Funds received by the Ministry of Foreign Affairs for activities carried out in developing countries by ECPAT Luxembourg to combat child sexual exploitation

Country/region	2011	2012	2013
Latin America
Latin America (regional)	32 691
Brazil	300 000
Southern Asia
Bangladesh	111 730
India		91 502	23 821
Nepal I	157 203
Nepal II		221 250
Pakistan I	90 379
Pakistan II	269 545
Africa
Burkina-Niger		250 080
Madagascar	188 421
Mali III	291 943		263 013
Senegal	134 716	25 478	8 874
Total	1 576 628	588 311	271 887

153.The Ministry of Foreign Affairs also co-finances the administrative expenses of ECPAT Luxembourg (66 per cent of a ceiling of eligible expenses).

(16)

(a)

154.The sale of children, as defined in article 2 of the Optional Protocol, is not regulated as such by the Criminal Code, with the exception of the provisions relating to the personal status of children. (arts. 361 and ff. of the Criminal Code).

The sale of children for the purposes of

1.The sexual exploitation of a child is punishable under the following articles of the Criminal Code: Article 379 (Incitement to immorality); Article 379 bis (Procuring of minors); Article 382-1 (1) (Human trafficking), combined with article 382-2 (2), which establishes that the commission of the offence against a minor is an aggravating circumstance that increases the penalty;

2.The transfer of a child’s organs for profit is punishable under the following articles of the Criminal Code: Articles 382-1 (3) (Human trafficking), combined with article 382-2, which establishes, among other things, that the commission of the offence against a minor is an aggravating circumstance that increases the penalty;

3.The engagement of a child in forced labour, is punishable under the following articles of the Criminal Code: Article 382-1 (2) (Human trafficking), combined with article 382-2, which establishes, among other things, that the commission of the offence against a minor is an aggravating circumstance that increases the penalty;

The sale, in the context of inducing consent, as an intermediary, for the adoption of a child, does not appear to be regulated in conformity with the definition set out in article 2 of the Optional Protocol. The sale of a child for the purposes of adoption may, at most, be prosecuted on the basis of article 363 of the Criminal Code, which relates to the replacement of a child with another child, combined, where appropriate, with the abduction of a minor, but there is no specific offence on the sale of children, whether or not it occurs in the context of adoption.

(b)

155.The act of offering, obtaining, procuring or providing a child for child prostitution may be prosecuted under Criminal Code articles 379 and 379 bis, or article 382-1, combined with article 382-2 (Human trafficking).

(c)

156.The act of producing, distributing, disseminating, importing, exporting, offering, selling or possessing child pornography, as defined in article 2, for the purposes of child prostitution, are punishable under articles 379-2, 383 and 383 bis, of the Criminal Code.

157.Article 363: Concealment of birth, substitution of a child or attributing a child to a woman who has not given birth: imprisonment for a term of 5 to 10 years (Cf. Annex 1: Criminal Code, part VII, chap. III).

158.Articles 379 to 382: Exploitation of prostitution and procuring — penalties are prescribed according to the gravity of the offence: imprisonment for a term of 1 to 5 years and a fine (attempt is punishable); imprisonment for a term of 5 to 10 years and a fine if the offence is committed against a minor under the age of 16 (Cf. Annex 1: Criminal Code, part VII, chap. VI).

159.Articles 382-1 to 382-3: Human trafficking: Imprisonment for a term of 5 to 10 years or 10 to 15 years and a fine (Cf. Annex 1: Criminal Code, part VII, chap. VI-I).

160.Articles 382-4 to 382-5: Smuggling of migrants: Imprisonment for a term of 5 to 10 years and a fine (Cf. Annex 1: Criminal Code, part VII, chap. VI-I).

161.Articles 383 to 385 bis: Public indecency and specific provisions aimed at protecting young persons. Depending on the severity of the offence, the penalty can range from imprisonment for a term of no less than 8 days to no more than 5 years. Attempts to commit some of these offences are also punishable (Cf. Annex 1: Criminal Code, part VII, chap. VII).

162.Aggravating circumstances: the Luxembourg Criminal Code does not recognize any general aggravating circumstances. The following provisions are prescribed for offences that relate to the implementation of the Optional Protocol:

“Article 380. (Act of 16 July 2011) The minimum penalty prescribed by articles 379 and 379 bis shall be increased in conformity with article 266, and the maximum penalty may be doubled if: (Act of 21 February 2013)

(1)The commission of the offence has, deliberately or owing to grave negligence, endangered the life of the victim; or

(2)The offence was committed by exploiting the particularly vulnerable situation of a person, particularly as a result of his or her unlawful or precarious administrative status, unsettled social situation, pregnancy, illness, disability or physical or mental deficiency; or

(3)The offence was committed by means of the threat or use of force or other forms of coercion, abduction, fraud or deception; or

(4)The offence was committed by means of the offer or acceptance of payments or perks in order to obtain the consent of a person with authority over the victim; or

(5)The offence was committed by a legally recognized, natural or adoptive ascendant of the victim or by a person who has authority over the victim or who abuses the authority vested in him or her by virtue of his or her position; or

(6)The offence was committed by an officer or pubic official, a person exercising public authority or a law enforcement official in the exercise of his or her functions.

