Default: disproportionate, imprecise – questionable for fundamental rights
The draft law 8426 For the so -called « Renforcé dismissal » is part of a security -political trend that increasingly puts human rights under pressure. This is what the President of the Consultative Human Rights Commission (CCDH), Noémie Sadler, says on Wednesday in a statement before the press. In addition, she admonishes that the planned measures are an expression of a repressive development that is based on a subjective feeling of security – not on objective facts. The increasing wealth of power of mayors in security -relevant questions also raised legal questions.
Mayor are not police officers or judges
CCDH lawyer Rhéa Ziadé warns in particular of the consequences of the dismissal. The measure is legally and practically problematic. According to the draft, the trigger can already be « disturbance of calm » or « nuisance of passers -by » – terms that, according to Ziadé, are « relatively vague » and allowed an application « in a very large number of situations ».
The door opens the door for arbitrary or discriminatory decisions – for example to young people, homeless and other vulnerable people. « The interpretation then depends on the subjective assessment of the police. » According to CCDH, a dismissal is only to be justified when behavior is serious. « It is not enough for a behavior to be bothered, shocked or annoyed, » emphasizes Ziadé. Countries like Germany were much more restrictive here.
Generous one-kilometer radius
The process – from the warning to the direction to the compulsory distance – also raise questions. According to the human rights convention, the use of coercion must remain “strictly limited”. « If it is not absolutely necessary, it violates human dignity. »
Criminal defense lawyer warn of expanded dismissal
The CCDH sees the intended radius of one kilometer critically – which often affects entire towns or districts in Luxembourg. « This is a strong restriction of freedom of movement. » The distance must be justified and understandable in individual cases.
The draft law does not create solutions – on the contrary.
Noémie sadler
President CCDH
It also remains unclear what the following applies during the 48 hours: is the mere return to the place already a new violation? Does any dismissal have to be documented? « How else can you protect the rights of those affected? » The exceptions – for example for residence or spouses – are « too restrictive » and left important realities of life.
The Almighty Mayor
In addition to the dismissal, the law provides for a ban on stay for public locations that are valid up to 30 days – as soon as a person stands out twice within 30 days. The mayor should make the decision. This is highly problematic for the CCDH.
Noémie Sadler: « In our view, the draft is not compatible with human rights and urgently needs to be revised. » Photo: Gilles Kayser
« This opens up a very wide scope for discretion – without clear criteria or judicial control, » warns Ziadé. Whether there are two similar incidents does not matter. The geographical scope is also « far too far », since only the ban is excluded for an entire community.
Attorney General criticizes planned dismissal
The CCDH also considers the duration – for up to 30 days. In Germany, for example, a judicial check from 14 days is mandatory. In the event of disregard, fines are at risk of up to 250 euros – or in prison if there is non -payment. « It has to be seriously questioned whether this is still proportionate. »
Liberty deprivation instead of legal protection
The lack of legal protection weighs particularly hard: If you want to file an objection, you have to go through the administrative court – including the compulsory lawyers and a long period of proceedings. « In practice, this is not an effective opportunity to complain, » says Ziadé. The CCDH therefore calls for a simplified, accelerated procedure without a lawyer compulsion.
Design for exacerbated dismissal falls through the State Council
There are also close exemptions here – for example in the residence or medical dates. But these are « not sufficient » and « did not reflect the individual reality of life ». According to the design, those affected do not even have to be informed about their rights.
« The draft law does not create any solutions-on the contrary, » added CCDH President Noémie Sadler. He was « not only imprecise and therefore the source of legal uncertainty, but also neither proportionately nor justified ». From the perspective of the human rights commission, the draft in its current form is « not compatible with human rights » – and must be fundamentally revised.
Similar objections to the State Council
As early as February, the State Council had rejected the draft law for a stricter dismissal. He criticized unclear terms such as « public calm » and « security » as too vague for interventions for fundamental rights. The annoyance regulation also arbitrary risk. The planned 30-day ban on stay is particularly problematic: it intervenes too much into bourgeois freedom and is not linked to a concrete hazard. In addition, there were no clear criteria for mayors. The State Council advised to delete the article on the ban on residence for the time being.
Four requirements for interventions for fundamental rights
In its statement, the consultative human rights commission (CCDH) reminds that interventions in fundamental rights – as the freedom of movement – are only permitted under strict conditions:
Legal basis: The restriction must be based on a law that is clearly, precise and predictable. The CCDH does not see this requirement in the current design.
Legitimate goal: An intervention is only allowed if it serves a recognized goal – such as the protection of public order. Even if this is permitted human rights, the CCDH warns of a questionable trend to use this argument more and more for repressive measures.
Need: The measure must be necessary. According to CCDH, however, reliable data, studies or evaluation are missing that prove the need.
Proportionality: The procedure must be in an appropriate relationship to the disorder. The Commission also does not see this requirement fulfilled.
Conclusion of the CCDH: These requirements are not met. In its current form, the draft law is not compatible with human rights – and must be fundamentally revised.
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