
15 to 17.
106. The Act of 8 December 2000 concerning the prevention of
overindebtedness and introducing a collective debt settlement procedure in
cases of overindebtedness includes measures designed to preserve the rights
of
persons entitled to maintenance. Thus:
- Article 3(3): “The lodgement of the formal application by the
debtor with the Overindebtedness Information and Advisory Service shall
automatically
entail the suspension of ongoing measures of execution against the
movable or immovable property of the debtor, with the exception
of execution
proceedings introduced against the debtor concerning his maintenance
obligation.”
- Article 12: “The district judge ruling in collective receivership
proceedings may at any stage of the proceedings suspend the ongoing measures
of
execution against the movable or immovable property of the debtor, with the
exception of execution proceedings introduced against
the debtor concerning his
maintenance obligation.”
107. The Act of 12 February 1999
concerning the implementation of the 1998 national plan of action for the
promotion of employment includes provisions relating to young workers. To
offer a fresh start for young people not yet over 30 who have been on the
unemployment
register for at least one month, this Act introduced the temporary
auxiliary contract and the work placement scheme which focus on
the training of
young job seekers and assign them hiring priority. Employers who provide work
for young people under one of these
measures receive contributions from the
State which are then topped up if the young people employed are members of the
underrepresented
sex.
108. Reference should also be made to paragraphs
232 and 233 of the initial report concerning the Welfare Domicile Act of 28 May
1897.
109. The information provided in the initial report is cited and
supplemented below.
C. Benefits
1. Family benefits
110. There is a
very clear theoretical distinction between family benefits, based in principle
on the presence of a child, and maternity
benefits based on a social risk, that
of maternity.
This difference also emerges at the institutional level,
the National Family Benefits Fund being competent for family benefits, whereas
the health insurance funds are responsible for covering the maternity
risk.
It should be noted, however, that certain benefits fall on the
borderline between family benefits and maternity benefits. This is
the case with
the maternity grant and the childbirth allowance which are triggered by the
birth of a child. These two benefits are
intended not to cover a maternity risk
but to provide in each case a universal lump-sum benefit. Because of the amount
involved,
the maternity grant resembles a replacement income without its
intrinsic characteristics: in particular, it is neither taxable nor
subject to
the payment of social security contributions. This universal benefit is
suspended up to:
− the amount of the cash maternity benefit paid by the health insurance fund and covering the maternity risk;
− the remuneration which the person concerned continues to receive under a statutory or contractual provision;
− unemployment benefit.
In some cases, the maternity
grant supplements the maternity benefits.
As for childbirth allowances,
they represent a public health incentive and are linked with the medical checks
prescribed. This benefit
does not cover the maternity risk either. It may be
cumulated with both the maternity grant and a cash benefit or remuneration paid
during the period of maternity leave.
Family allowances
(paragraphs 244 to 246 of the initial report)
111. Every child raised
continuously in Luxembourg and legally resident there has the right to family
allowances.
The condition that the child must have been raised
continuously in Luxembourg is satisfied in respect of the child by six
months’
uninterrupted actual residence after issue of provisional
permission to take up residence under the Alien Entry and Residence Act.
An
interruption of less than three months will not cause this condition to
fail.
It should be noted that persons subject to Luxembourg law are
entitled to family allowances for children with the status of family
member who
are living abroad, in accordance with the relevant provisions of the Community
regulations or other international social
security agreements concluded by
Luxembourg.
The allowance is payable from the month of birth up to the
age of 18. It continues to be paid up to the age of 27 if the beneficiary
is
following, as his main occupation, a course of study in Luxembourg or abroad,
provided he maintains his legal residence in Luxembourg.
The family
allowance, determined as a function of the family group to which the child
beneficiary belongs, is set at:
143.38 € (5,784 LUF) per month per child;
174.86 € (7,054 LUF) per month for each child of a group of two
children;
217.63 € (8,779 LUF) per month for each child of a group of
three children.
This amount is increased on average by 303.03 €
(12,224 LUF) per month for each additional child.
The amounts thus fixed
are increased monthly by:
14.63 € (590 LUF) for each child from the month in which it reaches the
age of six;
49.93 € (1,722 LUF) from the month in which it reaches the
age of twelve.
“Back-to-school” allowance (paragraph
248 of the initial report)
112. A “back-to-school” allowance
which varies with the age of the child and the family group is paid for children
over
six years of age. The children entitled to the allowance and the family
group are determined in accordance with the provisions relating
to family
allowances.
The “back-to-school” allowance
amounts:
1. for one child to:
− 102.50 € (4,135 LUF) if the child is more than six years old;
− 146.46 € (5,908 LUF) if the child is more than twelve years old;
2. for a group of two children to:
− 175.76 € (7,090 LUF) for each child over the age of six;
− 219.68 € (8,862 LUF) for each child over the age of twelve;
3. for a group of three children or more to:
− 248.98 € (10,044 LUF) for each child over the age of six;
− 292.91 € (11,816 LUF) for each child over the age of twelve.
The allowance is due when the child goes back to
school. It is paid out automatically for all children benefiting from family
allowances
in the month of August of the same year who meet the age
requirement.
Education allowance (paragraph 247 of the initial
report)
113. The education allowance is granted to any person
who:
(a) is domiciled in Luxembourg and actually resides
there;
(b) is raising in his/her home one or more children for whom the
applicant or his/her non-separated spouse is paid family
allowances;
(c) devotes him/herself mainly to bringing up the children in
the family home and does not carry on a professional activity or does
not
benefit from a replacement income. Moreover, the allowance is paid to any person
who carries on a professional activity and disposes,
together with the
non-separated spouse or the person with whom he or she lives in a domestic
community, of an income that does not
exceed, after deduction of any social
security contributions:
− three times the minimum social wage (3,870.63 € / 156.141 LUF) if he or she is raising one child;
− four times the same wage (5,160.85 € / 208,188 LUF) if he or she is raising two children;
- − five times the same wage (6,451.06 € / 260,235 LUF) if he or she is raising three or more children.
By way of exception to the
above, a person may claim half the education allowance, regardless of his/her
income, if that person:
− carries on a part-time professional activity, provided that the total time actually worked each week does not exceed half the normal working time applicable over the same period by virtue of the law or a collective labour agreement;
− devotes him/herself mainly to bringing up the children in the family home during a period at least equivalent to half the normal working time.
The allowance stops on the first day of the month
following that in which the child reaches the age of two. It is maintained if
the
person awarded the allowance is raising three or more children in the home,
as long as one of the children is less than four years
old, or is raising in the
home a disabled child less than four years old.
The education allowance
is fixed at 439.39 € (17,725 LUF) per month whatever the number of
children raised in the same home.
Childbirth allowance (paragraphs
242 and 243 of the initial report)
114. The birth of any viable child
gives entitlement to a childbirth allowance payable in three
instalments.
In order to receive the first instalment, a pregnant woman
must present herself during pregnancy for at least five medical checks
and one
dental check. To receive the second instalment, the mother must present herself
for a postnatal examination to check whether
her health has been affected by the
pregnancy. To receive the third instalment, the parent or any other person
having custody of
the child must present it for two postnatal checks and four
subsequent checks up to the age of two years.
The childbirth allowance is
1,576.53 € (63,597 LUF). It is paid on request in three instalments of
525.51 € (21,199 LUF)
each.
Maternity allowance (paragraph
240 of the initial report)
115. Any pregnant woman and any mother of a
newborn child having her legal domicile in Luxembourg at the time of entitlement
is eligible
for a maternity allowance.
The allowance is paid during a
maximum period of 16 weeks starting from the eighth week preceding
confinement.
The maternity grant is fixed at 175.76 € (7,090 LUF)
per week. If paid for the maximum of 16 weeks it amounts to 2,812.10 €
(113,440 LUF).
2. Benefits in kind
116. In crèches,
places are reserved for moderate-income families. Moreover, the prices of
agreement nurseries (with State
financial participation) are adjusted according
to the combined incomes of both parents. In special cases, the authorities make
places
purchased in private facilities available to moderate-income
families.
117. The tax code provides for deductions for child-minding
expenses.
3. Specific measures linked with labour
legislation
118. Under the Act of 12 February 1999, six months’
parental leave may be granted to any person who:
− raises in his/her home one or more children under 5 years of age for whom family allowances are paid;
− devotes him/herself mainly to bringing up the child or children and does not carry on any professional activity during the period of parental leave or engage in a part-time activity;
− is domiciled in the Grand Duchy of Luxembourg and resides there continuously or falls within the scope of Regulation 1408/71;
− is legally and continuously employed in a place of work situated on the territory of the Grand Duchy of Luxembourg at the time of birth or initiation of legal child adoption proceedings, either on his/her own account or for at least a year preceding the commencement of the parental leave with the same enterprise legally established in Luxembourg, under a contract of employment or apprenticeship with monthly working hours at least equal to half the normal working hours applicable within the enterprise by virtue of the law or a collective labour agreement (it should be noted that the Act provides for an exception for persons obliged to change employer for economic reasons for which they are not responsible);
− is affiliated for a continuous period of 12 months immediately preceding the commencement of the leave either as an employee, self-employed person or helping spouse or as an official, clerk or worker employed by the State, a commune, a public institution or the national railway company.
During parental leave the employment contract is
suspended (guarantee of re-employment).
By agreement with the employer,
the qualifying parent may take 12 months’ part-time parental leave. In
this case, his/her professional
activity must be reduced by at least half the
normal monthly working hours applicable to him/her under the law or a collective
labour
agreement.
Parental leave gives entitlement to a flat-rate cash
benefit fixed at 1,611.11 € (64,992 LUF) per month for full-time leave
and
805.55 € (32,496 LUF) per month for part-time leave.
119. The
labour legislation also provides for leave days for family events such as
marriages, births and deaths.
4. Family-related measures associated
with other branches of social security
120. In the area of pension
insurance, the State will pay pension insurance contributions for a maximum
period of 24 or 48 months (different conditions) for the parent
who following
the birth of a child has given up or reduced his or her professional activity
(baby years).
121. Leave for family reasons may be granted to an
insured person with a dependent child aged under 15 where because of serious
illness or accident or for some
other overriding reason the presence of one of
the parents is required.
The period of leave for family reasons may not
exceed two days per child per one parent. This period may be extended, with the
approval
of the social security physician, for children with an exceptionally
serious illness or deficiency, in particular, cancers in the
progressive phase
and illnesses involving hospitalization in an acute care ward for more than two
consecutive weeks.
The allowance granted during leave for family reasons
is calculated in the same way as the sickness cash benefit.
In some
collective labour agreements, this right is extended in time and to other
dependants.
5. Housing benefits
122. Housing benefits were
dealt with in paragraphs 234 to 235 of the initial report. The purpose of
housing benefits, which are regulated
by the amended Housing Benefit Act of
25 February 1979, is to encourage private individuals to buy their own home
by helping them
to save up the necessary down payment through various grants or
by reducing their monthly loan repayments through interest subsidies
and
rebates.
The capital grants available are:
− the construction subsidy;
− the purchase subsidy;
− the savings subsidy;
− the home-improvement grant;
− the supplementary grant for architect’s and engineer’s fees;
− the special adaptation grant for physically disabled persons.
Interest relief includes, in particular, all the
interest subsidies granted to households which have taken out a mortgage to
purchase
their own home. The amount of interest subsidy is determined by the
income and family situation of the beneficiary, whereas the interest
rebate,
which is viewed primarily from the family standpoint, is not linked with any
income requirement.
Moreover, the State is authorized, under the amended
Act of 1979, to guarantee, on behalf of a borrower unable to provide the lending
institution with adequate security of their own, the repayment of the principal,
interest and ancillary costs of mortgages granted
for a dwelling used as the
principal residence. Another measure by means of which the State hopes to
facilitate home-buying by large
families which cannot provide sufficient
security of their own to obtain the necessary mortgage from a financial
institution is the
slum loan.
6. State financial assistance for higher
education
123. Even though students in higher education do not come
within the scope of the Convention on the Rights of the Child, it should
be
noted that the State provides financial assistance for students following a
course of higher education.
The financial assistance for post-secondary
studies comprises:
− State financial assistance for higher education in the form of study grants;
− State financial assistance for higher education in the form of interest subsidies;
− university scholarships for students who are needy or have social problems.
On 22 June 200, a new Act on State financial
assistance for higher education was passed in the Chamber of Deputies. The
Grand-Ducal
Regulation of 5 October 2000 on State financial assistance was
published on 9 November 2000. The new Act is intended to solve certain
problems
and meet the expectations of students by making adjustments such as:
− redefining the term “higher education” more clearly and precisely;
− extending financial assistance to third-cycle studies;
− alleviating student indebtedness, in particular by means of incentive grants and by adapting the amount of registration costs taken into account in calculating the student’s budget;
− restricting “student tourism” by clearly defining the possibilities of switching courses;
− clarifying the role of the State in the event of repayment difficulties.
D. Separation from the parents (art. 9)
124. Separation from the parents was dealt with in paragraphs 277 to 306
of the initial report.
Paragraphs 278 to 298 (reception centres), 299 to
305 (foster homes) and 306 (socio-familial assistance services) need to be
partially
revised, as the Act of 8 September 1998 governing relations
between the State and organizations working in the social, family and
therapeutic fields (see paragraph 30) has
had a direct impact on the areas in
question.
1. Reception centres for children and young adults, with
accommodation
125. Pursuant to articles 1 and 2 of the Act of 8
September 1998, the Grand-Ducal Regulation of 16 April 1999 on the accreditation
of managers of reception centres for children and young adults, with
accommodation, subjects to governmental accreditation the pursuit
of any of the
following activities:
− traditional reception centres, i.e. a service or part of a service with an appropriate infrastructure, the purpose of which is to receive and house, in full-time accommodation, on a permanent or temporary basis, more than three children or young people at a time;
− short-stay “family problem” homes (FADEP), i.e. a service or part of a service with an appropriate infrastructure, the purpose of which is to take in and accommodate, by day and/or by night, in an emergency, more than three children or young adults at a time; the service presupposes emergency situations and intervenes at moments of family crisis; in principle, the period of placement is restricted to three months;
− special reception centres, i.e. a service with an appropriate infrastructure, the purpose of which is to take in and accommodate, by day and/or by night, as an alternative or supplement to the services mentioned above, more than three children or young adults at a time; the service provides educational, psychological, social, therapeutic and, occasionally, school support by providing specialized care adapted to the individual needs of the users;
− open-environment accommodation service, i.e. a service which aims to prepare children and young adults emerging from one of the above-mentioned institutions to lead an independent life and reintegrate into society through various supervised social housing schemes;
− socio-vocational integration centres, i.e. a service designed to supplement the above-mentioned services by taking in more than three children or young adults at a time, with a staff and an infrastructure that enable it to offer users practical instruction within the context of specific job placement programmes; the service enables young people to learn to adapt to the tempo of the workplace and acquire a certain basic practical knowledge;
− open-environment accompaniment centres, i.e. a service organized for those leaving the above-mentioned services which offers, as an alternative or supplement to placement, psycho-pedagogical and social accompaniment for children, young adults and their circle by providing social training, advice, family mediation, aid, assistance, counselling and motivation.
126. The task of the reception centres is to
provide their inmates with harmonious development within a framework of
socialization
and social integration and participation.
127. It should be
recalled that most reception centres are run by private bodies (non-profit
associations or foundations). Private
reception centres supply most of the
available places and their services are subsidized under agreements with the
Ministry of the
Family, Social Solidarity and Youth. These agreements assure the
manager of a substantial contribution from public funds and confer
on the public
authorities the rights of inspection and cooperation.
In 2000, the State
had agreements with 13 organizations managing 17 reception centres or
institutions. The private centres had a total
capacity of more than 500 places.
The State children’s homes manage 8 centres with a total capacity of more
than 80 places.
These operate on the same pedagogical and therapeutic principles
as the private centres.
About 20% of the expenditure of the reception
centres is covered by their so-called “own revenue”: various
allowances,
contributions from communes (refuges), parents and the inmates
themselves. The balance of the operating expenses is made up by the
ministry
responsible.
128. In 2000, the National Placements Arbitration Commission
(CNA)) (paragraph 281 of the initial report) received 132 applications
and was
able to place 95 children in private or public centres. Some 40 applications
were withdrawn because other solutions had been
found (generally, the child
remained with or was returned to its family, provided with educational
assistance, was directed toward
other care facilities or was placed in a foster
home). In 2000, the actual total number of placements was 102 (95 from the
waiting
list and 7 without passing through the waiting list).