Article 381. (Act of 1 April 1968) In the cases referred to in articles 379 and 379 bis, persons who are found guilty shall also be liable to a fine of €251 to €15,000 and to deprivation of the rights set out in article 11 (1), (2), (3), (4), (5) and (7).

The courts may, for a period ranging from 1 month to 10 years, ban any person who is sentenced to a prison term of at least 1 month, from assuming the management or continuing to work as owner or manager of a hotel, boarding house or employment agency, or to be employed in them in any capacity whatsoever. Any infringement of this ban shall be punished by imprisonment for a term of 8 days to 1 month and a fine of €251 to €5,000, or by only one of these penalties.

(Act of 21 February 2013) In the cases referred to in paragraph 1, as well as in those referred to in articles 382-1 and 382-2, the courts may also ban convicted persons, either for life or for a maximum period of 10 years, from exercising any occupational, volunteer or social activity involving regular contact with minors. Any infringement of this ban shall be punished by imprisonment for a term of 2 months to 2 years.

If, in the cases referred to in paragraph 1, the offence was committed by the minor’s father or the mother, the guilty party shall also be deprived of any rights and benefits granted to him or her by the Civil Code in book I, part IX entitled “Parental authority”, in relation to the person and property of the child.”

163.It should be noted that the recidivism provisions laid down in articles 54 to 57-3 of the Criminal Code are also applicable. (Cf. Annex 1: Criminal Code, book I, chap. V).

(d)

164.Cf. Annex 2: Articles 637 and 638 of the Code of Criminal Procedure. The statute of limitation for prosecution is 10 years for serious offences and 5 years for ordinary offences.

(e)

165.There are no specific provisions to be noted here. With regard to the implementation of the Optional Protocol, the offences defined in the following chapters of the Criminal Code may be considered as pertinent: part III of the Criminal Code, chapter IV (Kidnapping of minors), chapter V (Indecent assault and victims of rape), chapter VI (Exploitation, prostitution and procuring), chapter VI-I (Human trafficking) and chapter VII (Public indecency and specific provisions for the protection of young persons). (Cf. Annex 1: part III of the Criminal Code).

(f)

Attempted offences

166.In accordance with article 52 of the Criminal Code, attempted offences are punishable by the penalty immediately below that prescribed for the offence itself. In accordance with article 53 of the Criminal Code, an attempt to commit an offence that is characterized by law as an ordinary offence is punishable only if expressly prescribed by law.

Complicity

167.According to the provisions of article 66 of the Criminal Code, complicity is punishable as set out below:

“The following persons shall be punished as accomplices in a serious or ordinary offence:

Persons who give instructions to commit an offence;

Persons who procure weapons, tools or other means used to commit a serious or ordinary offence, knowing that they are intended to be used for that purpose;

Persons who, except in the case described in article 66, paragraph 3, knowingly aid or abet the perpetrator or perpetrators of a serious or ordinary offence in preparing, facilitating or committing the offence.”

168.Furthermore, article 69 provides that “Accomplices in a serious offence incur the penalty immediately below that which that they would have incurred had they been perpetrators according to the scale set out in article 52 of this Code. The penalty incurred by accomplices in an ordinary offence shall not exceed two thirds of that which they would have incurred had they been perpetrators.”

Joint principals

169.Article 66 stipulates that:

“The following persons shall be punished as principals of a serious or ordinary offence:

Persons who execute or cooperate directly in its execution;

Persons who, by any means, provide any form of assistance without which the offence could not have been committed;

Persons who, by means of donations, promises, threats, abuses of authority or power, plots or deliberate deception, directly provoke the offence;

(Act of 8 June 2004) Persons who, whether by means of speeches made at meetings or in public places, or signs or posters, or printed or other written material that is sold or distributed, directly incite its commission, without prejudice to the final two provisions of article 22 of the Act of 8 June 2004 on the freedom of expression of the media.”

(17)

170.There is no legislation in force that Luxembourg considers to constitute an obstacle to the implementation of the Optional Protocol.

(18)

171.The criminal responsibility of legal persons is defined in chapter II-1 of the Criminal Code and may be engaged in relation to any offence under the Criminal Code or special statutes. This definition applies to serious and ordinary offences committed on behalf and in the interest of a legal person. Provisions stipulating penalties may be applicable in cases of human trafficking and procuring in terms of increasing the fine (article 37 of the Criminal Code). In certain cases, an order may also be made to dissolve the legal person.

172.Moreover, articles 379 ter and following of the Criminal Code prescribe a procedure for the temporary shutdown of an establishment in cases where the acts described in article 379 bis are likely to have been committed.

173.Lastly, there may be administrative consequences relating to the issuance of business permits by the Ministry of the Middle Classes, Tourism and Housing.

(19)

(a), (b), (d), (e)

174.Cf. Annex 1: Articles 363, 367-2 and 368 of the Criminal Code. Annex 5: Articles 343 to 370 of the Civil Code (part VIII — Adoption). Annex 6: Compilation of special statutes: Legislative and regulatory provisions relating to adoption, including international agreements.

