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On December 17th 2008, the Portuguese-language newspaper Contacto owned by the media conglomerate Saint-Paul Luxembourg, published an article on children custody rights in Luxembourg. In the article, the citizens interviewed, named 2 teenagers in cases handled by Mr. Kapitene of the office of the general prosecutor (SCAS).
On January 5th 2009, Mr. Kapitene filed a criminal complain. On January 30th 2009, an investigative judge opened at the request of the prosecutor of Luxembourg, an investigation for “slander” (art.443 of the penal code) and for revealing the name of the 2 teenagers (art.38 Law August 10th 1992).
On March 30th 2009, the investigative judge Scheer ordered the police to search* the Contacto office (art. 65 of the code of criminal procedure) “to identify the offender” described as the “journalist of Contacto who wrote the article“. On May 7th 2009, 3 police officers searched the office of Contacto and seized documents and computer files on CD and USB flash drive. According to the European Federation of Journalists (EFJ), the police officers didn’t inform the Council of Press in violation of the directive of March 28th 2006 on article 7-a) of the Code of ethics.
On May 20th 2009, the tribunal rejected secretly the motion of Saint-Paul Luxembourg to suppress the search*. On October 27th 2009, the appeal court confirmed the secret ruling*.
On April 26th 2010, Saint-Paul Luxembourg filed an application with the ECHR on the ground that the police search of Contacto office was a violation of articles 8 and 10 of the Convention. On December 5th 2011, the application was communicated to the agent of Grand Duchy of Luxembourg with questions to be answered within 16 weeks. The applicant is represented by Me Patrick Kinsch (Luxembourg).
* : On January 10th 2012, Ms. Catherine Fabeck of the office of the prosecutor general (CREDOC) informed us that the order of the investigative judge and the rulings of the tribunal and appeal court were all “secret” and couldn’t be communicated to ECHR News.
On March 17th 2011, Mr. Joseph Etute detained at the prison of Sandweiler (CPL), received a letter of the Court dated March 9th 2011. The letter was already opened. The applicants complained to the prison officials who apologized. They explained to the Ombudsman of Luxembourg, ECHR ex-Judge Fischbach (1998-2003) that it was their policy to open all large envelope and parcel received by detainees.
Under executive order of March 29th 1989 of unelected Grand Duke Jean, the right to correspondence of detainees is severely restricted. Under article 219, convicted detainees require an authorization of the director of the prison to write to anyone other than their family, lawyers, Luxembourg officials (judges, prosecutors, public servants, congressmen and the head of state) and consulate officers. The content of the letters can only be about family and private matters and cannot contain any “allegation” or “accusation” (art. 221).
The prison officials can routinely open all the letters and read them (art.223) except for the letters to lawyers and Luxembourg officials. The director of the prison can censor and seized any letter which he considers in violation of article 221 (art.224 and 225). The investigating judge can read all letters of detained suspect (art.218) and can order suspension of his right to correspondence except to his lawyer (art.226). Detainees in disciplinarian cells have also their right to correspondence automatically suspended except to their lawyers, Luxembourg officials and consulate officers (art.199)
On April 2nd 2011, Mr. Etute filed an application with the ECHR arguing that the opening by prison officials of his correspondence with the Court was a violation of article 8 of the Convention. On May 6th 2011, the applicant received a letter of the Court dated April 11th 2011. The letter was already opened. On June 27th 2011, he received another letter of the Court already open, dated June 17th 2011.
On December 5th 2011, the Court communicated the application to the agent of Grand Duchy of Luxembourg with questions to be answered within 16 weeks. On December 22th 2011, the minister of Justice Bilgen announced a bill on the rights of detainees. But article 31 on the right of correspondence still doesn’t authorize detainees to have a private correspondence with the European Court of Human Rights (see below).
On October 26th 2010, the press office of the European Court of Human Rights has confirmed that all interim measures applications (art. 39 of the rules of the court) requesting a suspension of a deportation order (under Dublin regulation) of an asylum seeker to Greece are currently granted.
This policy will be in effect until a ruling of the Court in the case M.S.S v. Belgium and Greece (30696/09). A public hearing on the case took place on September 1st 2010.
None of the French N.G.O (ASSFAM, La Cimade , Forum Réfugiés, France Terre d’Asile, Ordre de Malte France and Anafe) mandated by the French government to provide legal assistance to asylum seekers in immigration detention centers answered our e-mail for comments.