Requests
for placement in private and public centres come mostly but not exclusively from
the courts (56% of the 102 placements).
In 2000, some 5% of applications were
lodged directly by the family of origin.
Out of the 95 placements from
the waiting list in 2000, 38 were voluntary and 57 were ordered by the courts.
Out of the 102 actual
placements, 56 were children aged under 12 and 46 young
people between the ages of 12 and 18 at the time of placement.
Over
recent decades the average duration of placements in reception centres has
declined. For example, out of 123 children and young
people who left the centres
in 2000, 52 had spent less than two years there and 39 between 2 and 5 years.
Eleven of the children
who came out in 2000 had been in the centre for more than
10 years. The placement authorities and the centre’s managers and
teachers
generally view placement as more of an ad hoc measure to facilitate a
child’s reintegration into his original environment.
As the
duration of placements in reception centres continues to decline, the
supervision of former inmates is assuming ever greater
importance. In fact, the
return of the child to its original environment creates problems of adaptation
within the family. To avoid
failures of reintegration, the reception centres are
often having to provide long-term supervision, without always having the
necessary
staff at their disposal.
129. The open-environment
accommodation services such as the boarding houses for young people and
supervised accommodation that exist
in most reception centres were established
in order to provide young people who have grown up in group surroundings with a
transitional
phase to enable them to learn to live independently and
re-establish a certain personal equilibrium.
130. Thirty-three out of the
102 children admitted to the reception centres came from short-stay
family-problem homes (FADEP). These
homes, which provide 40 or so places, are
special units of the reception centres. They operate as flexible groups, open 24
hours
a day, and are intended in particular for short-term placements (4.64
months on average in 2000):
− “family problem” placements (parents seriously ill, hospitalization, urgent trips abroad, etc.);
− “emergency” placements (family crisis, suspicion of maltreatment or abuse, etc.);
− “counselling” placements (to enable professionals to assess and clarify the situation of the child and its family and prepare proposals for more permanent measures).
The socio-pedagogical work carried
out in the short-stay family-problem homes requires particular flexibility on
the part of the teaching
teams. Constantly confronted with placement situations
which cannot be foreseen and for which preparations cannot be made, the teachers
are required to devise creative short-term responses and to involve the largest
possible number of potential partners (parents, teachers,
various
professionals). Intensive work with the family can often resolve a crisis. For
example, some of the inmates have been allowed
to return home provided that they
and/or their family agree to a social supervision measure.
The experience
of recent years shows that admission to a short-stay home constitutes a
favourable move even if it is impossible for
the child to return quickly to its
family; in fact, a stay in the FADEP prepares the child for transfer to a
reception centre under
more favourable conditions both for the child itself and
its parents and the “family” unit’s teachers; such stays
can
thus make a big contribution to reducing the risks of failure of the placement
measure.
131. On 31 December 2000, according to information provided by
the Ministry of the Family, Social Solidarity and Youth, 404 children
and
adolescents were in full-time placement outside the family home in various
institutions:
− 305 in private or agreement reception centres;
− 43 in short-stay family-problem homes;
− 56 in State children’s homes.
2. Foster
care
132. With regard to foster care, reference should be made to
paragraphs 299 to 305 of the initial report. As at 31 December 2000,
Luxembourg
had 222 children placed with foster families.
3. Socio-familial
assistance services
133. For the sake of completeness, it should be
recalled that in this chapter (paragraph 306) the initial report also described
the
various socio-familial assistance services such as, in particular,
assistance with accommodation, socio-vocational integration and
counselling
measures, the battle against drug addiction, and daytime shelter and meals.
E. Family reunification (art. 10)
134. In principle, paragraphs 251 to 257 of the initial report still
apply.
F. Illicit transfer and non-return (art. 11)
135. The legislative measures that Luxembourg has taken in this respect
are of two kinds.
136. On the one hand, the provisions of the Criminal
Code make it an offence to kidnap a child. Reference should be made to paragraph
271 (Sale, trafficking and abduction of children) of this report and
paragraph 748 of Luxembourg’s initial report.
137. On the other
hand, Luxembourg having become party to several international treaties relating
to this issue, the Act of 10 August
1992 introduced into the Code of Civil
Procedure special provisions (1108-1116) which apply to international judicial
assistance
in respect of the right to custody of children and visiting
rights.
Thus, by Act of 16 May 1986, Luxembourg approved the Convention
on Civil Aspects of International Child Abduction, done at The Hague
on 25
October 1980. By Act of 28 February 1983, it approved the European Convention on
Recognition and Enforcement of Decisions concerning
Custody of Children and on
Restoration of Custody of Children, signed at Luxembourg on 20 May
1980.
The Grand Duchy of Luxembourg and Belgium had an arrangement for
repatriating minor children removed from parental authority or guardianship
which dated back to 19 July 1933. More recently, however, bilateral treaties
have been concluded between the Government of the Grand
Duchy of Luxembourg and
the Government of the French Republic, on the one hand, and between the
Government of the Grand Duchy of
Luxembourg and the Government of the Kingdom of
Belgium, on the other. These two agreements, concluded on 4 April 1987 and
relating
to judicial assistance in cases of custody and visiting rights, were
approved by Act of 10 August 1992. A similar agreement between
the Grand Duchy
of Luxembourg and the Portuguese Republic was concluded on 12 June 1992 and
approved by Act of 18 March 1995.
For the purposes of all these
agreements, the Procurator General is the competent central authority in
Luxembourg. The leading role
of the Government Procurator’s Office is
confirmed by article 1109 of the new Code of Civil Procedure which authorizes
the
State procurator to institute any proceedings relating to the implementation
of these agreements, without prejudice to the right
of any interested party to
bring an action, at any point in the proceedings, before the competent court, or
the right of the central
authority to instruct counsel.
` It is the
president of the district court in whose jurisdiction the child was found who is
competent to rule, under the urgent procedure,
on any action for immediate
return.
138. There are no statistics available in Luxembourg concerning
cases of abduction or illicit transfer of children. However, these
cases appear
to be quite infrequent (3-4 illicit transfers a year and 2-3 cases of non-return
following the exercise of visiting
rights). As these situations mainly arise in
the context of a family dispute, and especially in connection with a divorce, it
would
seem difficult to prevent them. In general, the Government
Procurator’s Office first tries to settle the problem amicably through
mediation with a view to securing the voluntary return of the child. Failing
agreement, it proceeds in accordance with articles 1111
ff. of the new Code of
Civil Procedure.
G. Recovery of maintenance for the child (art. 27, para. 4)
139. This matter is regulated by the Act of 26 July 1980 on the
payment and recovery of maintenance by the National Solidarity Fund and by the
Grand-Ducal
Regulation of 2 December 1983 setting out the modalities for the
application of the Act of 26 July 1980. Paragraphs 258 to 259 of
the initial
report provide further information.
On 31 December 2000, there were 205
beneficiaries.
H. Children deprived of their family environment (art. 20)
140. This chapter needs to be reviewed insofar as the new Act of 8
September 1998 governing relations between the State and organizations
working
in the social, family and therapeutic fields applies to child reception
centres.
Thus, reference should be made to paragraphs 125 to 131
(Reception centres for children and young adults, with accommodation) and
132 to 133 (Foster care), as well as to paragraphs 185 to 187 (Day
care facilities), 188 to 191 (Services offering care by
child-minders) and 192 to 196 (Academic and socio-familial boarding
homes) of this report.
I. Adoption (art. 21)
141. Adoption was dealt with in paragraphs 307 to 314 of the initial
report.
142. Under the Act of 31 January 1998 on the Accreditation of
Adoption Services and the Definition of their Obligations only
pre-accredited public or private corporations may serve as an intermediary in
the adoption of a minor. Adoption applications
by future adoptive parents must
be lodged with these accredited organizations.
All adoption organizations
must equip themselves with qualified staff and certify the preparation of
candidates. According to the
Act, these services must, among other things,
“ensure that the persons and institutions whose consent is required for
the adoption have been provided with all the necessary advice
and are properly
informed about the implications of their consent, in particular about the
continuation or termination, as a result
of an adoption, of the legal links
between the child and its family of origin”.
When a country of
origin requires the files on prospective adoptive parents to be prepared or
transmitted by the competent national
authority or by the duly accredited
services, the Ministry of the Family, Social Solidarity and Youth acts as that
authority.
143. Moreover, the Luxembourg Government has just prepared a
bill ratifying the Hague Convention of 29 May 1993 on Protection of Children
and Cooperation in Respect of Intercountry Adoption. The indispensable
consultations on the preliminary draft at national level have just begun and the
bill could be submitted to the
Chamber of Deputies in the course of
2002.[6]
144. The adoption
activities of the Ministry of the Family, Social Solidarity and Youth can be set
out in terms of the list of duties
for which it is responsible under
international standards such as those described in the Hague Convention on
intercountry adoption:
− co-operate with the authorities of the countries of origin and keep them generally informed about the legislation, procedures and intermediaries in the host country;
− take measures to prevent improper financial or other gain and deter practices contrary to the objects of adoption;
− collect, preserve and exchange information about the situation of the child and the prospective adoptive parents;
− facilitate, follow and expedite proceedings;
− promote the development of adoption counselling and post-adoption services;
− exchange general evaluation reports with the countries of origin;
− reply to requests for information about particular situations;
− accredit adoption services.
As the aforementioned
Hague Convention provides, some of the duties listed may be delegated to
accredited services
These services gather all the information needed to
assess the aptitude of the applicants. They are required to consult a team of
professionals in the fields of social sciences, psychology, medicine and law.
This information is sent to the country of origin of
the child which, in its
turn, examines it and proposes a child for adoption. At the same time, the
service prepares the prospective
adoptive parents.
145. In autumn of
2000, the Ministry of the Family arranged a meeting of the European central
authorities to brief the special commission
of the Hague Conference on Private
International Law on the functioning of the 1993 Hague Convention. This meeting
was held from
28 November to 1 December 2000.
J. Periodic review of placement (art. 25)
146. According to article 37 of the 1992 Protection of Young People Act,
“the measures ordered by the youth court or judge (...) may be revoked
or amended, in the minor's best interests, at any time either
on the initiative
of the court or judge or at the request of the Public Prosecutor's Office, the
minor, his parents, guardian or
other persons having custody of him, or on the
report of a probation officer.
However, when the request is made
by the minor, his parents, guardian or other persons having custody of him, it
may not be submitted
until one year has elapsed from the date on which the
decision ordering the measure became final. If the request is rejected, it
may
not be resubmitted until one year has elapsed from the date on which the
decision to reject became final. In any event, these
measures are subject to
review every three years if they have not meanwhile ceased to have effect
...”.
K. Abandonment or neglect (art. 19), including physical and psychological recovery and social reintegration (art. 39)
147. Protection from maltreatment (article 19) was dealt with in
paragraphs 315 to 360 and physical and psychological recovery and
social
reintegration measures in paragraphs 669 to 694 of the initial report.
148. It should be recalled that the Luxembourg
legislature has adopted two types of legislative measure to combat all forms of
violence,
brutality or neglect with respect to children: measures addressing
adults (in particular adults who have authority over children)
and custody,
education and protection measures addressing children.
a. Legislation
and measures addressing adults
149. The principal innovation is the
new Act of 31 May 1999 strengthening the measures against trafficking in human
beings and the
sexual exploitation of children and amending the Criminal
Code.
150. The following provisions, which formed the subject of
paragraphs 316 to 330 of the initial report, should also be recalled:
− article 401 bis of the Criminal Code on acts of violence and privations directed against children;
− article 391 bis of the Criminal Code on abandonment by family;
− articles 372 to 375 of the Criminal Code on indecent assault and rape;
− article 410-1 of the Criminal Code on culpable non-intervention;
− article 371-1 of the Criminal Code on kidnapping and non-surrender of a child;
− articles 387-1 to 387-8 of the Civil Code Act of 18 April 1984) on delegation of parental authority;
− the Protection of Young People Act of 10 August 1992 and more particularly article 11 on transfer of parental authority;
− article 2 of the Act of 18 April 1984 on trusteeship of social benefits;
− articles 387-9 ff. of the Civil Code (Act of 18 April 1984) on suspension of parental authority.
151. This subject was dealt with in paragraphs 331
to 341 of the initial report. As the 1992 amended Protection of Young People Act
has not been amended since, reference should be made to that report.
152. Paragraphs 342 to
358 of the initial report described the main competent services and bodies and
reference should be made to
those paragraphs. However, the following comments
also need to be made.
153. The situation as described in paragraph 342 of
the initial report is that which existed on 1 April 2001, the date of entry into
force of the agreement of 19 January 2001 on the sharing of social activities
between the Luxembourg League for Preventive and Medico-social
Action (League)
and the Luxembourg Red Cross (Red Cross).
Since this agreement, social
activities have been shared out between the two institutions as follows:
League |
Red Cross |
- Health activities
- Specialized social services, i.e.:
-- regional social action service
-- service to combat overindebtedness
- Social accompaniment service
- Hospital social service
|
- Community social service
|
The community social service and the social accompaniment service are for all
residents of Luxembourg. The two services play a primary
role in preventing,
identifying and treating all forms of maltreatment and neglect of
children.
154. The Red Cross community social service is a
general-purpose front-line social service which:
− operates throughout Luxembourg;
− provides psycho-social and material assistance for the entire population with no age
limit;
− provides the initial response in social emergencies.
The target population of the community social
service includes:
− social assistance applicants;
− anyone who does not fit within one of the categories for which the League is responsible;
− clients requiring occasional ad hoc assistance;
− individuals and families in emergency situations;
− “rapid assessments” of emergency situations for the long-term care insurance “assessment and guidance unit”;
− social surveys of clients at the request of social offices and ministries.
The community social service is divided up into
geographical sectors based on commune boundaries.
The League’s
social accompaniment service
155. The social accompaniment service is
a second-line social service whose general mission is to help ensure that those
referred
to it, in particular by the public services, have access to services,
institutions and benefits under Luxembourg’s existing
social legislation
and protection system.
The social assistance is designed to be long-term;
its aim is to achieve a sustained improvement in the client’s social
situation
although in some cases it may merely stabilize that situation. The
social accompaniment service backs up and supplements the activities
of the
administrations and services of the Ministries of the Family and Social
Solidarity, Justice, National Education, Housing,
Social Security and Health,
the local authorities and social offices by specifically contributing the
methods and techniques of social
work.
The service takes on individuals
and even families whose needs and social problems call for long-term social
assistance such as, for
example:
− recipients of the insertion allowance;
− persons addicted to psychotropic substances;
− persons suffering from psychological disorders;
− persons who are physically and/or psychologically dependent;
− persons placed in curatorship or guardianship;
− children and young people with family problems;
− parents overwhelmed by responsibility for their children;
− clients/households with long-term financial problems requiring budgetary advice or budget management, voluntary or otherwise;
− anyone else in difficulty.
The
Kanner-Jugendtelefon (KAJUTEL)
156. KAJUTEL (hotline for children and
young people) continues to offer children and adolescents, over the telephone
(number to call:
12345), aid and support with problems of various kinds under
the seal of anonymity. In 2000, the service began offering a wider range
of
means of access. Thus, it is now possible to obtain individual advice
anonymously via e-mail, web site and homepage. In 2000,
there were 641 telephone
contacts.
The special intervention unit “Info Viol - Sexual
Abuse”
157. In 1999, at the initiative of the Ministry of the
Family, Social Solidarity and Youth, a unique telephone number was assigned
to
the special intervention unit “Info Viol - Sexual Abuse” (number to
call: 49 58 54) which coordinates intervention
among the various partners who
make up the unit.
Assistance can be provided for professionals who
suspecting the sexual abuse of a child seek advice on how to proceed. The
intervention
unit consists of professionals employed by various organizations
whose work involves the prevention of sexual abuse and the treatment,
ambulatory
or in permanent treatment centres, of victims and their family.
A. Disabled children (art. 23)
158. Actions on behalf of disabled children were dealt with in paragraphs
426 to 458 of the initial report.
159. Up until August 1999, the date of
the last government reshuffle, coordination of policy in favour of disabled
persons was the
responsibility of the Minister for the Disabled and Accident
Victims. In accordance with the principle of “mainstreaming”
or
indeed normalization which governs disability policy, in 1999 ministerial policy
for disabled persons was assigned to the Minister
for the Family, Social
Solidarity and Youth.