175.Article 367-2 of the Criminal Code prescribes a penalty of imprisonment for a term of 8 days to 1 year and a fine for anyone who derives undue financial gain from an activity related to an adoption. According to article 361 of the Criminal Code, “any person who, having been present at a birth, fails to register the newborn child in conformity with articles 55, 56 and 57 of the Civil Code, shall be subject to imprisonment for a term of 8 days to 3 months and a fine of €2,000, or to only one of these penalties”. Article 368 prescribes a penalty of imprisonment for a term of 1 to 5 years for anyone who, by force, threats or deception, kidnaps a child or arranges for a child to be kidnapped. Article 363 prescribes a penalty of imprisonment for a term of 5 to 10 years for anyone found guilty of concealing the birth of a child, substituting a child for another or attributing a child to a woman who has not given birth.

176.Part VIII of the Civil Code contains numerous provisions on simple and full adoption. Article 343 stipulates that adoption can take place only if there are reasonable grounds for proceeding and only if it offers advantages for the adoptee. In accordance with articles 356 and 367-3 of the Civil Code, prospective adoptees who are older than 15 years of age must personally consent to their adoption.

(c)

177.The Act of 31 January 1998 on the Accreditation and Obligations of Adoption Agencies prescribes the conditions that such agencies must meet in order to obtain State accreditation in order to act as an intermediary in matters of intercountry adoption as defined in the Hague Convention. In Luxembourg, only non-profit legal persons may obtain such accreditation.

(f)

178.Adoption agencies that have been accredited in accordance with the provisions of the Act of 31 January 1998 are financed by the State and cannot charge any fees for their services to persons who request an adoption. Failure to comply with this principle results in a reduction of the State’s financial contribution in the amount of the fees charged, the revocation of the funding agreement, and ultimately, the closure of the agency. Expenses for services rendered by third parties, such as the training of adoptive parents or translation of the case file, are charged to the adoptive parents.

(20)

179.(Intentionally left blank)

(21)

(a) and (b)

180.Cf. Annex 1. Articles 379 to 379 bis, 380 and 383 to 386, of the Criminal Code.

181.Articles 379 to 379 bis concern exploitation, prostitution and procuring, the victims of which are minors under the age of 18. The penalty prescribed for these offences is imprisonment for a term of 1 to 5 years and a fine. The Act also stipulates that attempts to commit these offences are punishable. Article 380 of the Criminal Code recognizes aggravating circumstances for violations of articles 379 and 379 bis and stipulates that the maximum penalty of 5 years’ imprisonment may be doubled if one of the prescribed aggravating circumstances is applicable in a particular case.

182.Articles 383 to 386 of the Criminal Code concern public indecency and contain special provisions intended to protect young persons. The penalties prescribed differ depending on the gravity of the offences: the penalty of imprisonment is set at a term of no less than 8 days and no more than 5 years. In all cases, a penalty of imprisonment may be accompanied by a fine.

(c) and (d)

183.No particular information or comment.

(22)

184.Application of the principles of territoriality, of active personality for perpetrators of an offence committed abroad and of passive personality for victims of an offence suffered abroad: Annex 1: Article 3 of the Criminal Code; Annex 2: Articles 5, 5-1, 7, 7-1 and 7-2 of the Code of Criminal Procedure.

(23)

185.Application of the principles of active personality for perpetrators of an offence committed abroad and of passive personality for victims of an offence suffered abroad: Annex 2: Articles 5, 5-1, 7, 7-1 and 7-2 of the Code of Criminal Procedure.

(24)

186.The rules applicable to extradition are set out in national legislation, as well in multilateral and bilateral agreements.

187.It should be noted that national laws concerning extradition are subordinate to treaties concluded with other States and therefore apply only in the absence of a treaty with the State in question.

National legislation

The Extradition Act of 20 June 2001 (Cf. Annex 7);

Act of 17 March 2004 on the European Arrest Warrant and Surrender Procedures between Member States of the European Union.

Multilateral conventions

13 December 1957 — European Convention on Extradition;

15 October 1975 — Additional Protocol to the European Convention on Extradition;

27 June 1962 — Treaty between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands concerning Extradition and Mutual Assistance in Criminal Matters;

14 June 1985 — Schengen Agreement and its implementing Convention;

10 March 1995 — Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on simplified extradition procedure between the Member States of the European Union, signed at Brussels;

27 September 1996 — Convention drawn up on the basis of Article K.3 of the Treaty on European Union, relating to extradition between the Member States of the European Union, signed at Dublin;

Act of 18 December 2007 — on approval of the United Nations Convention against Transnational Organized Crime, adopted by the United Nations General Assembly in New York on 15 November 2000.

Bilateral treaties

Bilateral treaties have been concluded with Australia, Belgium, Germany, the United States of America and the United Kingdom of Great Britain and Northern Ireland.

188.Note: The rules governing the European Arrest Warrant are applicable in matters of extradition between European Union member States. Extradition cases involving States non-members of the European Union are resolved pursuant to existing bilateral or multilateral treaties. The aforementioned Extradition Act of 20 June 2001 is applicable in all other extradition cases.

189.Since the entry into force of the Optional Protocol on 18 January 2002, Luxembourg has not received an extradition request for anyone suspected of having committed an offence covered by that instrument, whether on the basis of a European Arrest Warrant or a treaty concluded with a non-member State of the European Union. Likewise, Luxembourg has not requested the extradition of any person in connection with an offence covered by the Optional Protocol.

(25)

190.For international agreements: Cf. reply given in section (24).

