Prawo w Luxemburgu.

System prawny w Luxemburgu- wersja w języku angielskim

Table of Contents:

1. Sources of Law
· Constitution
· Codes and Statutes
2. Legal System
3. Judiciary
4. Judges
5. Judicial System

· The Ordinary Courts
3 Justices of the Peace
2 District Courts
Supreme Court of Justice
Court of Cassation
Court of Appeal

· The Administrative Courts
Administrative Tribunal
Administrative Court

· The Constitutional Court
· Arbitration Tribunal and National Insurance Board
· Military Tribunals

6. Proceedings
· Civil Proceedings
· Criminal Proceedings

7. Death Penalty
8. Police
9. Legal Profession and Legal Aid
10. Bibliography





1. Sources of Law

Constitution

The supreme source of law is the Constitution. The constitution has been revised several times (last revised in 1972) since its proclamation in 1868. The Constitution comprises 120 articles, divided into 11 chapters. It deals with the constitutional provisions of the Grand Duchy, the fundamental rights and duties of individual citizens and the organization of public bodies. It is superior to the ordinary law and to executive regulations, which have to be conform to the Constitution. Luxembourg’s constitution vests sovereignty in the people and upholds a traditional range of liberties.
Chapter VI of the Constitution concerns Judiciary.

Codes and Statutes

The primary sources of law are Codes and Statutes. The main codes are the Civil Code (Code civil), Commercial Code (Code de Commerce), Penal Code (Code penal), Criminal Procedure Code (Code d'instruction criminelle), and Civil Procedure Code (Code de procdure civile).



2. Legal System

Legal system is based on civil law system; accepts compulsory ICJ (International Court of Justice) jurisdiction. Luxembourg law is based upon Roman law. As such, it is comparable with, for example, the German and French systems but not with the Anglo-American system.

The administrative law is made up of many separate laws based primarily on the French and Belgian legal systems.

Civil and criminal law is mainly based on the Napoleonic code, although significant modifications have been made. Code civil, (Civil Code); Code de Commerce, (Commercial Code); Code pnal, (Penal Code); Code d'instruction criminelle, (Criminal Procedure Code) and Code de procdure civile, (Civil Procedure Code)- in spite of modifications remains faithful to the Code Napoleon. French Penal Code was abandoned in 1814 and replaced in 1879 by a codification based on the Belgian law of 1867.

Commercial law is essentially based on a modified version of French commercial law.

Tax law is mainly based on German tax legislation from after World War II.

An increasing amount of legislation has its source in European Union regulations, directives and decisions.


3. Judiciary

The judiciary is independent from the executive and the legislature. Justice is rendered in the name of the Grand Duke by the courts and the tribunals (Constitution Article 49). Judgments and decisions are required to be reasoned, are pronounced in public court session and are enforced in the name of the Grand Duke.


4. Judges

Justices of the peace and judges of the civil, commercial and criminal courts are appointed for life directly by the Grand Duke, who acts on the advice of the Superior Court of Justice for the appointment of members of the Superior Court of Justice and presidents and vice-presidents of the district courts.

The magistrates of the Administrative Tribunal and the Administrative Court are nominated by the Grand Duke, on the advice of the Administrative Court (for members of the Administrative Court) and of the president and vice-presidents of the Administrative Tribunal (for the Administrative Tribunal).

No judicial appointees may be deprived of their posts or suspended, save by a judicial decision.



5. Judicial System

The judicial system of the Grand Duchy of Luxembourg is divided into:

· The Ordinary Courts for the civil and criminal cases:
3 Justices of the Peace
2 District Courts
Supreme Court of Justice:
Court of Cassation
Court of Appeal

· The Administrative Courts for the administrative cases:
Administrative Tribunal
Administrative Court

· The Constitutional Court

· Arbitration Tribunal and National Insurance Board

· Military Tribunals




The Ordinary Courts

Justices of the Peace
There are three Justices of the Peace, one in Luxembourg, one in Esch-sur-Alzette (judicial district of Luxembourg) and one in Diekirch (judicial district of Diekirch).
In civil and commercial cases, Justices of the Peace hear all cases over which they have been given jurisdiction by the new Code of Civil Procedure or by other statutory legislation; they have jurisdiction at last instance up to a value of 750 Euros, and subject to appeal, up to a value of 10 000 Euros.
They hear certain cases such as, for example, garnishee orders for attachment of earnings, pensions and annuities, as well as being responsible for the distribution of amounts raised by such orders up to the amount of the debt.
As a rule, the action is brought before Justices of the Peace by the issue of a summons served by a bailiff. A certain number of cases are brought by filing an application with the office of the Clerk of the Court. Parties appear before Justices of the Peace either in person or through a representative. This representative may be a lawyer, the spouse, parents or persons related in direct line, or parents or persons related in collateral line up to and including the third degree of kinship, as well as persons working exclusively in the service of the given party or his business.
All Justices of the Peace have jurisdiction in industrial disputes and the power to adjudicate in disputes relating to employment contracts and apprenticeship agreements. Appeals are referred to the Supreme Court of Justice