160. The Act of 19 June 1998 introducing
long-term care insurance includes disabled persons, both children and
adults, within its scope. Long-term care insurance is a new branch of social
security
which entered into force on 1 January 1999.
Long-term care
insurance covers one of life’s risks, namely, dependence on a third party
for the organization of everyday life.
It is a form of compulsory social
insurance which confers on the person protected an unconditional right. The
causes of dependency
vary and may be physical, psychological or
mental.
The underlying deficiencies may involve the motor organs (e.g.
amputation), the sensory organs (e.g. blindness), the mental capacities
(e.g.
mental retardation) or functional disorders of the internal organs.
Every
applicant is personally assessed by a multidisciplinary team (assessment and
guidance unit, a public service under the authority
of the Minister for Social
Security attached to the General Social Security Inspectorate). This team
verifies the reasons for dependency
and draws up an individual treatment plan.
To qualify for long-term care insurance benefits the person concerned must be
affiliated
to a Luxembourg health insurance fund and must need at least 3.5
hours a week of care and assistance with the essential functions
of life. The
essential functions of life are hygiene (washing, shaving, etc.), eating and
mobility. Moreover, the benefits granted
take into account domestic tasks,
support measures (supervision, outings), the products needed to provide care and
assistance, any
necessary equipment, adaptation of the home, and measures on
behalf of informal carers (payment of a pension contribution, replacement
of the
carer for three weeks every year).
The benefits may be provided in cash
or in kind (professional services). Where the dependent person lives at home,
the assistance
taken into account may extend to a maximum of 40.5 hours a week.
To prevent possible abuse, cash benefits are calculated on the basis
of a
maximum of only 10.5 hours a week. The beneficiary is allowed to combine the
benefits in cash and in kind. Every year, the monetary
value of an hour of care
and assistance is negotiated between the Union of Health Insurance Funds and the
Confederation of Assistance
and Care Providers. The costs are covered by the
compulsory contributions of persons with an income (1% of the effective income)
and by annual budget appropriations. The principle of derivative rights is
applied.
161. The Ministry of the Family, Social Solidarity and Youth
intends to promote the coordination of the process of individual treatment
of
the disabled person in accordance with the recommendations of the plan of action
on behalf of disabled persons adopted in 1997.
To this end, a working group has
been instructed to develop a project involving the establishment of a single
case file for the disabled
person and the family. The group’s solution
will be implemented in the form of a two-year pilot project aimed at the
disabled
population up to the age of 6.
162. In implementation of
articles 1 and 2 of the Act of 8 September 1998 governing relations between
the State and organizations working in the social, familial and therapeutic
fields (see paragraph 30), a Grand-Ducal Regulation on the governmental
accreditation of managers of services for disabled persons has been
brought into
force. This Regulation is intended to lay down basic and quality standards for
all the services for disabled persons
through accreditation to be granted by the
Minister for the Family, Social Solidarity and Youth.
It should be noted
that, where disability is concerned, the associations offer, in principle,
several types of activities or services
to a well-defined population. These
activities are grouped according to the purpose of the exercise, namely,
accommodation, day care,
training, employment, communication, early assistance
and home help.
The types of services covered by the Regulation are:
- Accommodation service offering accommodation and/or support for more than three disabled persons in an institutional, semi-institutional or family environment. The aim is to help users manage their daily activities by providing pedagogical, psychological, social and therapeutic accompaniment adapted to their individual needs.
- Day care services offering day care for more than three seriously or multiply disabled persons. The aim is to provide relief for families looking after disabled relatives at home. The services provided by the management vary according to the individual needs of the user.
- Training services offering training for more than three disabled adolescents and/or adults over the age of compulsory education. The aim is to provide them with knowledge of a general and/or vocational nature thereby preparing them to lead an active life in the future.
- Employment services offering occupational work for educational and/or therapeutic purposes to more than three persons who because of their disability are unable to keep up with the tempo of the workplace in an ordinary or sheltered environment. The aim is to stimulate the capabilities and promote the personal development of users through a useful activity.
- Communication services offering information, advisory, organizational and get-together activities for disabled persons and their relatives. The aim is to prevent isolation and social exclusion.
- Early assistance services offering early treatment for young children with special needs, together with support for the family concerned. The aim is to limit the effects of a deficiency or even to compensate for retarded development through functional rehabilitation, pedagogical stimulation, socio-educational guidance and family accompaniment.
- Home help services offering care and/or material and psychological
assistance for disabled persons within the family environment, together with
support
for their relatives. The aim is to make it easier for a disabled person
to be looked after at home.
Under the terms of article 2, the
above-mentioned Regulation does not apply to sheltered workshops or
differentiated education centres,
which are covered by specific
legislation.
163. The Accessibility of Public Premises Act of 29 March
2001 is intended to ensure access to public premises for all citizens, and
in particular those with permanently or temporarily reduced
mobility, by
introducing measures to adapt and organize the physical and social environment.
The measures envisaged concern new construction
and major renovations of public
premises belonging to the State, communes and public institutions. The
accessibility requirements
also apply to establishments intended for social,
familial and therapeutic purposes that receive financial assistance from the
State
through the special fund for financing socio-familial
infrastructure.
164. Reorganized by the Ministerial Regulation of 16
December 1998, the Disabled Persons Council is an advisory body reporting to
the
Minister for the Family, Social Solidarity and Youth. The Council, which
consists mainly of representatives of associations of/for
disabled persons, of
whom at least half are persons directly concerned, i.e. persons disabled by some
deficiency or the parents of
those who cannot represent themselves, is
responsible, among other things, for assisting and advising the Minister on the
coordination
of policy on behalf of disabled persons, for bringing together for
this purpose the partners involved, for giving an opinion on any
bill or draft
regulation concerning disability and for examining any question submitted to it,
as well as any issue which in its
view merits consideration.
165. As
far as the general principles are concerned, reference should be made to
paragraphs 426 to 428 of the initial report.
166. In accordance with the
coalition programme, the Government is preparing to maintain coordination in the
area of disability and
follow a consistent and global policy on behalf of
disabled persons.
167. At the time of preparation of this report, the
non-profit organization Info-Handicap had a list of 41 member associations in
the field of disability. A new “guide to disability” appeared in
February 2001. Moreover, a “guide to standards”
on environmental
accessibility was published and circulated at the end of 1999. This guide should
provide an answer to questions
relating to the accessibility of the built
environment, transport and tourism.
168. Self-assertion courses for women
and girls with a disability have gone beyond the stage of the project initiated
by the European
DAPHNE programme. In 2000, two courses targeted women and girls
with a mental disability.
169. Regarding the efforts made in connection
with the education of disabled children, reference should be made to Chapter VII
and
more particularly the paragraphs concerning the educational integration of
disabled children and coeducation.
170. For many years the agreement day
care facilities for children (see paragraphs 185 to 187 of this report) have
been working on
the social integration of children requiring additional
attention either because of a physical or mental problem or because of retarded
development.
As at 1 November 2000, the agreement day care facilities
were looking after 58 children requiring additional attention because of
major
disabilities (spina bifida, trisomy 21, Rubinstein’s syndrome,
polytraumatism, debility, speech disorders, epilepsy,
microcephaly, bilateral
schizencephaly, post-tumoral pedular paralysis) or less serious disorders
(general or cognitive retardation,
behavioural disorders, auditory deficiencies,
hyperactivity).
The day care centres have access to funds that enable
them to recruit additional staff and pay for the services of outside
consultants.
The results achieved over the years by the teaching teams of
the agreement day care facilities, working in close collaboration with
the early
rehabilitation services approved by the Ministry of the Family, Social
Solidarity and Youth (Orthopedagogical Early Intervention
Service) and the
Ministry of Health (“Hëllef fir de Puppelchen” Service, Early
Rehabilitation Service), show clearly
that if the integration of children
requiring additional attention is based on the collaboration of all the parties
concerned, the
facility can provide valuable assistance for both the child and
its parents.
B. Health and health care services (art. 24)
171. The WHO defines health as a state of complete physical, mental and
social well-being. For a person to stay in good health his
fundamental needs
must be satisfied and he must have the ability to adapt to a constantly changing
environment. To achieve the objective
of health and well-being, special efforts
have been made in the areas of promotion, prevention and health care.
The
promotion of health, the prevention and treatment of disease and the creation of
an environment that favours the comprehensive
development of the child are all
priorities.
Special emphasis has been placed on an interdisciplinary and
multi-sectorial approach.
Survey of immunization coverage in the Grand Duchy of Luxembourg
172. This survey carried out from September to
October 1996, in collaboration with the Public Health School of Brussels Free
University,
involved a sample of 600 children aged from 26 to 30 months. A
questionnaire was drawn up for collecting information in the field.
The survey
was conducted by the staff of the multipurpose medico-social and social service
of the Luxembourg League for Preventive
and Medico-Social Action and the
Luxembourg Red Cross. The participation rate was 92.4%. This coverage is one of
the highest in Europe.
The results all show that the immunization of children is
a well accepted prevention technique. The basic immunization of children
has
reached almost 90% for the various vaccines, despite changes in the immunization
schedule as a result of the introduction of
new vaccines.
The
availability of free vaccines has meant that there are virtually no social
inequalities as far as preventive immunization is concerned.
Ioduria surveys
173. In 1998 and 1999, ioduria evaluation
studies were carried out in the schools on a representative sample of pupils in
the seventh
year of classical secondary and technical secondary education. These
studies confirmed a moderate iodine intake deficiency in the
Luxembourg
population.
A third similar study, carried out in April and May 2001, is
being evaluated. It will throw light on the trend in iodine coverage,
in
particular following the measures taken, such as for example the use of iodized
salt for baking bread or preparing charcuterie.
Study of juvenile mortality in Luxembourg from 1967 to 1997
174. The aim of this study is to analyze the
main causes of mortality in young people and the evolution of these causes over
time.
The results of this study have not yet been published.
Study of young people’s well-being
175. This study was carried out jointly with
the Ministry of National Education, Vocational Training and Sport on a
representative
sample of 9,000 pupils in classical and technical secondary
education, as well as on about 800 primary school pupils, which amounts
to about
28% of the entire school population. The aim of the study was to obtain
information about young people’s state of
health. It was designed in
accordance with the protocol of the WHO’s HBSC (Health Behaviour of
School-aged Children) study.
so as to make it possible to compare the results
with those of other participating countries. The evaluation of the results will
be published toward the end of 2001.
2. Health promotion
activities
176. These activities are conducted by the Preventive
Medicine and School Medicine Divisions.
177. Regular actions in
various areas of health promotion have been undertaken in collaboration with the
Ministry of National Education, Vocational Training
and Sport (e.g. within the
framework of the “schools for health promotion”), as well as with
the Ministry of the Family,
Social Solidarity and Youth and the National Youth
Service.
178. First national prize for health promotion 2000
The
interdisciplinary jury of the first national prize for health promotion awarded
prizes to several projects involving children
and young people:
− initiatives to prevent and combat drug addiction (Abrigado project);
− development of the personality and promotion of a favourable environment in pre-school education;
− improved communications and well-being of all the partners in a secondary education establishment;
− development of life skills, development possibilities in a rehabilitative environment.
179. The Preventive Medicine
Division has developed multiple activities in relation to:
− the prevention of alcohol abuse among young people;
− the anti-smoking campaign;
− the anti-drugs campaign;
− the AIDS prevention campaign;
− the promotion of healthy living (breastfeeding, healthy diet, physical exercise);
− the “Baby-Friendly Hospital”.
180. The
pro-immunization campaign
Further to the recommendations of the
Hygiene Council and the appearance of new vaccines, the recommended immunization
schedule has
undergone successive reviews. The quality, effectiveness and safety
of the available vaccines have been improved.
The recommended vaccines
include vaccines against diphtheria, tetanus, pertussis, poliomyelitis, measles,
rubella and mumps. Two immunizations
have recently been introduced into the
immunization programme:
− Immunization against hepatitis B is for infants from the age of one month, as well as for adolescents at age 12. Immunization against hepatitis B is free of charge up to the age of 18.
− Immunization against Haemophilus influenzae type b is combined with diphtheria, tetanus, acellular pertussis and injectable polio vaccines.
Since June 2001, the Hygiene Council has been
recommending the immunization of children and adolescents aged from 1 to 19
against
group C meningococcus.
3. Health
surveillance
181. School medicine measures and examinations have been
carried out in accordance with the legislation (Act of 2 December 1987 and
Grand-Ducal Regulations of 21 December 1990 and 20 November 1993). They have
been aimed at all enrolled pupils, starting from the
first year of pre-school
education. Special attention has been paid to improving the quality of the
services provided.
182. In order to create an educational climate
that favours the development of well-being and motivation with a view to
promoting scholastic success and combating all forms of
violence and other
suffering the Pedagogical and Technological Research and Innovation Coordination
Service (SCRIPT) of the Ministry
of National Education, Vocational Training and
Sport coordinates activities at the five levels of action identified by the
Ottawa
Charter, namely:
− the individual: to develop psycho-social and cognitive skills;
− the group: to promote social responsibilities at class, teacher training college and parental levels (“everyday citizenship”);
− the organization/institution: to view schools as learning organizations (school development, school profile);
− the environment: to develop the school in and with its environment (networking with partners);
− society/politics: to promote the importance of young people’s well-being and health.
C. Social security and child care services and
facilities
(arts. 26 and 18, para. 3)
1. Social security
183. Luxembourg social security covers
the traditional aspects, i.e. sickness, accident and old age, as well as
long-term care. In
this connection, reference should be made to paragraphs 201
to 215 of the initial report and, as regards long-term care insurance,
to
paragraph 160 of this report.
2. Child care services and facilities
(art. 18, para. 3)
184. The child care services and facilities are
described in Chapter 6.5 of the initial report “Educational child care
services” (paragraphs 260 to 276).
(a) Day care
facilities:
185. Paragraphs 261 to 267 of the initial report (Day
centres and nurseries) need supplementing.
186. The Act of 8
September 1998 governing relations between the State and organizations working
in the social, family and therapeutic fields (see paragraph 30) subjects to
governmental accreditation the reception and accommodation of more than three
persons at a time by
day and/or night insofar as these activities are undertaken
or carried on other than casually and for consideration.
Hence the
daytime minding of more than three children at a time, as mainly provided by day
centres and nurseries, falls within the
scope of this Act.
An
implementing regulation - Grand-Ducal Regulation of 20 December 2001
implementing articles 1 and 2 of the Act of 8 September 1998
governing relations
between the State and organizations working in the social, family and
therapeutic fields as regards the governmental
accreditation of managers of day
care facilities for children, without accommodation - lays down the requirements
for carrying on
such an activity.
The regulation applies more
particularly to the following activities:
- Crèches, i.e. any service that receives and takes educational responsibility, without providing accommodation, for children under four years of age or not yet attending school, within a professional infrastructure.
- Day centres for children, i.e. any service that receives and takes educational responsibility, without providing accommodation, for children in early, pre-school or primary education, within a professional infrastructure, outside school hours or during school holidays.
- School meals service, i.e. any service that receives, feeds and supervises children of school age at lunchtime.
- Homework aid service, i.e. any non-school service that receives and supervises, without providing accommodation, primary school pupils outside school hours with a view to offering them recreational activities and assistance with their homework.
- Nursery, i.e. any service that spontaneously receives and
supervises, without accommodation, children under the age of 8, within a
professional
infrastructure, for less than 16 hours per week per
child.
187. On 31 December 2000, there were 185 day care facilities for
children registered with the Ministry of the Family, Social Solidarity
and
Youth. It should be noted that a guidance service “info
crèches” which offers general information on agreement
day care
facilities, their opening hours, parents’ scale of contributions, etc. is
available to parents.
In 2000, 1,798 children were enrolled in agreement
day care facilities for a total of 1,513 agreement places. These enrolments can
be broken down as follows: 1,361 children or 75.7% enrolled full-time, 330
children or 18.35% enrolled for from 5 to 8 half-days
per week and 107 children
or 5.95% enrolled for less than 5 half-days per week. Note that 27.3% of these
children came from single-parent
families and that in 42.5% of cases both
parents worked full-time. As at 1 November 2000, the agreement day care
facilities were
taking in 58 children with special needs suffering from major
disabilities (trisomy 21, debility, epilepsy, etc.) or less severe
disorders
(general or cognitive retardation, hyperactivity, etc.).
