Luxembourg / Court of Cassation / Case no. 58/2017 (3868)

Country

LuxembourgLuxembourg

Title

Luxembourg / Court of Cassation / Case no. 58/2017 (3868)

View full Case

Year

2017

Decision/ruling/judgment date

Thursday, October 26, 2017

Crime type(s) concerned/related

Incitement to violence or hatred

Related hate bias motivation

Religion Ethnic origin

Groups affected

Muslims Migrants

Court/Body type

National Higher Court

Court/Body

Court of Cassation (Cour de Cassation)

Key facts of the case

Between October and November 2015, the accused distributed flyers in several municipalities in Luxembourg containing hate speech messages inciting to hatred against foreigners living in Luxembourg. Migrants in general, and Muslims in particular, were accused of destroying the country and its natural resources, negatively affecting Luxembourgish citizens' rights and living conditions. These groups were also accused of being responsible for the "end" of the Luxembourgish school system. The case was first reported by the Luxembourg Judicial Police.

Main reasoning/argumentation

The accused argued that he was acting in accordance with the law, in particular within the framework of the right to freedom of opinion and expression as set forth by Article 10 of the European Convention on Human Rights (ECHR). Furthermore, he claimed that his accusations were directed against the Luxembourgish government’s immigration policies, and not against migrants. The courts (i.e. first instance, court of appeal and court of cassation) dismissed his arguments and held that the messages distributed on the flyers were clearly directed against migrants in general, and against the Muslim community in particular, and consequently violated article 457-1 of the Criminal Code (incitement to hatred or violence).

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

Broad interpretation made of Article 457-1 of the Criminal Code, which covers racist and xenophobe comments. All three instances confirmed that the conviction of the accused for violation of article 457-1 of the Criminal Code (incitement to hatred or violence) had not been in breach of the accused’s fundamental right to freedom of expression as set forth by Article 10 of the ECHR.

Results (sanctions, outcome) and key consequences or implications of the case

The accused was convicted by the Court of first instance (judgment 1579/2016 of 26 May 2016) and sentenced to eight months of prison. The accused then appealed the decision and the Court of appeal transformed the sentence into a 7000 euros fine (judgment no. 596/16 V of 6 December 2016). The judgment was then upheld by the Court of Cassation.

Key quotation in original language and translated into English with reference details

"Les propos de X sont assurément de nature à donner une image inquiétante de la communauté musulmane dans son ensemble, ainsi que de la population étrangère en général, et à susciter, particulièrement parmi le public le moins averti, un sentiment de rejet, d'antagonisme et d'hostilité. Travesti sous l'apparence d'une critique politique du gouvernement, qui rentrerait dans l'exercice de la liberté d'expression, le pamphlet, pris dans son intégralité, contient en dehors de cette critique également des propos stigmatisant les étrangers, […]."

"The words of X are certainly likely to give a disturbing picture of the Muslim community as a whole, as well as of the foreign population in general, and to arouse, particularly among the least informed public, a sense of rejection and antagonism and hostility. Under the guise of a political criticism of the government, which would fall within the exercise of the freedom of expression, the pamphlet, taken in its entirety, contains besides this criticism also remarks stigmatizing the foreigners, […]."

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