District Courts
The country is divided into two judicial districts and each has a District Court, one in Luxembourg and the other in Diekirch.
The two District Courts are divided into sections consisting of three judges; each District Court has its own department of public prosecution comprising a State Prosecutor and assistant prosecutors. Examining judges at each of the District Courts are responsible for preparing criminal cases for trial, as well as misdemeanours.
In civil and commercial cases, the District Court hands down decisions in ordinary law and tries all cases other than those falling expressly within the competence of another jurisdiction in view of the nature or the amount of the claim.
It has exclusive jurisdiction to hear cases which, due to their nature, are specifically assigned to it by law. It alone can hear applications for authority to execute judgments handed down by foreign courts and legal instruments received from the hands of foreign persons entitled officially to make them. District Courts also exercise inherent jurisdiction, for example in regard to adoption, guardianship, emancipation, etc.
The District Court hears appeals against judgments given at first instance by Justices of the Peace operating within the Court’s judicial district.
Proceedings before the District Court are as a rule initiated by the issue of a writ, served to the defendant by a bailiff.
The presidents of the District Courts, or the magistrates appointed in their stead, hear interlocutory applications and as such are called upon to make interim orders in urgent cases, both civil and commercial.
District Courts exercise criminal jurisdiction as Criminal Courts. They have jurisdiction in all lesser indictable offences, that is to say all offences punishable by penalties for misdemeanours, as well as all acts classed as major offences under the law, that are referred to them by the court in chambers or the court in chambers of the Court of Appeal. Defendants must appear in person, except where the punishment for the offence is no more than a fine, in which case they may be represented by a lawyer.
As a rule, representation by a barrister or solicitor is compulsory before the District Court, though the law does permit certain exceptions, for example in commercial cases and summary applications for an interim order, when the parties may argue their own cases.

Supreme Court of Justice
At the top of the hierarchy of the judicial branch stands the Supreme Court of Justice, which comprises the Court of Cassation, a Court of Appeal and State Prosecutor's Office.
The Court of Cassation, comprising a bench on which five judges sit, is primarily responsible for hearing cases seeking to overturn or set aside decisions given by the various benches of the Court of Appeal and judgments by courts of last resort. Representation by a barrister or solicitor is compulsory.
The Court of Appeal consists of nine benches, each consisting of three judges. It hears civil, commercial and criminal cases and cases decided by the industrial tribunals in the country’s two judicial districts. Representation by a barrister or solicitor is compulsory, except in criminal cases and summary applications. The criminal bench of the Court of Appeal hears appeals against judgments by the criminal bench of the District Court. This bench consists of five judges.


The Administrative Courts

Administrative Tribunal
The Administrative Tribunal, sitting in Luxembourg, decides on appeals in cases of incompetence, acting in excess of authority, improper exercise of authority, breaches of the law or of procedures designed to protect private interests, appeals against administrative decisions in respect of which no other remedy is available in accordance with laws and regulations, and against administrative measures having a regulatory character, irrespective of the authority from which they emanate. As a rule, it also has power of decision in disputes relating to direct taxation and local authority charges and taxes.
Appeals against decisions of the Administrative Tribunal can be lodged with the Administrative Court.
The Administrative Tribunal can arbitrate in appeals against decisions by the Head of Administration for direct contributions in cases where the law relating to such matters provides for such appeals.

Administrative Court
Unless otherwise provided by law, appeals can be lodged with the Administrative Court, which sits in Luxembourg, against decisions given by the Administrative Tribunal exercising its authority to set aside decisions delivered in relation to administrative measures of a regulatory nature. The Administrative Court also acts as a trial and appeal court in proceedings against decisions of other administrative courts that have heard applications to reopen proceedings where special laws grant jurisdiction to these courts.
All lawyers entitled to plead before the courts of the Grand Duchy are equally entitled to plead before the Administrative Court; however, “lawyers included in List I” of the roll drawn up each year by the Bar Councils have the right to implement investigative measures ordered by the investigating judge and participate in procedural formalities (= legal representation)
The State is represented before the Administrative Court by an official or by a lawyer


Constitutional Court

The Constitutional (Court established in 1997) decides by way of judgment on the conformity of particular laws with the Constitution, excepting those, which sanction Treaties. When a party raises a question as to the conformity of a law with the Constitution before a judicial court or an administrative tribunal, the court is obliged to refer the case to the Constitutional Court, unless, in its opinion: a) a decision on the question raised is not crucial to its being able to deliver a judgment, b) the question is completely without foundation, c) the Constitutional Court has already given judgment in a case where the issue at stake was the same.