In 2000, 11
nurseries with 170 places signed agreements with the Ministry of the Family,
Social Solidarity and Youth.
(b) Services offering care by
child-minders
188. These services were dealt with in paragraphs 268
and 269 of the initial report.
189. Two Grand-Ducal Regulations on this
subject have been adopted since the initial report was prepared, namely:
− Grand-Ducal Regulation of 14 January 2000 establishing the conditions for the accreditation of family placement assistance services provided for by the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields;
− Grand-Ducal Regulation of 29 March 2001 establishing the conditions and formalities for the accreditation of the activity of receiving and accommodating, by day and/or by night, more than three and fewer than eight minors at a time, in the home of the person carrying on the activity, provided for by the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields.
190. At the end of 2000, 308 children were being
looked after by individuals (child-minders, babysitters,
Tagesmütter) for periods ranging from 4 to 12 hours a
day.
191. The allowance paid by the “family placement”
services is € 7.90 (reimbursement of overheads) and €13.16
(daily
remuneration).
(c) Academic and socio-familial boarding
schools
192. Paragraphs 270 to 276 of the initial report concerning
academic and socio-familial boarding schools need to be
supplemented.
193. In 2000, the State is directly managing 3 academic
boarding schools and has signed agreements in connection with 9 socio-familial
boarding schools. The socio-familial boarding schools have a total capacity of
523 full boarding places and 690 semi-boarding places.
In the case of full
boarding, the parental contribution covers only a small part of the operating
expenses (7 to 30%).
194. It should be noted that the Act of 29 April
1999 authorized the Government to build and equip a socio-familial boarding
school
at Diekirch. This modern boarding school will replace the present State
school which has been in existence since 1830.
195. Moreover, a special
“boarding school” working group, composed of representatives of the
Ministry of the Family, Social
Solidarity and Youth and the managers of various
agreement socio-familial boarding schools, which has done the preparatory work
on
a new agreement, has also considered the various effects of the Act of 8
September 1998 governing relations between the State and
organizations working
in the social, familial and therapeutic fields.
196. For information, it
should be pointed out that the management committee mentioned in paragraph 276
has been replaced by a cooperation
platform (ASFT Act).
D. Standard of living (art. 27, paras. 1 to 3)
197. Aid and social welfare were dealt with in paragraphs 459 to 486 of
the initial report.
198. Two new laws have just been passed in the areas
of anti-poverty measures and social exclusion.
199. The Act of 29
April 1999 establishing the right to a guaranteed minimum income, which
repealed the amended Act of 26 July 1986, stressed the right to a guaranteed
minimum income (RMG).
The main changes introduced by this Act are as
follows:
- Upgrading of insertion measures:
The new Act places greater emphasis on active measures (in particular, the insertion efforts that must be made by the RMG beneficiaries themselves) as compared with passive measures.
Thus, participation in social and vocational insertion measures, called
“supplementary social measures” after the old
act, has been made
into a requirement for eligibility for the guaranteed minimum income.
Accordingly, any applicant for such benefits
considered fit for work must ask to
participate in the insertion measures in order to maintain his right to an RMG
benefit (insertion
allowance and/or supplementary allowance). Only applicants
who are not fit either for the ordinary job market or for the measures
under the
RMG Act, and those who are exempted under a legal provision, have the right to
the supplementary allowance without participating
in the insertion
measures.
The participation of the beneficiary in a vocational insertion activity is
remunerated in accordance with the minimum social wage
scales. This remuneration
also gives entitlement to affiliation to the pension scheme. Moreover, in
determining resources the insertion
allowance is taken into consideration only
through an exemption corresponding to 20% of the guaranteed minimum income to
which the
beneficiary (or his domestic community) is entitled.
- Lowering
of the age threshold:
The threshold has been lowered from age 30 to age 25. The exceptions for
persons raising a child and persons unable to earn a living
within the limits
laid down by the RMG Act (i.e. persons unable to find a job on the ordinary
labour market) are maintained.
- Easing of the residence
requirement:
This requirement has also been eased from 10 to 5 years. Those who qualify
as stateless or as political refugees do not need to meet
this
requirement.
- Simplified treatment of the maintenance
obligation:
In determining the resources of an applicant the children’s
maintenance obligation toward the parents is no longer taken into
account.
- Abandonment, for the parent raising a child less than six years old, of the
exemption from participation in vocational insertion
activities:
The Act eliminates this poverty trap which mainly affected women. Thus, if
the care, education and safekeeping of the child are ensured,
the responsible
parent must take part, in his or her own interest, in vocational insertion
measures.
- Exemption of the occupational income of a child beneficiary
of the RMG:
In determining household resources, the occupational income of a child is
not taken into consideration up to the guaranteed minimum
income for a single
adult provided that the child has not yet reached the age of 25.
- Other
changes:
Finally, the Act adopts clearer and more favourable rules on the fixing of
benefits in kind and establishes the principle of non-reimbursement
of the
insertion allowance. Moreover, rental charges payable are taken into account on
a more favourable basis.
200. On 31 December 2000, the National Social
Assistance Service (SNAS) had 8,751 RMG beneficiaries (4,746 women and 4,005
men) in
5,873 households. Of these households 77.13% were childless, 9.60% had 1
child, 7.41% had 2 children, 4.04% had 3 children, 1.23%
had 4 children,
and 0.60% had 5 children or more. It should be noted that 19.81% of the members
of the households receiving either
the insertion allowance or the supplementary
allowance were less than 18 years old.
201. The Act of 8 December 2000
concerning the prevention of overindebtedness and introducing a collective debt
settlement procedure in cases
of overindebtedness established a coherent
legal system for preventing overindebtedness and advising, counselling and
assisting overindebted natural
persons. Further details can be found in
paragraph 106 of this report.
202. Reference should also be made to
paragraphs 109 ff. of this report dealing with family benefits.
VII. EDUCATION AND LEISURE, RECREATIONAL AND CULTURAL ACTIVITIES (arts. 28, 29 and 31)
A. Education, including vocational training and guidance (art. 28)
1. The Organization of Primary Education Act
203. A new act
amending the Organization of Primary Education Act of 10 August 1912 is in the
process of being drafted. Within this context, it is proposed to introduce a
clearer definition of the
child/teacher and teacher/parent
relationships.
204. Early education for children from the age of
3 will be introduced progressively up to the start of school year 2004/2005,
when
provision will become compulsory for all communes. However, early education
remains optional for parents and their children. Early
education is offered free
of charge by public establishments (see under “Objectives of
education”).
3. School inclusion of children with
disabilities
205. In accordance with the principle of equality of all
children before the law, in 1999 the schooling of disabled children was placed
under the sole responsibility of the Ministry of National Education, Vocational
Training and Sport.
Obviously, the introduction of compulsory school
attendance for disabled children represented a major advance in combating
discrimination
against them. Thus it is clear that their schooling should be the
responsibility of the same ministry as that responsible for all
other school-age
children.
However, as it would not be appropriate to offer all pupils the
same courses regardless of their abilities and needs, individualized
teaching
should be provided. Since the introduction of the School Integration Act in
1994, children who are disabled and/or have
special educational needs can
receive compulsory education either in an ordinary class or in a specialized
differentiated education
institution. Depending on the special needs of the
child, all the partners involved, both professionals and parents, are required
to consult on the most appropriate form of schooling. Whatever the form of
schooling chosen by the parents, an individualized education
plan is drawn up
for the children concerned at the start of the school year.
The
professionals of the Counselling Service for Children in Differentiated
Education receive and accompany children with psychopedagogical
problems of
school and family origin. Acting under the aegis of the Ministry of National
Education, Vocational Training and Sport,
they carry out their tasks, where
necessary, in collaboration with the competent representatives of other
ministries.
The professionals of this service and those of the Ambulatory
Rehabilitation Service need to get together and pool their skills and
know-how
in the interests of the children seeking aid and support.
The
rehabilitation measures provided after school hours for pupils with dyslexia
have been reinforced.
It remains to add that the integration of disabled
children is not confined to their attending school.
With respect to the
efforts made to care for children with special needs in agreement day care
facilities, reference should be made
to paragraph 187 of this
report.
4. Education of foreign children
General coordination
206. In 1997, the Ministry of National
Education appointed a coordinator for the education of foreign children and, at
the beginning
of 1998, published a guidance document on the education of
non-Luxembourg children entitled “For an integrated school - facts,
questions, prospects”.
The 1999 coalition
agreement
207. The present Government’s coalition agreement
provides for a number of measures relating to the education of foreign
pupils:
Aware both of the difficulties created by the enrolment of
numerous non-Luxembourg children in the Luxembourg school system and the
absolute necessity of preserving integrated schools, the Government is to set up
pilot French literacy projects. These pilot projects
will focus on the districts
with a large foreign population and will be carried out in schools that also
provide other classes. By
teaching German as a foreign language these projects
will aim to enable romance-language speaking children to reach a level that
facilitates their reintegration into traditional units.
Moreover, the
Government intends to introduce into secondary education a specific languages
regime within the context of the creation
of an “international
baccalaureate”.
Pilot projects to replace the first and second
years of study in primary education by a three-year continuous learning cycle
will
be introduced. This will make it possible to structure the first years of
education more flexibly. These measures will be carried
out in parallel with the
introduction of transitional arrangements between pre-school and primary
education which should be more
flexible and make greater allowance for the
actual development of each child. Such a solution should also make it possible
to organize
a dialogue between parents and teachers from the pre-school
stage.
Policy debate in the Chamber of Deputies, 29 November
2000
208. During a policy debate on the integrated school, the
Chamber of Deputies adopted a 24-recommendation motion on the education
of
pupils with a foreign mother tongue. The Ministry of National Education,
Vocational Training and Sport has set up a working group
to look into the
practical implementation of this motion.
Specific measures for the
education of pupils with a foreign mother tongue:
209. These measures
are as follows:
− Induction of newcomers in Luxembourg’s schools: In Luxembourg’s schools a knowledge of the country’s three official languages, namely, Luxembourgish, German and French, is required. The classes for newcomers are intended to give the pupils the linguistic knowledge they need to continue their studies in normal or French-speaking classes.
− Primary education classes: Very young children are enrolled in normal pre-school or primary classes where they learn Luxembourgish, German and French. In some communes, induction classes have been organized for foreign pupils arriving in the country at an age at which their integration into a first or second year course of study is no longer justified.
− Development of mother tongues and native cultures: Portuguese and Italian children are able to follow integrated primary education courses in their mother tongue. The aim is to develop the language and culture of origin of non-Luxembourg children as part of a school-for-all approach and to avoid placing on the children the extra burden of attending mother-tongue courses on free afternoons.
− Technical secondary education classes: Technical secondary education offers various types of induction classes for newly arrived pupils aged 12 to 16. In the middle and higher technical education cycle various forms of vocational training are offered with French as the common language.
− Technical secondary education and vocational training in French: The first steps toward developing vocational training in French have been taken, in particular within the context of the European Social Fund.
− Education for the children of asylum seekers: A raft of measures for the education of the children of asylum seekers has been adopted by the Ministry of National Education. They are set out in paragraph 244 of this report.
5. Psychology and counselling
210. One
of the measures adopted by the Grand Duchy of Luxembourg which significantly
encourages the protection of the rights of the
child is the recruitment, under
the PAN (national plan of action for the promotion of employment) Act, of 22 men
and women social
workers and 9 graduate teachers to the SPOS (School Psychology
and Counselling Services) of the post-primary education system.
The
school psychology and counselling teams are now definitely
multidisciplinary:
Previously, the SPOS were composed of psychologists
and teacher-counsellors. The social and educational work which, in the past,
could
be carried out only on an ad hoc basis will henceforth systematically
supplement the pedagogical and psychological activities in
our high schools with
a view to:
− closer collaboration in and with the families;
− the organization of educational extracurricular activities;
− the development of relations of trust between young people and adults.
Another initiative, just as important as the
recruitment of additional socio-educational personnel and likewise aimed at
improving
the supervision of young people, is the initial and continued training
of these recruits in parallel with that of the existing staff
of the School
Psychology and Counselling Services.
It is within this context that the
School Psychology and Counselling Centre has devised and formulated a systematic
training programme
designed to be practical and down to earth and aimed at the
acquisition of new skills.
211. In view of the increasing number of pupils arriving
from primary school without a guidance report (“avis
d’orientation”) and lacking the knowledge necessary to follow
the curriculum of the preparatory regime of technical secondary education,
the
Ministry of National Education is drawing up a framework plan for pupils with
specific educational needs. Pilot classes will
be organized in each technical
high school providing preparatory regime classes from the start of school year
2001-2002.
B. Objectives of education (art. 29)
1. Early education: optimal integration and stimulation of the child
from an early age
212. The aim is to improve the socialization of the
children, as well as to ensure the harmonious integration of immigrant children
and familiarize them with the national language and culture, as Luxembourg
society is multilingual and characterized by a very substantial
immigrant
population.
As early childhood constitutes a phase of intense
development, it is desirable to stimulate the child’s potential from the
age
of three in an environment that encourages interaction with its
peers.
In fact, the development of the very young benefits from the
socialization opportunities provided by a group composed of children
of diverse
origin.
The task of pedagogical and educational policy is to provide from
early childhood an education in equality of opportunity and the
recognition,
acceptance and celebration of differences while pointedly rejecting exclusion
and discrimination.
The challenges of early
education
213. Developments in early childhood prepare the ground for
a life of independence, discovery and life-long learning.
Early education
is aimed at the global development of the child, a process which should be
continued into pre-school education. By
interacting with others, the child can
develop its language, communicational and social, physical and motor, and
affective and cognitive
abilities.
Encouraging children to talk and find
pleasure in doing so and giving them access to the multiple dimensions of a
varied and interesting
outside world are primary objectives of early
education.
As regards the language aspect, the integration of a large number
of immigrant children faces Luxembourg with a particularly serious
challenge.
Familiarization with Luxembourg’s language and culture is a priority
considering the need for successful integration
firstly into school and then
into society. Luxembourgish should not become a factor that leads to exclusion
or even discrimination
but should play a unifying role.
As regards the
social aspect, Luxembourg society, like any developed society, is confronted by
certain factors that can have a disintegrating
effect on an educational project,
factors resulting in particular from socio-economic and family trends.
International studies have
shown that young children who have benefited from
good development and learning programmes have a better chance than others of
completing
the school cycle and achieving valid life goals (cf. Colin N. Power,
“Initiation into Active Methods” Unesco Publications
1999). In this
sense, early education constitutes the cornerstone of a social system that would
guarantee its members the best possible
opportunity for personal and collective
development. By bringing together Luxembourg and foreign children, girls and
boys, with and
without specific educational needs, early education provides a
meeting place where all the children learn to live together and respect
each
other while accepting their characteristic differences.
Basic
methodological options of early education
214. Early education
recognizes, respects and encourages the uniqueness of every child. It starts out
from the principle that the
child is a complex being that develops globally when
it interacts with its environment. It stresses the fact that the child is an
active learner and tries to encourage it to choose its activities in accordance
with its personal tastes and interests. It acknowledges
that the child learns
primarily through play and takes full advantage of social activities in the peer
group. It emphasizes the importance
of close collaboration between the teaching
staff and parents.
The child is an unique being: Every child has
its personal characteristics, its preferences and its talents which make it an
unique individual. Early education
recognizes and encourages the personality of
every child. It respects the level and rhythm of development of each child and
tries
to respond in the best possible way to the needs of all the children. It
is primarily interested in individual progress and is aware
of the risks of a
summary assessment of the child against pre-established standards.
The
development of the child is a global and integrated process: All the
components of development, the physical and motor, intellectual, linguistic and
socio-affective dimensions, are involved
to differing degrees in the same
activity. Any progress made in a particular area contributes to the development
of all the development
components.
Early education must respect the play
instincts of the child while developing its activities. It is important to let
the child choose
its games since in this way it can improve its abilities while
extending its control of the environment.
The integration of children of
foreign origin will be most successful if the relations with the families are
based on respect and
understanding. Appreciation of the mother culture has a
positive effect on the development of the child’s personality and promotes
the academic and social integration of immigrant
children.
Coeducation
215. As public pedagogical institutions,
early education groups, at commune level and for all children, perform
fundamental functions
in the service of development and social and cultural
integration. They provide a favourable environment for interaction and
communication
in which the children can satisfy many of their needs for
activity, participation and self-realization while benefiting from an education
and an aid to development tailored to the requirements of their
age.