191.Note: The rules governing the European Arrest Warrant are applicable in matters of extradition between European Union member States. Extradition cases involving States non-members of the European Union are resolved pursuant to existing bilateral or multilateral treaties. The aforementioned Extradition Act of 20 June 2001 is applicable in all other extradition cases.

(26)

(a)

192.A general procedure of attachment is applied in such matters. It consists of the following: the seizure of objects, documents or belongings that were used to commit the offence, that were intended to be used to commit it or that were the object of the offence; anything that appears to have resulted from the offence; anything that appears to be useful for elucidating the truth or whose use would be likely to hinder the progress of the investigation; and anything liable to confiscation or restitution.

193.This measure applies in cases where a serious or ordinary offence is discovered while it is being committed or immediately thereafter (cf. Annex 2, art. 31, Code of Criminal Procedure) or in the event a judicial investigation is ordered by an investigating judge (cf. Annex 2, art. 66 of the Code of Criminal Procedure).

194.Immovable property may also be seized (cf. Annex 2, art. 66-1 of the Code of Criminal Procedure) by decision of the investigating judge.

195.The seizure of bank accounts is provided for under articles 66-2 and following of the Code of Criminal Procedure (cf. Annex 2). The list of acts to which the articles relating to the seizure of bank accounts are applicable include: human trafficking, procuring, prostitution and exploitation of human beings, within the meaning of articles 379 to 386 of the Criminal Code (cf. Annex 1).

196.The confiscation of the property referred to previously is carried out in accordance with article 31 of the Criminal Code (cf. Annex 1, art. 31).

197.There are no particular comments to make with regard to practice in this area. Practice is in keeping with the prescribed legal provisions.

(b)

198.Seizure and confiscation of the proceeds derived from the commission of such offences:

Same as item (a), with the additional stipulation that both indirect seizure and indirect confiscation may be carried out, particularly when the offences covered by the Optional Protocol are primary offences relating to money laundering, including the offences defined in articles 368 to 370, 379, 379 bis, 382-1, 382-2, 382-4 and 382-5 of the Criminal Code (cf. Annex 1, art. 32-1 of the Criminal Code).

(c)

199.Closure of premises and international mutual legal assistance

Temporary closure is governed by article 379 ter of the Criminal Code, and permanent closure by article 379 septies of the Criminal Code (cf. Annex 1, arts. 379 ter and 379 septies);

International mutual legal assistance in criminal matters is provided on the basis of international mutual assistance treaties (European Convention on Mutual Assistance in Criminal Matters of 1959, Schengen, conventions adopted at the European and international levels);

The procedure for registering the judgements handed down under the criminal law of other States is governed by articles 659 and following of the Code of Criminal Procedure; it is followed when acts covered by the Optional Protocol are at issue (cf. Annex 2, arts. 659 and ff. of the Code of Criminal Procedure).

(27)

(a)

200.The principle of the best interests of the child is reflected in several pieces of legislation that apply to child witnesses or victims:

The Act of 20 December 1993 providing for the approval of the Convention on the Rights of the Child, which was adopted by the United Nations General Assembly on 20 November 1989, and for the amendment of certain provisions of the Civil Code, in order to insert between chapters I and II of book I, part X, of the Civil Code, a chapter I-1 entitled “Court hearings involving children and the defence of their interests”, which contains an article 388-1 stipulating that “in all proceedings that concern him or her, a minor may, without prejudice to the provisions governing his or her intervention or consent, be heard by the judge or the person designated for this purpose, provided that the minor’s age or condition so permit. In addition, “A minor’s request for a hearing may be denied only on the basis of a specially reasoned decision. This decision may be appealed only in conjunction with the decision on the merits of the dispute. Minors may be accompanied by a person of their choice.” (Cf. Annex 5, art. 388-1 of the Civil Code);

The Act of 5 June 2009 providing for (1) the amendment of article 37-1 of the amended Legal Profession Act of 10 August 1991; (2) book I, part X, chapter I, of the Civil Code; and (3) article 1046 of the new Code of Civil Procedure; amended article 388-1 of the Civil Code to read:

“Article 388-1.

(1)In all proceedings that concern him or her, a minor capable of discernment may, without prejudice to the provisions governing his or her intervention or consent, be heard by the judge or, when his or her interests require it, the person designated by the judge for this purpose.

(2)This hearing shall be granted as a matter of right when requested by a minor. In the event a minor refuses to be heard, the judge shall assess the merits of such refusal.

(3)Minors may be heard alone or accompanied by a lawyer or a person of his or her choice. If this choice does not appear to be in keeping with the interests of the minor, the judge may designate another person.

(4)Hearings of minors shall take place in the judge’s chambers.

(5)The hearing of a minor shall not confer on him or her the status of a party to the proceedings.”

201.Article 388-2 was inserted after article 388-1 of the Civil Code and reads:

“Article 388-2. In the event that, during a proceeding, a minor’s interests appear to be in opposition to those of his legal representatives, the guardianship judge or the presiding judge shall, in accordance with the conditions laid down in article 389-3, appoint an ad hoc administrator to represent the minor.” (Cf. Annex 5, arts. 388-1 and 388-2, of the Civil Code).

202.Article 37-1 of the amended Legal Profession Act of 10 August 1991 was amended to read:

“Applicant minors involved in judicial proceedings shall be provided with legal assistance independently of the financial situation of their parents or of persons living in the same household with them, without prejudice to the State’s right to demand reimbursement of the expenses it incurs in providing legal assistance to the minor from his or her father or mother who have the means to pay for it.”

