Luxembourg / Court of Appeal / no. 87/20 V.

Country

Luxembourg

Title

Luxembourg / Court of Appeal / no. 87/20 V.

View full Case

Year

2020

Decision/ruling/judgment date

Tuesday, March 03, 2020

Incident(s) concerned/related

Incitement to violence or hatred

Related Bias motivation

Migrant status

Groups affected

refugees & asylum seekers

Court/Body type

National Court

Court/Body

Court of Appeal (fifth chamber) [Cour d'appel (cinquième chambre)]

Key facts of the case

On 8 September 2015 the Minister of Family and Integration published on Facebook a photo of herself surrounded by Syrian refugees with a comment explaining that a Syrian mother had asked her if her children could attend school in Luxembourg as it was important that her children could have future prospects. Through the BeeSecure platform the police were notified about the following comment underneath the Minister’s social media post: “... you should rather explain why our children are repeatedly beaten and robbed by migrant children (sic) or why migrant children are allowed to act publicly in schools with drugs, and the school management does nothing because it is worried about the image of the school or that teachers fear for their lives. You can also explain to us why OUR students are doing so badly in EVERY PISA STUDY? Could it be because there are 20 children of foreign origin with a migration background in each class with 25 children?”

Main reasoning/argumentation

The accused claimed that his remarks had not been directed against the children but against government policy. He argued that his comments constituted the expression of his opinion and that he had not exceeded the limits of his fundamental right to freedom of expression. He argued that the moral element of the offense was missing as well, as he had not had the deliberate will to provoke a reaction of hatred by the public towards refugees. The public prosecution argued that the accused had posted negative comments against a specific group of people, namely, the children of immigrants and, as such, his comments shall not be covered by the right to freedom of expression as set out in Article 10 of the ECHR.

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

The court held that freedom of expression must not go beyond its limits, thereby endangering the reputation and the rights of others. The remarks of the accused stigmatized and discriminated against a well-defined category of the population, namely, migrants or refugees that Luxembourg had decided to host. The moral element which the offense requires is the fact of wilfully provoking the public to a reaction of hatred or violence towards a person or group or a community. The court argued that the accused’s words had certainly been likely to give a disturbing image of the children of refugees or immigrants, and had created a feeling of mistrust, hostility, even hatred towards these migrant groups.

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

The accused was found guilty of incitement of hatred under Article 457-1 of the Criminal Code. He was sentenced to pay a €750 criminal fine.

Key quotation in original language and its unofficial translation into English with reference details

"Par ses propos de nature générale P1 a stigmatisé et discriminé une catégorie bien déterminée de la population habitant le Grand-Duché, à savoir les migrants ou réfugiés que le Luxembourg a décidé d’accueillir et qui se trouvent au centre de la crise «migratoire » que connaît l’Europe, et notamment leurs enfants, qui sont opposés aux enfants indigènes." "By his remarks of a general nature, P1 stigmatized and discriminated against a well-defined category of the population living in the Grand Duchy, namely the migrants or refugees that Luxembourg has decided to host, and who are at the centre of the “migratory” crisis that Europe has experienced. This relates in particular their children, who are set in opposition to indigenous children."

DISCLAIMERThe information presented here is collected under contract by the FRA's research network FRANET. The information and views contained do not necessarily reflect the views or the official position of the FRA.