There is now a general consensus concerning the advantages that
social integration can offer children with disabilities.
The fact remains
that early education professionals are becoming increasingly concerned with the
integration of children with developmental
and behavioural particularities and
their education alongside other children.
To a greater extent than
before, apart from educational and pedagogical skills, it is above all social
and psycho-pedagogical skills
that are called for and make it possible to
undertake a multidisciplinary and preventive task aimed at avoiding or
alleviating the
development problems of children exposed to more difficult
living conditions. Thus, early education should combine differentiated
and
specific forms of support in its global educational project and in the general
context of the development aids it offers.
Prevention and
compensation: two key functions of early education
Simply by existing
early education groups already have a preventive and compensatory effect since
they offer the children a certain
compensation for their less favourable
starting conditions. By evolving in a heterogeneous educational group the child
is able to
draw on the very first source of development of personality traits,
i.e. cooperation with other human beings. What the child has
learned, in an
initial stage thanks to interaction with the other members of the group, it will
later be able to apply on its own.
Thus, early education can compensate
for certain unfavourable circumstances by acting as a protective and preventive
factor. It thus
helps to prevent or moderate the adverse consequences and
long-term effects of any handicaps at development level.
The task of the
teaching staff is to assess the children’s strengths and weaknesses and to
take them into account in their pedagogical
approach.
By thus satisfying
the basic psychological needs of all children aged 3 to 4 and in concerning
itself with their need for safety and
protection, guidance, stimulation,
initiative, identity, individuality, expression and communication, institutional
early education
leads all children, including the most disadvantaged, to develop
a positive and stable image of themselves. In this respect, it constitutes
an
important aid to the integration of all children, whatever their differences,
into school and society.
Involvement of the parents in early
education
216. In entrusting their children to the public school, the
parents temporarily transfer part of their responsibilities to the educational
institution while retaining their rights and duties as the primary educators of
their children. The school and the family cannot
do without each other. Both
parties benefit from collaboration in their efforts to ensure the
children’s well-being. The responsibilities
of the two partners - school
and family - are complementary.
The partnership, that is to say the good
relations between school and family, will be maintained and consolidated during
the rest
of the child’s school career.
The building
infrastructure
217. The aim of early education is the global
development of the child. It provides a place for interaction and educational
games
in which all the child’s communicational, social, physical,
psychomotor, affective and cognitive skills can best be developed.
It is
especially important that the rooms be properly fitted out. The environment must
be both stimulating and reassuring. These considerations
should be borne in mind
when designing the buildings and furniture. The age of the children should be
taken into account and efforts
should be made to create a family atmosphere that
encourages a climate of trust and closeness between all the members of the
group.
Obviously, all the facilities should be suitable for children with
motor disabilities.
2. Pre-school education
218. Like the
primary school, the nursery school is a place of social integration: it brings
together children from all socio-economic
environments, it takes in the children
of immigrant parents and, within the limits of its resources, children who are
retarded, have
disabilities or require special care.
As part of an
educational process whose chances of success it helps to increase, pre-school
education has seen a considerable expansion
of its mission and the challenges it
faces.
The mission of the nursery school
219. Educating a
child means helping it to progress from a state of dependency to a state of
independence and responsibility. Education
is a continuous process which begins
in the family and extends throughout and beyond the years of school attendance.
Pre-school education
is part of this process within which it plays its own
specific role.
The mission of the nursery school is to contribute
to:
− the development of all aspects of the child’s personality;
− the acquisition of knowledge and know-how;
− mastery of the environment;
− insertion into the cultural milieu;
− the development of thoughtful and responsible behaviour;
− integration into social and school life;
− compensation for environment-related deficits and the prevention of school maladjustments.
The objectives of pre-school education
are defined in terms of the various aspects of the personality. The list is
confined to the
more important objectives, namely, the psychomotor, affective,
social and cognitive domains and the domain of
communication.
Intercultural education
220. Life in the
class group enables children of different linguistic and cultural origins to
communicate, play and work together
and thus to develop attitudes of mutual
understanding and respect.
Over and above these spontaneous exchanges,
the nursery school encourages interaction between cultures by incorporating into
the educational
projects elements of the culture of the countries of origin,
such as fairy tales, songs, festivals, ways of living, eating and building,
etc.
The appreciation of the native culture has a positive effect on the
development of the child’s personality and promotes the
scholastic and
social integration of immigrant children.
Integration of disadvantaged
children
221. School has its limits. It cannot solve every problem
associated with the personal characteristics of the child and the environment
from which it comes. However, it can help the child.
Giving a
disadvantaged child confidence and the feeling of being respected and accepted
is not an easy task. One means of accomplishing
it is to take into account the
contribution which the child itself can make to the proposed activities and to
give that contribution
value by incorporating it into the educational project
for the class. At the same time, regular contact with the family facilitates
understanding of the nature of the difficulties encountered and hence makes it
easier to assist the child.
Cooperation between nursery school,
parents and community
222. Education is a continuous process which
cannot be fragmented. During the first years of life the most important place of
learning
is the family home. To be effective, pre-school education must be
based, as far as possible, on the child-rearing efforts of the
parents. The two
are complementary.
3. Pupils in difficulties
223. Since
1997, the Ministry of National Education, through the Pedagogical and
Technological Research and Innovation Coordination
Service, has been financially
supporting, monitoring and coordinating pedagogical projects aimed at
encouraging the reintegration
of pupils who fail to keep up.
Through
these projects, which are being implemented in almost all the technical high
schools, the Ministry is reaching both children
with learning difficulties and
newcomers. By means of internal differentiation, while respecting the
difficulties and learning speeds
of the pupils, the teachers involved in these
projects aim to take a positive approach rather than one based on failure in
order
to enable these young people in difficulties to acquire vocational
training. Through group work, scientific, technological and artistic
activities
developed in a multidisciplinary context these projects also aim to develop the
social and relational skills of the pupils
to the greatest possible
extent.
Thus, a framework plan for pupils in difficulties is in the
process of being prepared and should become effective at the start of
the
2001-2002 school year. This framework plan will take into account the
pedagogical experience acquired in the various projects
and will therefore make
it possible to generalize this new pedagogical approach.
Moreover, the
Pedagogical and Technological Research and Innovation Coordination Service, in
collaboration with the teachers of the
preparatory cycle, is developing
materials for learning Luxembourgish (textbooks and audio CD) for newly arriving
pupils in order
to facilitate to the greatest possible extent their rapid
integration into Luxembourg’s social life. The need for such a course
is
all the greater in that the existing textbooks are mainly for adults. The topics
dealt with in the various modules take into account
the centres of interest of
the young people and their communication needs. Two textbooks have already been
published and a third
will appear shortly, while the audio CD is scheduled for
2002.
4. The rights of the child and human rights
224. The
teaching of human rights, including the rights of the child, is an integral part
of the curricula and programmes of Luxembourg’s
primary and post-primary
education.
This subject calls for a “mainstreaming” approach
and has therefore been explicitly incorporated in the following
branches:
− moral and social education (primary education);
− moral and social training (post-primary education);
− awakening to the sciences (“sozialer Erfahrungsbereich”);
− civic and social education;
− knowledge of the modern world;
− language teaching;
− natural and social sciences (history and geography);
− religious and moral instruction.
Daily experience of
human rights in the school context enables the pupils implicitly to develop
cognitive and psychosocial skills
as well as the ability to act consistently and
logically.
School textbooks
225. The primary school textbooks
have been reviewed with the aim of adapting the passages dealing with human
rights.
For the purposes of secondary and technical secondary education,
a commission of experts has proposed an awareness-raising and training
action
for the members of the national committees responsible for school programmes and
textbooks.
Reform of moral and social training in post-primary
education
226. The national committee for moral and social training
programmes has established a new schedule for all post-primary education
classes. Human rights are at the root of their thinking. Pupils will have the
opportunity to acquaint themselves with the relevant
texts and engage
personally. The new programme will enter into effect from the start of the
2001-2002 school year. In order to ensure
that the programme is implemented in
accordance with the objectives, the teaching staff will receive continued
training during the
first two years following its
introduction.
Awareness-raising and information campaign concerning
the European Human Rights Convention
227. Within the context of
Luxembourg’s presidency of the Council of Europe from May to November
2002, the Ministry of National
Education will launch an awareness-raising and
information campaign concerning the European Human Rights Convention for
teachers
in a position to introduce this topic into their courses (languages,
history, geography, civics, moral and social training, knowledge
of the modern
world, natural sciences). Teaching leaflets prepared by the Council of Europe
will be made available to the teaching
staff and they will be offered special
training.
Innovation projects, school projects and establishment
projects
228. All the projects (innovation projects, school projects
and establishment projects) coordinated by the Ministry of National Education
support the principles laid down in the Convention on the Rights of the
Child.
The following establishment projects are good examples:
− Echternach classical high school: the project aims to make young people more aware, through cooperation with humanitarian organizations, of the problem of underdevelopment and to encourage them to contribute to the building of a society that displays greater solidarity;
− Luxembourg high school for boys: the project is concerned with the anti-violence campaign. The aim is to analyze aggressive behaviour in all its forms, in several courses and at all class levels, in terms of the chapters and subjects of the official programmes for the respective classes. Obviously, human rights are also addressed within this context. The courses in which these ideas are discussed include history (war and peace, terrorism and tolerance), geography (economic situation, wealth and poverty), biology (races), religious and moral instruction (religious beliefs, fanaticism, discrimination) and language courses.
5. Gender equality
229. In
relation to articles 28 (right to education on the basis of equal opportunity)
and 29 (preparation of the child for responsible
life in the spirit of equality
of sexes), the Ministry of National Education has taken specific measures to
make the teaching staff
aware of the gender perspective, to analyze the access,
choices and academic results of girls and boys and to diversify their academic
and vocational options.
To promote a pedagogy that respects equality,
appreciates diversity and avoids reproducing stereotyped images of human beings,
the
Ministry has drawn up a practical guide for those who prepare teaching
materials, is organizing training for the teaching staff and
supporting the
“education in equality” actions of the Ministry for the Promotion of
Women.
6. Promotion of health, campaign against violence and
prevention of drug addiction
230. As health is a decisive factor in
the personal and professional development of the pupils, teachers and educators,
the creation
of healthy places of learning and work may be expected to lead to
an improvement in the school climate and hence in the quality of
the education
offered by our schools.
To create a school climate that favours the
development of well-being and motivation with a view to promoting scholastic
success and
combating all forms of violence, the Pedagogical and Technological
Research and Innovation Coordination Service (SCRIPT) is coordinating
the
activities forming part of the 5 levels of action defined by the Ottawa Charter.
For details reference should be made to Chapter
VI.B.3 “Health
surveillance”.
Within the health promotion context, the
Ministry has intensified its regular information and awareness-raising,
organizational, accompanying,
training and documentation activities in the
various areas of health promotion (in particular, by promoting a healthy diet,
affective
and sex education, and the prevention of drug addiction, violence and
AIDS) and environmental education.
Moreover, the Ministry has instructed
the School Psychology and Counselling Centre (CPOS) to set up a working group on
the prevention
of violence in school to work on the various forms of violence
that exist in the school context.
7. Environmental
education
231. In accordance with the Resolution of the Council and
the Representatives of the Governments of the Member States meeting within
the
Council of 1 February 1993 on a Community programme of policy and action in
relation to the environment and sustainable development,
environmental education
is officially defined in the framework plan for early education (2000), the
framework plan for pre-school
education (1997), the curriculum for primary
education (1989) and in the programmes of specified branches of post-primary
education
(biology, moral and social training, health and environmental
education, technology-environment-health).
Early and pre-school education and
primary and post-primary education aim to promote the global development of the
child in its socio-cultural
and natural context. The various activities are
adapted to the cognitive, psychomotor, affective and social development of the
child.
The environmental criteria to be applied in building new schools
have been defined by the Grand-Ducal Education Commission.
C. Leisure, recreational and cultural activities
232. In the paragraphs 620 to 623, the initial report drew attention
to:
− the legal recognition of the right of the child to leisure and to recreational, cultural and artistic activities;
− the existence of institutions and forms of leisure activity for children, for example:
(a) public organizations such as the National Youth Service, National Education and the Commune Authorities;
(b) private organizations funded by the public authorities such as the Primary School Sports Associations League and the Luxembourg Students’ Sports Associations League, together with the “Art à l’Ecole” association and the “Panda-Club;
(c) private bodies such as the General Conference of Luxembourg Youth, the federation of music, choral, theatre and traditional-dance societies, the guides and scouts, the sports federations and sports and leisure associations, the holiday services and youth clubs.
233. In relation to the right of the
child to rest and leisure, to engage in play and recreational activities
appropriate to its age
and to participate freely in cultural life and the arts,
on 23 March 2001, paragraph 620 of the initial report was the subject of
a
debate in the Chamber of Deputies in connection with the passage of the
Protection of Young Workers Act of 23 March 2001.
In article 7 of
the new Act the participation of children in such activities is regulated as
follows:
“Art. 7 (1) The participation of children, for gain or in a
professional capacity, in audiovisual or cultural, artistic, sporting or
advertising activities, as well as in the fashion sector, shall be
prohibited.
The prohibition specified in the first subparagraph shall also apply to
the participation of children, even if not for gain or in
a non-professional
capacity, in activities which are commercial in nature or form part of the
ordinary activity of the organizer,
promoter or enterprise for which the
children carry out the activity.
The prohibition specified in the first subparagraph shall not apply to the
participation of the child, otherwise than for gain, in
the activities mentioned
therein either as a member of a sports, cultural or artistic association or
within the framework of association
activities.
(2) However, at the written request of the organizer of the activity,
accompanied by the written permission of the child’s legal
representative,
a preliminary individual permit may be issued by the minister having labour
among his responsibilities or his representative,
after consulting the Director
of the Factory and Mines Inspectorate or his representative, the ministries
having national education,
vocational training and the family among their
responsibilities and the consulting physician. The Director of the
Factory and Mines Inspectorate may also request, in accordance with paragraph
(1) of the amended Act of 4 April 1974 on the reorganization
of the Factory and
Mines Inspectorate, the opinion of a doctor other than the consulting
physician.
With a view to the application of this article, the term
“organizer” of an activity within the meaning of the preceding
subparagraph is also taken to mean, in particular, persons, associations,
companies and other bodies assuming any responsibility,
in fact or in law, in
the organization of the activity or financing it, together with agencies,
managers, impresarios and others,
associations, companies or bodies concerned
with the presence of the child in the activities specified in this
article.
(3) No permit may be issued for variety shows and cabarets.
(4) Children shall be authorized to participate in the activities
specified in this article only on the following conditions:
(a) they must be at least 6 years old, without prejudice to paragraph (3) of this article;
(b) they may not participate in the activities after 11 p.m.;
(c) they must be allowed an interrupted period of rest lasting at least 14 hours between two participations in one of the activities specified in this article;
(d) the compensation to which the child is entitled must be paid into a blocked savings account in the child’s name.
(5) Without prejudice to the above provisions, the minister with labour
among his responsibilities or his representative may grant
exemptions from the
age limit specified in paragraph (4) of this article. They shall first consult
the minister with the family among
his responsibilities, the Factory and Mines
Inspectorate, the consulting physician and, where necessary, another doctor
appointed
for the purpose.
(6) The Director of the Factory and Mines Inspectorate or his representative may, both in connection with the granting of the authorization mentioned in paragraph (5) above and in the course of the activities, arrange for the child to be heard by the psycho-socio-educational personnel of the Factory and Mines Inspectorate, in the presence of the consulting physician and, where necessary, another doctor appointed for the purpose, together with a psycho-socio-educational officer from the Ministry of National Education and the Ministry of the Family.
(7) On pain of denial or withdrawal of permission, the participation of children in the activities specified in paragraph (1) of this article must not involve any commercial exploitation of the children, or any danger or risk for the children, must not jeopardize their education or training, and must not harm or be detrimental to their health or physical, psychological, mental, spiritual, moral or social development.
On pain of denial or withdrawal of permission, the participation of
children in the activities in question must not adversely affect
their regular
school attendance, their participation in vocational guidance or training
programmes approved and supervised by the competent authorities or their ability
to benefit from the instruction received. ”
The Act of 23 March
2001, articles 17 to 22 and 25 to 27, also regulates, equally strictly, the
working hours of adolescents who after
their compulsory education (age 15) do
not continue with their studies but go straight into the world of work. As for
articles 23
and 24, they establish the rest periods and breaks for young
workers.