203.Article 18 of the amended Youth Protection Act of 10 August 1992 reads as follows:

“In all other cases, where dictated by the interests of the minor, the juvenile court judge shall appoint an attorney for the minor. If a juvenile court appoints an attorney for a person who claims to be entitled to legal aid and requests such aid, the court shall refer the request to the chairman of the bar. The juvenile court may also refer to the chairman of the bar in cases in which an attorney has been appointed for the minor.”

204.In order to complement the apparatus for the protection of children’s (procedural) rights, the Act of 6 October 2009 on Strengthening the Rights of Victims of Criminal Offences provided for the insertion of an article 41-1 in the amended Youth Protection Act of 10 August 1992, which reads as follows:

“Art. 41-1. The public prosecutor or the examining judge, having under consideration acts committed intentionally against a minor, shall designate an ad hoc administrator chosen from the court’s list of lawyers published by the bar association, where the interests of the minor are not fully protected by at least one of his or her legal representatives. The ad hoc administrator shall protect the interests of the minor and, where appropriate, exercise the rights of the plaintiff on his or her behalf.”

(b)

205.Although there are no specific cases to report, it is worth noting that the 1992 Youth Protection Act (cf. Annex 8) is the applicable legislation. Temporary custody may be ordered by the State Counsel’s Office in an emergency in the absence of the youth court judge, or by the youth court judge at the request of the State Counsel’s Office. The police may be ordered by the State Counsel’s Office to carry out the measure in cases where it is deemed necessary for the child’s safety. The care setting is chosen as a function of the child’s age, the nature of the acts in question and the child’s family ties or other relations.

206.The procedure for bringing a perpetrator to justice varies according to the facts and circumstances at issue. Except in the case of a serious or ordinary offence that is discovered while being committed or immediately thereafter, for which the public prosecution service is authorized to make an immediate arrest and to undertake a house or other type of search and seizure, the procedural options available to the examining judge before whom the matter is laid by means of a written accusation presented by the public prosecutor include the following: a summons for the alleged perpetrator to appear before the investigating judge; a warrant to bring the suspect before the investigating judge or public prosecutor immediately and the subsequent issuance of a detention order; or court supervision subject to stringent conditions. If the person cannot be located, the examining judge issues a European Arrest Warrant or an international arrest warrant and reports the person through the Schengen system and/or to Interpol for the purpose of obtaining his or her arrest and extradition to Luxembourg.

(c)

207.Child victims or witnesses are not kept in police or detention facilities since they are not accused persons. Specific provisions are applicable to minors, as described in items (a) and (b). These provisions are intended to ensure respect for the best interests of child victims and witnesses, inasmuch as they include hearings, as a matter of right, of minors who request them; hearings held in camera; or the possibility of a making a sound or audiovisual recording of a minor’s hearing.

(d)

208.No specific requirements for temporary placement. The legal framework is similar to that described in item (b).

(e)

209.See item (a).

210.With regard to the rights of the child, mention should be made of bill No. 6562, which strengthens the rights of victims of human trafficking and incorporates Directive 2011/36/EU. This bill also contains provisions concerning the rights of child victims of human trafficking.

(f)

211.See item (a) for information on the progress made in relation to the right of children to express themselves.

212.Note should also be taken of article 48-1 of the Code of Criminal Procedure concerning the procedure to be taken in hearings of minors who are victims of the offences covered by the Optional Protocol (cf. Annex 2, art. 48-1 of the Code of Criminal Procedure).

(g)

213.The Central Social Assistance Service (SCAS) is a department of the Principal State Counsel’s Office, and is therefore part of the judicial administration.

214.It operates under authority conferred by the court and under the supervision of the Principal State Counsel, which means that it takes instruction only from the courts and the judicial administration.

215.There is one exception: any victim of an offence may apply directly to the Victim Assistance Service.

216.The Central Social Assistance Service ensures compliance with judicial decisions in accordance with laws, regulations or provisions on probation, youth protection, guardianship, article 100 of the Criminal Code and measures for the enforcement of sentences (such as electronic bracelets), parental authority, divorce, character reports, etc. Its psychologists, criminologists and probation officers, who have undergone training as social workers, oversee and assist defendants and bring a social and psychological dimension to the justice system.

217.In its capacity as investigator and executant of the Juvenile Court, the youth protection service sees itself as a defender of the rights of the child. It conducts investigations for the juvenile court judge with full impartiality, free of any ideology and with diligence. The same is true of its work in the area of educational assistance, the aim of which is the child’s well-being.

(h) and (i)

218.There are no special provisions in Luxembourg law on a witness protection programme, whether for adults or minors.

219.It is nevertheless important to stress that, with regard to the protection of victims of any of the offences covered by the Optional Protocol, the security of children has been strengthened, inasmuch as, in practice, the name and identity of the minor are not revealed in either summons to hearings, or conviction or acquittal judgments or decisions.

220.If the minor is a victim of one of the constituent offences of human trafficking (Cf. Annex 1: arts. 382-1 and 382-2 of the Criminal Code), the provisions of the Act of 8 May 2009 on Assistance, Protection and Security of Victims of Human Trafficking amending the new Code of Civil Procedure are applicable. In accordance with article 2 of this Act, and with a view to the victim’s physical, psychological and social rehabilitation, he or she is granted, in accordance with his or her needs, a lodging and social and socio-educational, material, financial, medical, psychological or therapeutic assistance.