The Constitutional Court is composed of the President of the Superior Court of Justice, the President of the Administrative Court, two counselors of the Court of Cassation and five magistrates nominated by the Grand Duke upon the joint opinion of the Superior Court of Justice and Administrative Court


Arbitration Tribunal and National Insurance Board

All disputes relating to National Insurance and having to do with affiliation or qualification, contributions, administrative fines and benefits, with the exception of those covered by Article 317 or relating to Articles 147 and 148 of the National Insurance Code, are decided by the Arbitration Tribunal and, on appeal, by the National Insurance Board. Decisions handed down at last instance by the Arbitration Tribunal, as well as adjudications of the National Insurance Board, can be referred to the Court of Cassation.

The law also regulates the organization of the jurisdictions pertaining to labor and social.


Military Tribunals

Special laws regulate the organization of military tribunals, their duties, and the rights, obligations, and terms of office of their members.



6. Proceedings

Civil proceedings

Can I bring a court action by myself or do I have to ask an intermediary, such as to be represented by a solicitor?
The answer depends on the size of the amount at stake. Broadly speaking the breakdown is as follows, though there are specific exceptions laid down by law:

If the dispute involves less than 10 000 euros, it will normally be dealt with by a Justices of the Peace. In these courts, you may appear in person or be represented by a lawyer or someone duly authorised (special power of attorney).
If the dispute involves more than €10 000, the case will normally go to the District Court. Here you must be represented by a recognised barrister, except in summary procedures and actions conducted under commercial procedure, where you may appear in person or be assisted or represented. Before the Supreme Court of Justice (= appeal court), you must be represented by a barrister.

Certain cases, even if the amount involved is more than €10 000, fall within the jurisdiction of the Justices of the Peace, e.g. labour law disputes, disputes between those leasing and taking leases on buildings, applications under the law on debt, applications for maintenance, except where connected with an application for divorce or separation. In these cases, the parties may bring the action themselves, frequently by addressing a written request to the judge (= simplified procedure, which is less costly than going to the District Court) and appear in person before the magistrate.

Who exactly do I apply to: to the reception office or the office of the clerk of the court or any other administration?
The answer depends on which of the above categories your case falls into.
For actions under point 1, parties can apply direct to the Justices of the Peace responsible for their area (in practical terms you submit your application to the clerk of the court.
For actions under point 2, parties must normally apply to a lawyer, who will issue a summons to the opposing party on behalf of his client via a bailiff. The lawyer will submit the papers lodging the case to the appropriate District Court or the Supreme Court.

In which language can I make my application? Can I do it orally or does it have to be in writing? Can I send my application by fax or by e-mail?
In court proceedings French, German or Luxembourgish may be used, subject to specific provisions concerning certain types of case. In practice, French is the language most widely used.
With a few very rare exceptions for certain cases heard by magistrates (e.g. applications for payment orders), applications to the courts must be made in writing. Documents sent by fax or e-mail are not admissible.

Are there special forms for bringing actions, or, if not, how must I present my case? Are there elements that have to be included in the file?
Generally speaking, the answer depends on which category your case falls into. In some specific cases there are forms to fill in. As a rule, submissions to magistrates, applications or summonses to the District Courts and the files submitting appeals to the higher courts must include certain compulsory formulas and follow a specific format; otherwise they will be declared void. There are no ready-made forms for these purposes.

Will I have to pay court charges? If so, when? Will I have to pay a lawyer right from the introduction of my application?
As a rule legal charges are payable when the action ends. The judge may also order a deposit or guarantee to be paid by one or more of the parties to the proceedings (e.g. where the court calls for an expert opinion) The legal fees payable to the lawyer by his client are a matter for agreement between them. In practice, it is customary to pay the lawyer a retainer.


Criminal proceedings

In criminal proceedings, Justices of the Peace discharge the functions of police magistrates. In this capacity they are called upon to decide on petty offences or breaches of the law punishable by fines of between 25 and 250 Euros, as well as offences that the law classes as misdemeanours, which the court in chambers refers to Magistrates’ Courts.
In addition, they hear cases concerning offences punishable by penalties exceeding the levels normally applicable to petty offences but which the law grants them the right to decide. Judgments handed down by Magistrates’ Courts can always be challenged by an appeal. The time allowed for lodging notice of appeal is forty days counting from the date judgment is delivered or, if delivered by default, from the date of its personal service or service at a person’s ordinary address. The appeal will be heard by the Criminal Court.
District Courts exercise criminal jurisdiction as Criminal Courts. They have jurisdiction in all lesser indictable offences, that is to say all offences punishable by penalties for misdemeanours, as well as all acts classed as major offences under the law, that are referred to them by the court in chambers or the court in chambers of the Court of Appeal. The criminal bench of the Court of Appeal hears appeals against judgments by the criminal bench of the District Court.