234. The law on education leave (see paragraph 621 of the
initial report), introduced by the Legislature (Act of 4 October 1973) to
promote the organization of recreational, artistic and cultural activities for
children, has not been changed. The service which
administers this special leave
has an unrestricted budget which takes no account of the financial
year.
235. Similarly, the Act of 27 February 1984 creating the National
Youth Service and establishing its tasks mentioned in paragraph
622 of the
initial report has not been amended since.
236. On the other hand,
following the appearance of the initial report in July 1996, in December of that
year the Ministry of Youth
published the “Policy Guidelines of the
Ministry of Youth”. In this document, the Ministry of Youth set out the
course
it intended to follow in its global policy on behalf of Luxembourg youth
and the objectives of that policy:
− the participation of young people in society;
− equality of opportunity for all young people;
− the promotion of fundamental values such as democracy, solidarity and tolerance.
To achieve these objectives, it proposed to give
priority to the following actions:
− the promotion of social integration and the participation of all young people in society;
− support for youth organizations that create a social space favouring the participation of young people in the life of the city;
− active coordination and cooperation among government bodies and youth organizations, particularly in the provision of information and leadership for young people, the training of leaders and prevention;
− the decentralization of youth policy through the development of the Commune Youth Plan;
− regional leadership and, in cooperation with the communes and youth organizations, promotion of the network of meeting, information and activity centres for young people;
− the development of infrastructure for young people such as residential centres, young people’s housing and youth clubs.
In
order to realize these objectives and intentions, four action plans have been
drawn up and approved by the Youth Council. These
action plans, which will be
publicly debated in various “youth forums” before final adoption as
a basis for implementation,
are as follows:
To
a large extent, the preparation of these various action plans is based on the
general principles laid down in the Convention on
the Rights of the Child, in
particular in articles 2 (non-discrimination), 3 (best interests of the child)
and 12 (respect for the
views of the child) mentioned in the tenth paragraph of
the concluding observations of the Committee on the Rights of the Child (Doc.
CRC/C15/add. 92). These action plans and their implementation are also a
response to other provisions of the Convention on the Rights
of the Child , in
particular articles 13 (freedom of expression), 15 (freedom of association)), 17
(access to appropriate information)
and 29 (objectives of
education).
237. At the informal meeting of the youth ministers of the
countries members of the Council of Europe in May 1995, Luxembourg indicated
its
approval of a Finnish proposal to proceed, by country, with a series of studies
of youth policies. In this connection, our Government
had independent experts
prepare a National Report on Luxembourg’s Youth, in which the
“Guidelines” and various
action plans and their applications were
described and analyzed. This report is being evaluated by a committee of
international experts
commissioned by the Council of
Europe.
238. Naturally, the guidelines for a youth policy and various
action plans, elaborated by the Ministry in consultation with
non-governmental organizations and progressively implemented since 1997, have
had
repercussions on the institutions and the forms of leisure, recreational,
cultural and artistic activity for children.
2. Institutions and forms
of leisure activity for children
239. All the bodies mentioned in
paragraphs 624 to 633 of the initial report have continued their efforts to
facilitate access for
children and young people to leisure, cultural and
artistic activities that meet their needs and expectations. Some have seen a
significant
increase in the number of participants. Thus, during 2000, the
residential centres (paragraph 624 (b)) accommodated 15,000 participants
for
activities supervised by teachers and leaders of the National Youth Service,
whereas in 1994 the corresponding figure was 10,000.
Similarly, the National
Information and Exchanges Centre for Young People (CNIEJ) recorded 11,282
requests for information in 2000
as compared with 6,885 in 1994. Moreover, it
should be noted that, since 1996, various new institutions have come into
being:
(a) Youth House, envisaged in the governmental declaration
of 1999, became a reality in 2000. The grouping of the secretariats of a dozen
national
organizations within the same building facilitates contacts and makes
it possible to generate, with respect to youth policy, interesting
synergies
between the various stakeholders. Thus, the following have all been brought
together at the same address: the Mediation
Centre, the National Information and
Exchanges Centre for Young People (CNIEJ), the General Conference of Luxembourg
Youth (CGJL),
the “Daachverband vun de Lëtzebuerger
Jugendklibb” (Luxembourg Federation of Young People’s Clubs), the
Centre
for Studies on the Situation of Young People in Europe (CESIJE),
Luxembourg Youth Hostel Headquarters (CAJL), the National Youth
Service with its
Legal and Social Information Service, the Centre Regional Coordination Service
and the National Agency for the Community
Youth Programme. Located across from
the central station, through which thousands of students from a dozen Luxembourg
city high schools
pass daily, Youth House also makes it easier for young people
to access information inasmuch as the reception desk of the Young People’s
Information Centre is located in premises on the ground
floor.
(b) Meeting, Information and Activity Centres for Young
People, commonly known as “youth centres” (paragraph 624
of the initial report). Whereas in 1996 Luxembourg had 14 local centres of this
type in its cities and communes,
since 2000 there have been 21. Moreover, two
regional centres cover the territory of several communes. The operation of all
these
centres is underwritten by agreements between the managing non-profit
organizations, the communes concerned and the State based on
the pedagogical and
educational projects which the associations propose each
year.
(c) Centre for Studies on the Situation of Young People in
Europe (CESIJE), a non-profit organization. In December 1998 the CESIJE
signed an agreement with the Ministry of the Family, Social Solidarity and
Youth. The organization’s main objectives are:
(1) the creation in Luxembourg of an observatory to monitor the situation
of young people in Europe by:
− establishing a centre for documentation on European youth studies and research;
− analyzing and evaluating the statistics and data currently available on the situation of young people in Europe;
− making a comparative evaluation of European studies of the living conditions of young people and their socialization.
(2) the promotion and coordination of research projects and studies on the
situation of young people in Europe by:
− maintaining a constant dialogue with the large European and international institutions, public and private, that take a close interest in the situation of young people;
− assisting the political and administrative decision-makers with the formulation of projects and research;
− organizing seminars and one-day conferences for researchers and political and private decision-makers in order to improve understanding of the processes of socialization of young people in a Grande Europe;
(3) research in the social sciences, in particular field studies and
evaluation of educational projects in the area of youth policy and,
inter alia,
the launching of projects to study the situation of young people in Luxembourg
and the region;
(4) to do everything directly or indirectly related to the achievement of
its objectives. In particular, it may assist with any activity
similar in nature
to its objectives.
It is easy to understand the importance of the
work being done by the CESIJE, not only for the Luxembourg Government but also
for
all the other partners with which it works. It enables all these bodies to
adapt their youth policies regularly to the real needs
of young people. Thus,
since its creation, the CESIJE has carried out or participated in the following
surveys, studies and research
projects:
− In 1998, survey within the context of the Commune Youth Plan.
− In 1998, the CESIJE also participated in a survey on high school students and the cinema proposed and coordinated by the Grinzane Cavour organization and involving 1,000 Luxembourg high school students.
− Youth and Well-being survey (HBSC Study). In 1999, the CESIJE represented the Ministry on this working group headed by the Ministry of Health.
− In 1999, the CESIJE also collaborated with the National Youth Service on the evaluation of youth centres.
− In 2000, the CESIJE was the Luxembourg partner in the Grinzane 2000 survey “Young people and music”, a survey carried out in six European capitals of young people’s behaviour in relation to music. The results will be published in 2001.
− In 2000, an outside expert, working together with the CESIJE and the Ministry of Youth, evaluated the training for National Youth Service (SNJ) leisure organizers and their assistants. The final report was submitted to the SNJ at the beginning of 2001.
− In 2001, a qualitative study of the voluntary work done by young people (at the request of the Ministry of the Family, Social Solidarity and Youth).
240. New developments since the initial
report
(a) Infobus. In paragraph 624 of the initial report
there was mention of a plan to create a “mobile information unit” to
seek out
young people and support their activities. The Infobus has been
operational since July 1997. Specially fitted out, it acommodates
high-performance audio-visual and multimedia equipment: video, computerized
screening, scanner, printer and 8 computers for organizing
“initiation to
the Internet” training sessions and Internet searches. Since the Infobus
came into service, it has been
used not only for actions organized by the Youth
Information Centre and the National Youth Service but also in collaboration and
partnership with the youth centres, youth clubs, sports and cultural
associations, communes and schools.
(b) Commune Information Point
(PIC). The PIC project was conceived in 1998 and took concrete shape in
1999. The PIC is a cooperative project which brings together the
manager of a
youth centre, the competent commune, the Ministry of Youth, the National Youth
service and the National Information
and Exchanges Centre for Young People. It
has two objectives:
− To create an information point to facilitate access to information at local and commune level and enable everyone, children, young people and adults, to obtain general information through a personalized service. This public information point provides access to the Internet, as well as to all national and local news, and is a useful tool for those who do not know how or are unable to find their bearings in an information society that is becoming increasingly complex and global.
− To create, within the context of employment measures, useful and interesting CAT (temporary auxiliary contract) jobs accompanied by specific training and supervision. Thus, the project as such performs an important educative and integrating function for the young job-seeker. At the time of preparation of this report, 13 communes had such a service.
(c) Commune Youth Plan. The Commune Youth
Plan is a working tool that the Ministry is placing at the disposal of
Luxembourg communes within the context
of the implementation of its
“Participation of Young People” action plan. This tool has two
purposes: to enable the communes
to pursue a rationally planned youth policy
and, as far as possible, to include the young people themselves in the process.
Since
the Commune Youth Plan appeared in 1997, 13 communes, in collaboration
with the Ministry and the CESIJE, have developed projects
enabling young people
to participate in the decision-making process in relation to local youth
policy.
3. Measures taken by the Ministry of Culture, Higher Education
and Research
241. The measures taken by the Ministry of
Culture, Higher Education and Research in fields particularly relevant to the
development of the child are listed below:
− The purpose of the Act of 28 April 1998 harmonizing musical education in the commune sector is to stimulate, develop and cultivate in young people knowledge of and a taste for music to enable them to participate in musical life. Moreover, the Act is intended to provide young people with specialized training in the various musical disciplines to enable them to pursue advanced music studies at higher or university level. This law, together with the related implementing regulations, has made possible a more homogeneous musical education at commune level while imposing conditions on the curriculum and the qualifications of the teachers. Before this law came into effect, the commune administrations had sole responsibility for the organization of musical education. It should be pointed out that the funding of musical education is one of the most important items in the budget of the Ministry of Culture, Higher Education and Research.
− The Act of 30 July 1999 concerning, in particular, the promotion of artistic creation introduced grants for artistic creation, further training and retraining. Thus, grants may be awarded to established artists but also to the young and not so young who have not made artistic creation a principal activity.
− The Ministry of Culture, Higher Education and Research manages and funds the activities of the Bibliobus. Among other things, this service enables young people throughout the country to have closer and easier contact with books.
− The Ministry of Culture, Higher Education and Research manages and funds a decentralized cultural encounter and activity centre whose aim is to make people, and especially young people, aware of the differences and similarities between different cultures through activities involving expression.
− Most State cultural institutes, which are under the authority of the Ministry of Culture, Higher Education and Research, offer educational services and/or programmes. Thus, the National Museum of History and Art offers guided visits specially designed for school classes, as well as children’s workshops. The National Natural History Museum also offers a range of educational activities (activity and demonstration workshops). The activities of the Panda-Club, an agreement non-profit organization, are entirely aimed at young people. They involve making young people aware of the natural heritage through highly diversified activities. In 2000, the club organized 286 activities with 5,343 participants. Another non-profit organization with an agreement with the Ministry of Culture, Higher Education and Research, namely, the Casino Luxembourg - Contemporary Art Forum, regularly organizes workshop-visits for children to enable them to discover modern art through play.
VIII. SPECIAL PROTECTION MEASURES
(arts. 22, 38, 39, 40, 37 (b), (c) and (d), 32 to 36)
A. Children in emergency situations
1. Refugee children
(a) The
situation of refugee children
242. The Kosovo crisis showed that the
basic provisions of the Convention relating to the Status of Refugees, signed at
Geneva on
28 July 1951 and approved by Luxembourg by Act of 22 May 1953, and the
national procedure laid down in the Act of 3 April 1996 on
the examination of
asylum applications were ill-suited to enabling the authorities to deal in a
reasonable time with the flood of
asylum applications produced by a mass influx
of refugees.
Encouraged by the Office of the United Nations High
Commissioner for Refugees (cf. its opinion of 13 September 1999, parl. doc. No.
4572/5), the legislature set up two supplementary systems under the Act of 18
March 2000 creating a temporary protection regime and
amending the amended Act
of 3 April 1996 creating a procedure for the examination of asylum applications,
namely:
− the establishment of a temporary protection regime to enable the authorities to regulate quickly, in the well-defined case of a mass influx of asylum seekers, the legal and administrative situation of the latter during their stay on Luxembourg territory. It should be noted that the Act of 18 March 2000 instituting this regime provides for the beneficiaries to request family reunification on behalf of their spouse and minor children, under cover of the same regime;
− the introduction of a measure concerning the aliens bureau enabling the Minister of Justice to grant tolerance status to asylum seekers who cannot be deported for practical reasons.
243. The provision of
assistance to refugees in general and more particularly to refugee children is
the responsibility of the Government’s
Commissariat for Foreigners which
collaborates closely with the public and private social services.
The
reception centres for the temporary accommodation of refugees and asylum seekers
are managed either directly by the Commissariat
or, under a cooperation
agreement, by the Caritas Federation or the Luxembourg Red Cross. In principle,
refugee children are accommodated
in the centres with their families.
Unaccompanied minor children require the intervention, through the Commissariat,
of the authorities
responsible for the protection of young people and, if
necessary, of the guardianship and youth courts. If possible, the children
are
placed with members of their family residing in Luxembourg. Delegation of
parental authority or appointment of a guardian may
be ordered if necessary, and
in particular at the request of the Public Prosecutor’s
Office.
There is a network of specific social assistance services for
refugee children designed to facilitate their entry into the country’s
trilingual school system from the primary level.
Since 1999 the Ministry
of National Education, Vocational Training and Sport had had in place a team of
intercultural mediators. After
initial training, two male and two female
Serbo-Croat or Albanian speakers visit primary and secondary schools to promote
dialogue
between school, children and parents. They actively assist in solving
problems concerning the integration of children and young people
from South-East
Europe into school and extracurricular activities.
Outside school hours,
the mediators participate in activities organized in homes and reception centres
and provide the children with
regular academic support. In addition, volunteers
from private associations also provide extracurricular and cultural training for
these children and young people. This training often takes place in the
reception centres for asylum seekers themselves, in close
collaboration with the
educational and social team of the Commissariat for
Foreigners.
Obviously, the children of refugee and asylum-seeker families
can participate on an equal footing with children born in Luxembourg
in the
leisure activities offered during the summer holidays by Luxembourg organizers
(communes, National Youth Service, Luxembourg
Red Cross, Caritas, Foyer de la
Femme, etc.).
At the time of preparation of this report, the social
assistance provided by the State to asylum seekers, which includes material
assistance, is still being set by a decision of the Government in Council. This
situation will shortly change. A proposed Grand-Ducal
Regulation clearly
defining the social rights of asylum seekers is under discussion.
Aware
of the post-war situation in Kosovo and the fact that it is difficult and
perhaps impossible for families from the ethnic minorities
of the region to
return in dignity, the Luxembourg Government has offered 1,251 people, including
587 children, the opportunity to
settle in Luxembourg.
Without having to
give up their political asylum proceedings, those concerned, provided they meet
the requirements, can obtain an
ordinary residence permit for the Grand Duchy of
Luxembourg. For families, it is essentially a question of possessing a valid
identity
document, finding long-term employment (with certain exceptions) and
not having committed an offence against public order in
Luxembourg.
Luxembourg intends to continue to demonstrate its readiness
to participate in international cooperation to solve refugee problems.
It
should be noted that a policy of financial and material aid for those wishing to
return to their country has been pursued by the
Luxembourg authorities since
1999.
With financial support from the Ministry of Cooperation, two
Luxembourg NGOs are helping these families to organize resettlement projects.
With offices in the Serbian Sandjak and Montenegro regions, they ensure
on-the-spot supervision of the project.