221.Article 3 of the Act further provides that a victim who is an unaccompanied minor of foreign nationality and who is not under the legitimate care of a responsible adult who ensures his or her safety and protection is to be represented by a guardian as long as this situation continues or until such time as the minor is placed under the responsibility of an authority of his or her country of origin who must act in the minor’s best interests.

(j)

222.The internal organization and degree of specialization at all levels of intervention in a case means that each case is handled with diligence:

Police: Criminal Investigation Service — youth protection section: specialized investigators are trained in interviewing techniques for child victims;

State Counsel’s Office — youth protection department: judicial officers are specialized and receive training;

Investigating judges are specialized in the field;

Juvenile court judges are on call for emergencies relating to the placement of a child.

(28)

(a)

223.In cases where the victim’s precise age is not known, an X-ray is taken of the victim’s hand in order to help make a more precise determination of his or her age. However, no special institution is responsible for performing these exams. Minors are placed under the care of a general practitioner, a paediatrician or a doctor specializing in radiology so that the necessary exams for determining his or her age can be carried out.

(b)

224.When there is doubt as to the age of a person who might be a minor, he or she is automatically considered to be a minor and is eligible for all the protection measures provided for in the Convention on the Rights of the Child.

(c)

225.The X-ray exam is performed by a qualified radiologist.

(29)

226.See section (27) above, including the answers to items (f) and (j).

227.To this may be added the establishment of courts with competence to ensure the best interests of the child, the number of judicial officers assigned to handling cases involving child victims (7/30) and investigators with a specialization in this field who work in the Criminal Investigation Service or the regional criminal research and investigation services of the Police, whose work focuses exclusively on the judicial processing of such cases.

(30)

(a)

228.The appointment of an ad hoc administrator or children’s attorney was described in 27 (a) above.

(b) and (c)

229.Please see articles 48-1 and 79-1 of the Code of Criminal Procedure (cf. Annex 2, arts. 48-1 and 79-1 of the Code of Criminal Procedure) concerning the mandatory hearing of child victims.

230.Article 48-1 of the Code of Criminal Procedure provides that, with the authorization of the State Counsel, an audio or audiovisual recording may be made of the hearing of any minor. Such recordings may be made only with the consent of the minor, provided that he or she has the necessary level of discernment, or failing this, with the consent of his or her legal representative.

231.Article 79-1 of the Code of Criminal Procedure provides that the same provisions are likely to apply in cases being handled by an investigating court.

(d)

232.Information is provided to the child by his or her ad hoc administrator or children’s attorney.

(e)

233.Please see article 76 of the Code of Criminal Procedure, which stipulates that children under the age of 15 are to be heard without being placed under oath (cf. Annex 2, art. 76 of the Code of Criminal Procedure).

234.Articles 48-1 and 79-1 of the Code of Criminal Procedure (cf. Annex 2, section 27 (f)) above), set forth the rules for hearings of child victims. They also address conflicts of interest and the means for resolving them.

(f)

235. Certain associations enjoy the right to sue for damages in criminal proceedings in cases involving a minor who is a victim of human trafficking. Please see article 3-1 of the Code of Criminal Procedure for details of this procedure (cf. Annex 2, art. 3-1 of the Code of Criminal Procedure).

(31)

236.Judicial officers of the youth protection department of the State Counsel’s Office and juvenile court and guardianship judges follow training programmes at the Legal Service Training College of France.

237.The investigators of the Criminal Investigation Service undergo training in interviewing techniques and child psychology in Switzerland, Germany and Belgium.

(32)

238.No attacks or threats have been registered.

(33)

239.Such measures do not exist.

(34)

240.Currently, there are no public or private programmes designed to provide social reintegration assistance to child victims of sale, prostitution and pornography, since the needs of such children are currently provided for under the general framework of child protection, in application of the Youth Protection Act, and there is no specific or pre-established approach taken with regard to child victims of trafficking. Unaccompanied foreign children are assigned an ad hoc guardian as soon as possible (article 92 of the amended Act on Free Movement and Immigration and article 3 of the Act on Assistance, Protection and Safety of Victims of Human Trafficking) to assist them, if necessary, in criminal proceedings initiated against traffickers. As the supervisory staff of the reception centres where these children are placed have not been trained specifically to assist victims of trafficking, the children are assisted by the Human Trafficking Victim Support Service of the association Femmes en Détresse.

241.This service provides psychological support, assistance in completing formalities (legal, judicial, police, hospital, embassy, etc.) and information on the human trafficking victims’ rights, judicial and administrative procedures and available benefits (safe accommodation, judicial assistance, etc.). In addition, this service contacts NGOs in the victim’s country of origin in the case of voluntary return.

242.Girl victims of human trafficking are provided accommodation at the Meederchershaus (Femmes en Détresse), the Foyer Noémi or the Refuge Péitrusshaus (Solidarité Jeunes), where they are looked after by the educators of the respective homes.

243.Since 2010, the Human Trafficking Victim Support Service has been looking after four girls between the ages of 14 and 18, including three victims of human trafficking for the purposes of sexual exploitation and one for the purposes of labour exploitation (restaurant catering and domestic work). The four girls were provided accommodation at the Meederchershaus or in one of the foster homes of the Solidarité Jeunes Association. They were looked after and assisted by educators in these shelters, as well as by staff members of the Human Trafficking Victim Support Service. One girl returned to her country of origin, another went to Belgium, one lives and works in Luxembourg and one is still living in a shelter.

244.The Fondation Maison de la Porte Ouverte operates two foster/temporary homes, the Don Bosco, which has a capacity for 10 adolescents, and the St. Joseph, which can accommodate up to 9 child or adolescent victims of sale, prostitution or pornography.

245.The consultation and accommodation services of Pro Familia Fondation are also ready to receive child victims of human trafficking, but so far they have not received any definitive requests.

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246.Such measures do not exist in the national legislation.

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(a)

247.We do not have exact figures for this.

248.It should be noted, however, that, on the basis of the principle of the equality of all persons before the law, which is enshrined in the Constitution of Luxembourg, no distinction is made between the assistance provided to children who are or are presumed to be nationals of the State party and those who are not or whose nationality is unknown. In addition, article 454 of the Criminal Code prohibits any form of discrimination based on nationality and prescribes criminal sanctions for failure to comply with this provision. (Cf. Annex 1, art. 454 of the Criminal Code).

249.One case of forced labour and one case of prostitution have been reported, and one case of child trafficking is currently under examination.

(b)

250.To date, there have been no repatriations of child victims.

(c)

251.No agreements on the repatriation of victims have been concluded.

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252.The procedural rules of common law are applied. Victims may lodge a complaint with an official of the Criminal Investigation Service, in accordance with article 11 of the Code of Criminal Procedure. Similarly, article 23 of the Criminal Code stipulates that the State Counsel is to receive complaints and reports of wrongdoing and to determine the appropriate course of action in response to them. Lastly, as provided for in article 56 of the Code of Criminal Procedure, victims may lodge a complaint and sue for damages in criminal proceedings before the competent investigating judge (cf. Annexes 1 and 2).

(a)

253.No, victims cannot obtain compensation under civil law unless the perpetrator has been found guilty of the criminal charges brought against him or her.

(b)

254.The child’s right to counsel: The Act of 5 June 2009, amending the Legal Profession Act of 10 August 1991, provides that a minor involved in legal proceedings is automatically entitled to receive legal assistance, regardless of the financial circumstances of his or her parents. This provision will certainly facilitate children’s access to the services of an attorney.

255.In addition, article 18 of the Youth Protection Act of 10 August 1992 provides that a juvenile court may appoint an attorney to defend the interests of a minor in all cases in which the interests of the minor so dictate.

256.This article is interpreted as having a general scope. This means that the juvenile court judge can appoint a lawyer not only where a minor is involved in judicial proceedings relating to youth protection but also in any other proceedings in which a minor is involved.

257.Public prosecutors regularly invoke article 18 in order to request the juvenile court judge to appoint an attorney or an ad hoc administrator for child victims of abuse or sexual abuse, so as to ensure that they are assisted and represented by an attorney in the criminal proceedings brought against the perpetrator.

258.This procedure has recently been facilitated by the entry into force on 1 January 2010 of the Victims of Criminal Offences Act of 6 October 2009. Article 32 of the Act supplements the 1992 Youth Protection Act with an article 41-1, whereby the State Counsel or the investigating judge, being called upon to examine wilful offences committed against a minor, may appoint an ad hoc administrator to defend the minor’s interests and represent him or her in court.

(c)

259.Not applicable.

(d)

260.There is no difference between the applicable procedures.

(e)

261.Not applicable.

(f)

262.Please refer to articles 637 and 638 of the Code of Criminal Procedure (cf. Annex 2, arts. 637 and 638 of the Code of Criminal Procedure), which stipulate that, for the offences defined in articles 372 to 377, 379 and 379 bis, 382-1, 382-2, 400, 401 bis, 402 and 405 of the Criminal Code (cf. Annex 1), the statutory limitation for prosecution starts running from the date on which the victim reaches the age of majority.

(g)

263.Application of the rules on guardianship, as set out in articles 389 and following of the Civil Code (cf. Annex 5, arts. 389 and ff. of the Civil Code). Article 450 of the Civil Code stipulates that the guardian must administer the minor’s property as would a good father and answer for any damages resulting from its mismanagement. According to article 457 of the Civil Code, the guardian must obtain the prior approval of the board of guardians before carrying out legal transactions relating to the disposal of rights or property on behalf of the minor.

(h)

264.Not applicable.

(i)

265. In fulfilment of the principle of the equality of all before the law, the treatment afforded victims of the offences covered by the Optional Protocol is not different if they are non-nationals or possibly non-nationals, of Luxembourg.

(j)

266.No information is available on this matter.

(k)

267.The State considers the remedies and procedures in force to be sufficient to ensure the protection of the rights of children who are victims of the offences covered by the Optional Protocol.

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(a)

268.It should be noted that the Optional Protocol was ratified by the same enabling legislation as the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (known as the Lanzarote Convention). This legislation was signed on 7 July 2009 and entered into force for Luxembourg on 1 January 2012.

269.There are no bilateral or multilateral agreements to be noted.

(b)

270.Not applicable.

(c)

271.Not applicable.