244. The emergency situation
triggered by the arrival of a flood of asylum seekers has faced the Ministry of
National Education, Vocational
Training and Sport with fresh challenges which
call for new approaches and increased investment in human and material resources
(schooling
for approximately 100 children or young people per age
group).
An interministerial working group on asylum seekers and refugees,
which includes representatives of the Government’s Commissariat
for
Foreigners and the Ministries of the Interior, Justice, Labour and National
Education, has drawn up an information document concerning
the reception of
asylum seekers. This document has been distributed to the communes, secondary
school principals, primary school
inspectors and teachers of induction
classes.
In April 1999, various measures were approved by the Government
Council to facilitate the reception and school entry of the children
of asylum
seekers:
− Coordination of school reception at national level and the appointment by the Ministry of National Education of a coordinator on a fixed-term contract.
− Appointment of “intercultural mediators”, human resources of the countries of origin of the asylum seekers, to provide ad hoc assistance for the teaching staff, as well as for pupils, parents and communes. The mediators intervene in the schools at the request of the teaching staff or communes.
− Payment of the related expenses of the communes to compensate them for the extra costs (school enrolment, infrastructure, cost of auxiliary staff, support courses, school transport, canteens, extracurricular activities and supervision outside school hours, etc.) during school years 1999/2000 and 2000/2001.
During the public debate on asylum policy (Chamber
of Deputies, 22 March 2001) a motion was adopted in which the Chamber of
Deputies
invited the Government, in particular:
− to provide for specific training for asylum seekers to facilitate their eventual return to their countries of origin;
− to offer adolescent asylum seekers the opportunity to follow a vocational training course.
(b) Education of child asylum
seekers
In Luxembourg, the education of the children of asylum
seekers is compulsory in the same way as that of other children and adolescents
(whatever their status: application for refugee status being processed or
subject to appeal, application rejected but repatriation
temporarily
impossible).
Pre-school and primary education: The children are
enrolled either in (fairly large) induction classes or in ordinary
classes.
Post-primary education: Access to general secondary
education and the upper levels of technical education is only rarely possible
because of the high linguistic
standards that must be met (in German, French and
English).
In technical secondary education, there are various
possibilities: preparatory regime classes and special language regime
classes.
Up to now, from the tenth year onward, asylum seekers have not
been entitled to follow (continue with) vocational regime studies requiring
apprenticeship contracts (since an apprenticeship contract presupposes a work
permit), although, from the standpoint of language
requirements, it is the most
accessible regime. Further to a motion passed by the Chamber of Deputies on 22
March 2001 during the
debate on asylum policy, a solution is being sought that
would enable young asylum seekers to pursue vocational
training.
Further Vocational Training Centres (CNFPC): The
Ministry of National Education is organizing various vocational training courses
for asylum seekers in the Esch-sur-Alzette
and Ettelbruck
CNFPCs.
Language Centre: Young people over the age of compulsory
education can follow intensive language courses at the Language
Centre.
(c) Information and awareness-raising
actions
245. An awareness-raising project, cofinanced by the Office
of the United Nations High Commissioner for Refugees and intended for
post-primary pupils, has been coordinated by the Ministry of National Education,
Vocational Training and Sport. The project “Young
refugees, young people
in Luxembourg: a past - a present - what future?” has been circulated to
all secondary and technical
secondary schools and the teachers have received
training.
Other specific training on the same subject has been
organized.
246. By Act of 14 August 2000 approving the Rome
Statute of the International Criminal Court, done at Rome on 17 July 1998,
Luxembourg approved the Statute of the International Criminal Court, a
permanent and independent court with jurisdiction over the most serious crimes
of concern to the international community as a
whole.
247. Like any other
child, the children of refugees are entitled, where physical and psychological
recovery measures are concerned,
to the assistance of the existing medical and
psychological institutions.
A number of young asylum seekers, minors
without their parents or not accompanied by a legal guardian, are placed in the
care of persons
working for the Caritas Refugees Service or a close
relative.
B. Children in conflict with the law
1. Administration of juvenile justice (art. 40)
248. The
youth court judge and the youth court, respectively, have jurisdiction over
children in conflict with the law. There is special
legislation, the amended
Protection of Young People Act of 10 August 1992, for dealing with these
minors.
The Grand Duchy does not have a criminal law for minors. Both
minors “in need of protection” and minors in conflict with
the law
fall within the scope of the same Protection of Young People Act. Appeals are
brought before youth court magistrates.
249. In its declaration of August
1999, the Government undertook to reform the amended Protection of Young People
Act of 10 August
1992. A special “Young people in distress”
committee was established within the Chamber of Deputies. An interministerial
working group has just been set up by the ministers with justice and the family
among their responsibilities. The first stage will
involve an in-depth analysis
of the problems of young people in distress.
250. Moreover, special
attention will be paid to mediation, with children and young people receiving
support in cases of conflict,
and to prevention, with every means of protecting
young people from all forms of dependency being deployed.
251. This question was dealt with in paragraphs 656
to 663 of the initial report.
It should be recalled that in the State
Socio-Educational Centres solitary confinement is defined by article 11 of the
Grand-Ducal
Regulation of 9 September 1992 dealing with security and discipline
in the centres.
Temporary solitary confinement means that the inmate is
kept day and night in a single-occupancy cell. It may involve the suspension
of
training, work, recreational and joint activities, and the use of personal
effects.
This measure can be applied only for serious reasons. Within a
time limit of 24 hours following the imposition of the measure, a doctor
must
examine the minor in order to establish whether he is capable of enduring it. In
all cases, the doctor will draw up a medical
certificate which he submits to the
director or his deputy. A doctor visits inmates subjected to temporary solitary
confinement at
least twice a week.
The duration of a temporary solitary
confinement measure may not exceed 20 consecutive days. The measure is suspended
if the doctor
reports that its continuation may impair the minor’s
physical or mental health. Any such measure whose duration exceeds 10
consecutive days must be reviewed by the director in consultation with the
doctor, the magistrate who made the placement order, and
the chairman of the
supervision and coordination committee.
252. Since the report on the
rights of the child in the Grand Duchy of Luxembourg was drafted in December
1996, the following changes
have been made to the solitary confinement
measure:
− The former solitary confinement cells have been abolished and a new SC block comprising 6 solitary confinement rooms, a shower room and a common room has been built to secure standards. Each room is equipped with a wash basin, a toilet, underfloor heating, air-conditioning and an internal telephone which the young person can use to contact the service instructor at any time.
− The duration of solitary confinement measures is fixed in advance. Solitary confinement generally for a period of 48 hours is the measure used to punish drug abuse or trafficking, running away or physical violence.
− Every young person entering the SC block receives a fact sheet concerning his temporary solitary confinement measure indicating his first and last names, his date of birth, the date and precise time of commencement of the measure, the duration of solitary confinement, the reason for the punishment and the name of the official ordering the measure. Moreover, the fact sheet also indicates the names and telephone numbers of the persons authorized to hear an appeal: the youth court judge and the chairman of the supervision and coordination committee. This fact sheet is placed in the young person’s file.
− Since the start of school year 2000/2001, a teacher from the Socio-Educational Teaching Institute at Dreiborn has been assigned to provide instruction for young persons in solitary confinement.
− During the year 2000, 66 girls spent time in a CSEE. During this period the SC block was occupied for 264 days, which corresponds to an average of 0.72 girls per day in solitary confinement. Over the same period, 88 boys spent time in a CSEE and the SC block was occupied for 477 days, which corresponds to an average of 1.3 boys per day in solitary confinement.
− The inmates in solitary confinement in the SC block are seen either by the members of the management committee or by the personnel of the psycho-social service and regularly by the teaching staff who often take meals with them.
253. This question was dealt with in paragraphs 664
to 668 of the initial report.
254. In its declaration of August 1999, the
Government recalled its commitment to building a secure unit for minor children
within
the framework of the State Socio-Educational Centres (CSEE) and providing
the socio-educational centres at Dreiborn and Schrassig
with the qualified
personnel they need to carry out their mission under favourable
conditions.
As soon as the secure unit is ready, the practice of
occasionally placing minors in the State Penitentiary (CPL), as followed at the
time of preparation of this report, will cease.
255. The organization of
the psycho-social supervision of minors placed in the CPL is overseen by a CPL
psychologist.
Generally speaking, the team responsible for the treatment
of minors placed in the CPL has been strengthened since 1998, while at
the same
time the number of minors placed has fallen.
The psycho-socio-educational
supervision of minors in the CPL is now organized as
follows:
Educational activities
A teacher employed by the
penitentiary administration supervises the minors on a daily basis. He organizes
and directs their communal
activity and leisure sessions for 16 hours a week. He
also prepares reports on the behaviour of the minors.
In collaboration
with the Central Social Assistance Service (SCAS), the teacher provides
educational supervision for the minors placed
in the CPL. An SCAS probation
officer visits the CPL weekly to prepare the minors for social
reintegration.
The social officers of the socio-educational centres and
homes in which the minors stayed before being placed in the CPL provide for
their continuing supervision.
Psychological
assistance
Where necessary, minors with psychological problems are
seen individually by the prison psychologist. A psychiatrist may be brought
in
to provide psychiatric treatment.
Moral assistance
The
chaplain provides moral support for minors who request it. Minors may, if they
so desire, receive visits from priests of their
faith.
Education
Seven teachers assigned to the
penitentiary administration by the Minister of National Education and Vocational
Training give courses
for the minors.
On average, the minors receive 24
hours of instruction a week.
Physical exercise
Sports
monitors organize and direct the minors’ physical exercise sessions and
sports activities. Six hours a week are set aside
for physical
exercise.
Medical treatment
Sick minors receive the
necessary care and pharmaceutical products as prescribed by the prison
doctor.
In principle, sick minors are treated in the CPL infirmary. When
their condition so requires, on doctor’s orders, they are transferred
to a
hospital.
256. A service note or “Dienstvorschrift” of the
prison (CPL) administration dated 12 January 200 stipulates that:
- The strict separation of minor from adult detainees is a matter of
principle.
- Every minor shall be placed in an individual cell.
- Every minor has the right to a lawyer. The teacher shall ensure that an
application form for legal assistance is completed by each
minor detainee and
forwarded to the chairman of the competent bar association.
- The minor must be informed about the prison rules.
- All the mail of a minor must be submitted to the youth court judge,
except for correspondence between the minor and his counsel
and correspondence
addressed by the minor to the Head of State, the Government, the Chamber of
Deputies, the Minister of Justice
or the Prosecutor General, which shall remain
sealed.
- Visiting permits are issued by the youth court judge. Visits will always
take place in a separate room. There is no limit on the
number of hours for
visits.
- Subject to prior authorization by the youth court judge, the minor has
the right, during his leisure hours, to have two 10-minute
telephone
conversations a week with three persons of his choice. This restriction does not
apply to telephone conversations with
his lawyers or social workers.
- The prison administration decides whether personal objects (e.g. wrist
watch, decorative chain, etc.) should be returned to the
minor.
- Purchases on behalf of the minor may be made to order, up to a maximum of
2,500 LUF per week.
- If a minor wishes to send money to a member of his family, he must lodge
a corresponding request with the prison administration.
- The minor has the right to have a private TV set/play-station or one
provided by the prison administration and use it during his
leisure time after 5
p.m. (except during the night from 10.30 p.m. to 7 a.m.) provided that he
participates in the prescribed collective
activities (school, sports,
educational activities). For this he must lodge a corresponding request with the
prison administration.
- During leisure time, 2 or 3 young people may get together in a
cell.
- Unless the youth court judge rules otherwise, after examination by a
doctor, minors entering the CPL may participate immediately
in group activities
(sport, school, educational activities, walking in the courtyard, leisure
activities).
- To benefit from rewards the minor must participate actively in the
prescribed collective activities.
- The disciplinary rules require that the minor be dressed when breakfast
is served and that his cell be tidy, on pain of being excluded
from sport and,
if his cell is untidy, from leisure activities on the day in question. In these
cases a report is made to the administration.
- If the minor misbehaves during a collective activity, his misbehaviour
will be reported to the administration and the minor will
be excluded from
participating in leisure activities for a period to be determined by the
administration.
- Minors who have participated in the week’s prescribed activities
and have behaved well will receive, as a reward, authorization
to engage in
sports on one Saturday in every four from 1.15 to 3.30 p.m., under the
supervision of the teacher and to visit the common
room every Wednesday during
leisure time (5.30 to 7.30 p.m.).
|
257. There are no
penalties that can be imposed on minors. The prosecution service, within the
context of its discretion regarding
the advisability of prosecution, may arrange
for mediation, placement in the care of Médecins sans
Frontières-Solidarité
Jeunes, etc. The court takes
“measures”.
For minors who are at least 16 years of age at
the time of committing an offence, the youth court may decide that - considering
the
seriousness of the facts - it is not equipped to deal with this kind of
offence at youth protection level. In this case the file
is returned to the
prosecution service which can then proceed “in accordance with the usual
powers and procedures”. The
case is then judged in the same way as a case
against an adult except that being under age constitutes mitigating
circumstances.
Capital punishment no longer exists and, in view of the
circumstances, there will be no sentence of life
imprisonment.
4. Physical and psychological recovery and social
reintegration (art. 39)
258. Physical and psychological recovery and
social reintegration were dealt with in paragraphs 669 to 691 of the initial
report.
In this context, the State Socio-Educational Centres (CSEE)
collaborate closely with Médecins sans
Frontières-Solidarité
Jeunes, a service which has signed an
agreement with the Ministry of Health. This service, inaugurated in 1998, aims
to provide psycho-social
and therapeutic assistance for minors, their families
and the institutions involved when the young people are abusing psychotropic
substances. The objective of the mobile team of four qualified psychologists is,
on the one hand, to make their skills available
for the purposes of
psycho-social, therapeutic and even institutional intervention on behalf of
young people, their families and
the staff of permanent institutions and, on the
other, to establish and coordinate intervention through networking. The team is
at the disposal of the young person, it must leave room for the expression of
his personality and hear what he has to say while assuring
him that the
professionals around him are all ready to support him under a system that
extends beyond the boundaries of the institution.
In its 1999 progress report
MSF-Solidarité Jeunes noted that the CSEEs had referred 13 young people
to its services, which
represented 13.1% of their clientele. During that year,
there were 21 contacts with the CSEEs directly related with a situation,
which
was equivalent to 21.2% of the total number of situations. Regular meetings have
taken place between the psycho-social service
of the CSEEs and
MSF-Solidarité Jeunes.
Young people from the CEEEs are
participating in a pedagogical project based on adventure and the prevention of
drug addiction in
collaboration with the Centre Marienthal, the Drug Addiction
Prevention Centre and various institutions at Bitburg and Prum in Germany.
This
project is aimed at the prevention of drug addiction and the social
reintegration of young people in difficulties. By participating
in a
philanthropic enterprise the young people experience personal discovery and get
to know themselves. At the same time, they learn
to take responsibility within
the context of a specific project. This enables them to learn self-respect and
respect for other people.
Moreover, the work earns them recognition and reward
on the part of society. The project encourages them to improve their self-image
and boosts their self-confidence. From 5 to 6 young people regularly work on the
Centre Marienthal’s adventure sites. Two groups
of young people helped to
clean up the beaches in Vendée. More recently, a group has made a trip on
board a barge in the Netherlands.
The International Award is another
project in which CSEE young people participate. This is an offshoot from the
Duke of Edinburgh’s
Award devised in 1956 to encourage and motivate
British youngsters to become involved in a balanced programme of developmental
and
voluntary activities. The unique content of the programme makes it easily
adaptable to different cultures and types of society. The
basic structure is the
same in all the countries of the world. The award is made at three levels each
of which requires the carrying
out of four types of activity: voluntary service,
adventurous journey, talents and skills, and physical recreation. In 2000, three
young people from CSEEs received the first-level award.
At the time of
preparation of this report, two members of the staff were assigned part-time to
supporting the young people in approaches
to the Employment Administration and
supervising their entry into the job market. Young people from CSEEs are mostly
employed under
a temporary auxiliary contract (CAT) by job-providing enterprises
subsidized by various ministries, such as Objectif Plein Emploi,
Perspective
Emploi, the Vélo Project, the National Centre for Continuing Vocational
Training, Colabor, and Interaction Faubourg.
These entities offer a regular job
but at the same time the young people benefit from training in a specific field
and they are supervised
by teachers and social workers who undertake to provide
them with support on the job market at the end of their CAT
contract.
Under article 23 of the Ministerial Regulation of 20 May 1993
concerning the internal organization of the State Socio-Educational
Centres, the
mission of the Psycho-Social Service which at the time of preparation of this
report consisted of three psychologists,
a social worker and a CAT, is to
provide individual and collective supervision services on behalf of the staff,
to produce medico-social
and psycho-pedagogical profiles of the inmates and
design their socio-educational and psycho-therapeutic projects, to organize
various
therapy sessions with the inmates, to participate in social counselling
missions outside the institution on behalf of the inmates,
former inmates, their
families of origin or their foster families, to participate in exchange and
collaboration contacts between
the centres and other institutions, and to
contribute to the institutional analysis of the centres. Within the context of
this mission,
the Psycho-Social Service collaborates with numerous outside
therapists and psychiatrists and with homes, therapeutic centres and
psychiatric
hospitals in Luxembourg and abroad, as well as with centres that help young
people in crisis to move toward greater independence.
C. Children suffering exploitation, including their
physical and psychological
recovery and social reintegration
1. Economic exploitation, in particular child labour (art.
32)
(a) Ratification of the Convention (No. 182) concerning the Prohibition
and Immediate Action for the Elimination of the Worst Forms
of Child
Labour
259. In 1999, the Luxembourg Government gave notice of its
firm intention to be among the first Member States to ratify Convention
No. 182,
which it regards as one of the basic instruments in the struggle to eradicate
child labour throughout the world.
260. In accordance with article 19 of
the Constitution of the International Labour Organization, the text of the
Convention and that of the Recommendation (No. 190) concerning the Prohibition
and Immediate Action for the Elimination of the Worst Forms of Child Labour were
submitted to the Chamber of Deputies with the proposal
that the Convention (No.
182) be added to the list of ILO conventions whose approval by Parliament was
the subject of a bill tabled
in the Chamber of Deputies.
261. The
Convention concerning the Prohibition and Immediate Action for the Elimination
of the Worst Forms of Child Labour was approved
by the Act of 22 December 2000
approving International Labour Conventions Nos. 111, 142, 150. 151, 155, 158,
159, 175, and 182.
(b) Act of 12 February 1999 concerning the national plan of action for the
promotion of employment
262. The Act of 12 February 1999 concerning
the implementation of the national plan of action for the promotion of
employment 1998
also includes provisions relating to young workers. To offer a
fresh start for young people who have been on the unemployment register
for at
least one month, this Act introduced the temporary auxiliary contract and the
work placement scheme which focus on the training
of young job seekers and
assign them hiring priority. The State pays employers who provide work for young
people under one of these
measures contributions which are then topped up if the
young people employed are members of the underrepresented
sex.
(c) Protection of Young Workers Act of 23 March
2001
263. The new Protection of Young Workers Act transposes into
Luxembourg law the European Council Directive 94/33 (EC) on the protection
of
young people at work of 22 June 1994.
Moreover, it completely revises the
Protection of Children and Young Workers Act of 28 October 1969.
This
revision of the old act became necessary since the text had undergone
substantial amendment and some of its provisions had to
be adapted to the Act of
12 February 1999 concerning the implementation of the national plan of action
for the promotion of employment.
Similarly, certain provisions of the old
text had to be adapted to the content of the International Convention on the
Rights of the
Child adopted by the United Nations General Assembly on 20
November 1989 and ratified by Act of 20 December 1993.
An examination of
the new text shows that the following elements, in particular, merit
attention:
(1) In the context of the provisions on the prohibition of child labour, the new text provides for the regulation of the individual authorizations that may be granted to allow children to participate in cultural, artistic, sports, advertising and fashion sector activities. The text is designed to ensure effective application and avoid its remaining, like its predecessor, a dead letter because of its partially unrealistic content. Thus, by adapting the conditions for the granting of such authorizations to actual reality the text specifically strengthens the protection afforded to children and introduces effective controls.
(2) Employers wishing to engage young people aged from 15 to 18 are now obliged to carry out a risk assessment. Where this assessment shows that there is a risk, the employer has not only a duty to inform vis-à-vis the young people and their legal representatives but more especially an obligation regularly to provide the young people with free occupational health service assessments, in addition to the ordinary recruitment and periodic examinations. Thus, it is now forbidden to employ adolescents to do certain jobs if the risk assessment reveals a specific threat to their health, safety or development, in particular because of their inexperience, lack of awareness of the risks or immaturity.
(3) Attention should be drawn to the changes made to the text with respect to the working conditions of adolescents in order to adapt it to the amendments to the legislation on working hours made by the Act of 12 February 1999 concerning the implementation of the national plan of action for the promotion of employment. In this context, mention should be made, in particular, of the provisions relating to the work organization plan (POT) contained in the new Act.
(4) As regards the regulation of working hours, particular reference should be made to the provision concerning the time that can be spent by adolescents on ancillary activities unrelated to teaching or training and carried on outside and in addition to the school and workplace activities required under a combined scheme. Thus, the text introduces a strict limitation on the period of time which a young person may spend working and being trained or taught. In fact, many young people work, often for long hours, in addition to going to school, in order to earn pocket money or, less frequently, to help pay for their studies. The text limits and regulates this situation so as to bring Luxembourg national law into conformity with the Directive and prevent certain possible abuses, while allowing the adolescents to organize their ancillary activities freely and with a certain flexibility. Thus, the adolescent may not work for more than eight hours a day or more than forty hours a week, training and ancillary activities included. In this connection, it should, however, be pointed out that if certain young people under 18 actually had to work more than the number of hours allowed under the new act to finance their studies, it would be necessary to consider other means of funding more appropriate to the Luxembourg social model than child labour.
(5) Finally, it should be noted that henceforth the authority for all decisions, exemptions and authorizations or refusals under the provisions of the Protection of Young Workers Act will be held by the minister with labour among his responsibilities. This corresponds to the procedure generally followed within the framework of the labour legislation. The role of advisory and monitoring body will be left to the Factory and Mines Inspectorate and the Minister of Labour will request the opinion of various other bodies, including the occupational health services and the Ministries of National Education and the Family.
2. Drug abuse (art. 33)
264. Luxembourg
amended its legislation on the sale of medicinal substances and the fight
against drug addiction by Act of 27 April
2001. One of the main objectives of
the new Act is to establish a legal framework and to develop various activities
carried out within
the context of the treatment of drug addicts and the
reduction of the social and health risks associated with drug addiction
(distribution
of syringes for prophylactic purposes, substitution treatment
programmes, etc.).
Moreover, the criminal penalties for drug use have
been reduced. However, the new Act contains special provisions designed to
protect
the minor against the bad example of other users which might encourage
drug consumption. Thus, severer penalties are reserved for
persons who have
illicitly used drugs in front of one or more minors or with a minor. The
penalties are particularly heavy for staff
employed in schools, as teachers or
in any other capacity, who use drugs in school and, in general, for anyone who
commits a drug
trafficking offence in a teaching establishment or a social
services centre or in their immediate neighbourhood or in some other
place where
pupils or students pursue educational, sporting or social activities. If a minor
becomes seriously ill or dies, the persons
responsible for supplying the drug to
the minor will be liable to long terms of imprisonment, including life
imprisonment in the
event of the death of the minor.
265. Mention should
also be made of the valuable work being done by Abrigado, a mobile
psychological, medical and social intervention
group operating in the immediate
vicinity of the central station in Luxembourg City. Working from vans, the
members of the group
take in male and female prostitutes, drug addicts, and
homeless people and direct them to the specialized services. The group
participates
in the methadone and anti-AIDS action
programmes.
3. Sexual exploitation and sexual abuse (art.
34)
266. The sexual exploitation and abuse of children were dealt
with in paragraphs 722 to 747 of the initial report. In particular,
the report
dealt with indecent assault, rape and incest, the prostitution or corruption of
young people, public decency offences
and the use of children in the production
of pornographic material.
267. Considering that trafficking in human
beings and the sexual exploitation of children also constitute inhuman and
degrading treatment
and an important and serious form of international crime,
the Act of 31 May 1999 strengthening the measures against trafficking in
human
beings and the sexual exploitation of children and amending the Criminal Code
and the Code of Criminal Procedure stiffened
the law on the protection of
minors, adapted and supplemented certain provisions of the Criminal Code, and
extended the application
of Luxembourg law for all sexual offences committed
abroad by a Luxembourg national or resident (article 5-1 of the new Code of
Criminal
Procedure).
Thus, henceforth, article 379 of the Criminal Code
makes punishable not only, as in the past, acts of incitement to immorality,
prostitution
or corruption of young people but also all offending conduct
intended to facilitate or encourage the depravation, prostitution or
corruption
of a minor under the age of 18. Likewise, the above-mentioned Act of 31 May 1999
made punishable the exploitation of a
minor under the age of 18 for purposes of
prostitution and the production of pornographic performances or materials, as
well as
trafficking in minors for purposes of exploitation.
Moreover, the
Act supplemented, inter alia, article 379 bis of the Criminal Code, which
punishes, in particular, the hiring, enticement or inducement of a person, even
if consenting,
with a view to prostitution or immorality, by extending the cases
of aggravation of the penalty of imprisonment for which the previous
text
already provided to cover not only the case in which the victim has been hired,
enticed or induced fraudulently or with the
aid of violence, threats or abuse of
authority or any other means of coercion and that in which the victim has
actually been delivered
up into prostitution but also the case in which the
perpetrator of the offence has exploited a person in an especially vulnerable
situation due, in particular, to illegal or provisional administrative status,
pregnancy, illness, disability or physical or mental
deficiency.
Finally,
the same Act introduced a new article into the Criminal Code (article 384) which
punishes the possession of paedophilic material
involving or depicting minors
and increases all the penalties applicable.
268. Sexual harassment,
regarded as degrading treatment, is now also punishable under the terms of the
Act of 26 May 2000 concerning protection against sexual harassment in a
working environment and amending various other laws. The legislature has
thus displayed its intention effectively to combat sexual harassment, a form of
social violence, through national
labour legislation.
269. A specialized
multidisciplinary intervention unit known as “Info Viol - Sexual
Abuse”, an extension of the activities
of the “Info Viol”
hotline, has been operating since 1 December 1999. This new unit consists of
professionals such as
doctors, psychologists, psychotherapists, social workers,
pedagogues, teachers (graduates) from various associations and services
involved
in the prevention of sexual abuse and the treatment, ambulatory or otherwise, of
victims and their families. The various
partner associations network within the
context of the project initiated and supported by the Ministry of the Family,
Social Solidarity
and Youth. The aim is to assist professionals (teachers,
educators, health professionals and social workers) who, suspecting the
sexual
abuse of a child victim, seek advice on how to proceed.
In this context,
the ad hoc committee on the rights of the child has published an information
note on reporting the suspected sexual
abuse of a minor, for the benefit of
professionals in the education and social assistance
sectors.
270. Finally, it should be recalled that on 6 September 2000, on
the occasion of the United Nations Millennium Summit, the Government
signed the
Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography.
4. Sale,
trafficking and abduction of children (art. 35)
271. With regard to
this chapter, reference should be made to paragraphs 748 and 749 of the initial
report.
Moreover, a draft framework decision dealing specifically with
this issue is in the process of being drawn up in the Council of the
Union.
D. Children belonging to a minority and indigenous children (art. 30)
272. With respect to this paragraph, reference should be made to
paragraphs 242 to 247 (Refugee children) of this report.
December 2001
Annexes
− Act of 19 July 1997 supplementing the Criminal Code by modifying the definition of the offence of racism and creating the offence of revisionism and other conduct based on illegal discrimination
− Act of 27 July 1997 amending certain provisions of the Civil Code, the Code of Civil Procedure, the Code of Criminal Procedure and the Administration of Justice Act
− STATEC document - Population on 1 January 2000
− Act of 31 May 1999 strengthening the measures against trafficking in human beings and the sexual exploitation of children and amending the Criminal Code and the Code of Criminal Procedure
− Amended Protection of Young People Act of 10 August 1992
− Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields
− Grand-Ducal Regulation of 18 December 1998 implementing articles 1 and 2 of the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields as regards the governmental accreditation of managers of services for disabled persons
− Grand-Ducal Regulation of 16 April 1999 on the accreditation of managers of reception centres, with accommodation, for children and young adults
− Grand-Ducal Regulation of 8 December 1999 on the accreditation of managers of services for the elderly
− Grand-Ducal Regulation of 14 January 2000 establishing the conditions and formalities for the accreditation of family placement assistance services provided for by the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields
− Grand-Ducal Regulation of 9 January 2001 implementing articles 1 and 2 of the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields as regards the governmental accreditation of managers of services for adults, single or with children
− Grand-Ducal Regulation of 29 March 2001 establishing the conditions and formalities for the accreditation of the activity of receiving and accommodating, by day and/or by night, more than three and fewer than eight minors at a time, in the home of the person carrying on the activity, provided for by the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields
− Grand-Ducal Regulation of 20 December 2001 implementing articles 1 and 2 of the Act of 8 September 1998 governing relations between the State and organizations working in the social, family and therapeutic fields as regards the governmental accreditation of managers of day care facilities for children, without accommodation
− Grand-Ducal Regulation of 28 January 1999 on the accreditation of managers of services for young people
− Grand-Ducal Regulation of 19 March 1999 on the accreditation of managers of services for girls, women and women with children
− Act of 12 February 1999 concerning the implementation of the national plan of action for the promotion of employment 1998
− Protection of Young Workers Act of 23 March 2001
− Act of 28 June 2001 on the burden of proof in cases of discrimination based on sex
− Voluntary Service Act of 28 January 1999
− Act of 24 April 2000:
- − adapting the domestic law to the provisions of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, approved by Act of 31 July 1987;
- − transposing certain recommendations made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;
- − amending certain provisions of the Criminal Code and the Code of Criminal Procedure;
- − amending the amended Extradition of Foreign Criminals Act of 13 March 1870;
- − amending the amended Alien Entry and Residence Act of 28 March 1972;
- − concerning the medical examination of foreigners;
- − concerning the employment of foreign labour.
− Judgement No. 7/99 of the Constitutional Court
− Judgement of the Court of Appeal (guardianship) of 15 March 2000
− Act of 29 April 1999 creating a right to a guaranteed minimum income
− Act of 8 December 2000:
- − concerning the prevention of overindebtedness and introducing a collective debt settlement procedure in cases of overindebtedness;
- − amending Book 1, Title 1, Article 4 of the New Code of Civil Procedure.
− Act of 22 June 2000 concerning State financial assistance for higher education
− Act of 1 August 2001 on the protection of pregnant workers and workers who have recently given birth or are breastfeeding
− Act of 14 April 2002:
− approving the Hague Convention of 29 May 1993 on Protection of Children and
Co-operation in Respect of Intercountry Adoption;
− amending certain provisions of the new Code of Civil Procedure, and;
− introducing article 367-2 of the Criminal Code.
− Accessibility of Public Premises Act of 29 March 2001
− Act of 28 April 1998:
− harmonizing musical education in the commune sector;
− amending article 5 of the Employment Contract Act of 24 May 1989;
− amending the amended Civil Service Salaries Act of 22 June 1963.
− Act of 30 July 1999 concerning:
− the status of the independent artist and the casual show business worker;
− the promotion of artistic creation.
− Act of 18 March 2000:
− creating a temporary protection regime;
− amending the amended Act of 3 April 1996 creating a procedure for the examination of asylum applications.
------------------
[1] The Act of 25 July 2002 establishing a Luxembourg committee on the rights of the child, known as the “Ombuds-Comité fir d’Rechter vum Kand” (ORK), was passed by the Chamber of Deputies on 11 June 2002.
[2] Act of 14 April 2002:
- approving the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption;
- amending certain provisions of the new Code of Civil Procedure; and
- introducing article 367-2 of the Criminal Code.
[3] The Act of 25 July 2002 establishing a Luxembourg committee on the rights of the child or “Ombuds-Comité” (ORK) was passed by the Chamber of Deputies on 11 June 2002. Articles 2 and 3 of the draft have been retained in the legal text.
[4] Act of 17 July 2002 on the protection of persons with respect to personal data processing.
[5] This agreement was signed in January 2002.
[6] Act of 14 April 2002:
- approving the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption;
- amending certain provisions of the new Code of Civil Procedure; and
- introducing article 367-2 of the Criminal Code.
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