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272.In order to step up cooperation in the fight against crime within the European Union, the Council set up Eurojust by means of Decision 2002/187/JHA. This is a body of the Union with legal personality that has competence regarding investigations and prosecutions of serious crime concerning at least two member States. The role of Eurojust is not only to promote coordination between competent authorities in various European Union member States, but also to facilitate the execution of requests and decisions relating to judicial cooperation. Eurojust may fulfil its task through one or more of the national members or as a college. Eurojust may, among other things, ask the authorities of the member States concerned to undertake an investigation or prosecution, set up a joint investigation team or take special or other investigative measures.

273.Mention should also be made of the establishment of the European Arrest Warrant, which is a judicial decision issued by the competent judicial authority of a European Union member State for the arrest and surrender of a wanted person by the competent authority of another member State for the purpose of conducting a criminal prosecution or enforcing a sentence or a security measure involving the deprivation of liberty.

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274.Luxembourg has for many years supported NGO activities in the areas covered by the Optional Protocol by means of its development cooperation.

275.In terms of the amount of funds allocated, its main partner is ECPAT Luxembourg. ECPAT Luxembourg focuses its efforts on three main areas:

In the North, and especially in Europe — the prevention of child sex tourism;

In the South — support for anti-poverty programmes in high-risk areas so as to prevent children from turning to prostitution;

Also in the South — the development of or support for programmes in favour of children and families affected by child prostitution, such as projects relating to education, psychosocial recovery and training.

276.The projects financed by development cooperation concern the regions of both the North and the South. They typically consist, on the one hand, of strengthening the protection of vulnerable children and young adults and preventing sexual abuse, exploitation and trafficking by offering a better social environment and specially adapted education and vocational training and by enhancing the response capacity of communities, and on the other, of establishing sustainable procedures for psychological and economic rehabilitation.

277.The Government’s partnership with ECPAT Luxembourg dates back to 1999.

278.In the past few years, Luxembourg has co-financed projects launched by ECPAT Luxembourg in countries of the South in the amount of an estimated annual average of €1 million.

279.Five projects are currently under way. They concern the following countries: Nepal, Mali, Benin, Burkina Faso, Niger, India and Senegal.

280.One example of a successful accomplishment is the regional project in Benin, Burkina Faso and Niger, which runs from 1 July 2011 to 1 July 2014 and which is being carried out in conjunction with the donors ECPAT France and the French Development Agency.

281.Some quantitative aspects:

50,000 people have been sensitized to the phenomenon of trafficking in these countries;

325 young people originally from or intercepted in these countries have been given access to some form of training;

15 crisis centres in these countries have placed 460 children in a foster family;

All partners have participated in workshops for exchanging experiences.

282.Some expected outcomes:

1,000 children will have been informed of their rights and receive training in how to protect themselves from trafficking and exploitation;

650 key persons will have been made aware of the issue of the talibe children;

Time spent living on the streets will have been reduced by 50 per cent for 150 young people;

160 children will have been enrolled in formal or non-formal education;

460 children will have been provided care at the 15 supported centres and will have subsequently been repatriated.

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283.Development cooperation is an important vehicle for outreach efforts undertaken abroad by Luxembourg. It is an expression of international solidarity and, at the same time, serves the common interests of both the State’s development partners and its own interest in mitigating, among others, the negative effects of poverty.

284.The vulnerability of children to sale, prostitution, pornography and sex tourism is clearly linked to the poverty of certain populations.

285.The main objective of Luxembourg in the area of development cooperation is to reduce and eventually eradicate poverty by providing support for the sustainable economic, social and environmental development of developing countries. This objective is met through both bilateral and multilateral efforts.

286.The above-mentioned vulnerability of children is also linked to the lack of legal mechanisms for protecting children from these scourges or the lack of means for implementing them effectively, and in some cases, the absence of the rule of law. For this reason, the cooperation provided by Luxembourg also acts in a cross-cutting fashion to promote human rights and strengthen good governance.

287.Luxembourg advocates the following:

The integration of human rights and governance in development cooperation efforts;

The integration of human rights, governance, democracy and the rule of law in the post-2015 development agenda;

Gender equality and the empowerment of women and girls.

288.Education and vocational training are among the chief focuses of the bilateral and multilateral cooperation programme of Luxembourg. Education and vocational training for children and young people, as well as the education of parents/adults, help to reduce young people’s vulnerability to sale, prostitution, pornography and sex tourism. Except for several bilateral programmes, education and vocational training are supported through multilateral efforts, and more specifically through significant contributions to the United Nations Children’s Fund (UNICEF), the United Nations Population Fund (UNFPA) and the International Labour Organization (ILO), among others. Another main focus of the cooperation programme of Luxembourg is health; interventions in this sector help to mitigate the health impact of children’s involvement in sexual acts. Health education and access to sexual and reproductive health services, but also to basic health services, are important factors in this area. Luxembourg is a major donor in the health sector, at both the bilateral and multilateral levels. As to interventions that have an impact on child victims of sale, prostitution, pornography and sex tourism, it should be noted that Luxembourg has made contributions to UNICEF, UNFPA, UNAIDS and the Global Fund.

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289.The Optional Protocol was signed by Luxembourg on 8 September 2000 and ratified by means of the Act of 16 July 2011 providing for its approval. Its instrument of ratification was deposited on 2 September 2011.