7. Death Penalty

The Grand Duchy of Luxembourg had completely abolished the death penalty for all crimes in 1979. Abolished for all crimes except certain military and politician offences.



8.Police

Under the terms of the law of bearing 31 May 1999 creation of a body of Large-Ducal Police Force and a General Inspection of the Police force, the Gendarmerie and the Police force are joined together within only one body since January 1, 2000.

To discover the origins of the Police force (local or communal at the beginning), it is advisable to go up very far in our national history. And if, with the wire of the centuries, it is difficult even impossible to make the light on the roots of the Police force.

The police may, with the permission of the public prosecutor, place a person under arrest if the police has reasonable grounds for suspicion which could justify him/her to be charged. The person can be detained for a maximum period of 24 hours without being charged. An arrested person has the statutory right to be assisted by a list I or list II lawyer and must be informed accordingly by the police before being questioned. An arrested person may also ask the police to notify a named person. An arrested person may be searched , but only by a person of the same sex as the person to be searched.
The police in Luxembourg are armed.



9. Legal Profession and Legal Aid

Like physicians or architects, attorneys exercise a liberal and independent profession. All the attorneys established in Luxembourg are registered in a professional organization called the Luxembourg Bar Council. The Luxembourg Bar Council is closely involved in the evolution of the profession and it makes certain that it adapts to the various changes occurring in society. Situated in the heart of Europe, the Grand Duchy of Luxembourg, an independent state with a population of some 450,000 inhabitants, is characterized by certain peculiarities which are reflected in both its judiciary (pertaining to justice and its administration) and juridical aspects (pertaining to the law).

The attorney advises in judicial or contentious matters, assists or represents his clients in court, defends their cause, analyzes facts, informs on judicial facts, makes out contracts and negotiates transactions. Given his training and experience, he can basically be consulted and intervene in all judicial matters. However, as legal rules are getting increasingly numerous and complex, attorneys tend to specialize in specific legal fields. This allows them to engage in preferential activities

Lawyers in Luxembourg are admitted either to the Bar of Luxembourg City or to the Bar of Diekirch. Lawyers inscribed on list I are allowed to appear before any court. Lawyers on list II must, for specific matters, be assisted by a list I lawyer. List I lawyers have accomplished a 3-year period of instruction ("stage") and passed a final exam after having received their law degree from a university. List II lawyers have not accomplished their stage or have not yet passed the final exam.

Organization of the Bar Council
In Luxembourg the Bar Council was established in 1810. It is presided over by the btonnier (president of the Bar Council) whose name goes back to the 13th century, when the head of the Bar Council was also the bearer of its banner
In the Grand Duchy of Luxembourg, there are two distinct Bars Councils: one is located in Luxembourg and the other in Diekirch. The two are independent of each other and there is no hierarchy between them. It should be noted that the Disciplinary and Administrative Council and the Disciplinary and Administrative Council of Appeals are common to the two Bar Councils.
Currently there is no longer a specific chamber for avous (sollicitors) in the Grand Duchy. Following the merger of the functions of solicitor and attorney, the latter are empowered to represent a client in a law-court, in addition to their mission of providing legal advice.
The president and the members of the Council Committee (Conseil de l'Ordre) , whose number varies according to the relative importance of the Bar, are elected annually by all the attorneys gathered in a general assembly. Under the chairmanship of the President of the Bar Council, the Council Committee is in charge of maintaining the principles of dignity, probity and tact that should govern the profession. In the first instance, disciplinary power is exercised by the Disciplinary and Administrative Council, which is made up of five attorneys elected by their peers. In appeal cases it is the Disciplinary and Administrative Council of Appeals which is in charge. It is composed of two magistrates and one attorney (registered on List 1).




A profession governed by specific rules
In return for the monopoly granted to him by the law, the attorney must exercise his profession in compliance with the very strict rules of conduct prescribed by both the statute of 10 August 1991 regarding the profession of attorney and the internal regulations of the Council Committee. It is the Council Committee which watches over the attorney's compliance with these rules of conduct. As a result the client benefits from serious guarantees- his case is treated by a professional who is both competent and subject:
-The attorney may not represent parties with conflicting interests.
-The attorney is subject to the obligation of secrecy.
-Verbal and written communication between attorneys must remain confidential.
-The attorney must refrain from canvassing or soliciting clients.
-The attorney must apply a sensible mode of billing under the control of the Council Committee.
-The relationship between the attorney and his client is a privileged one


Legal Aid
A natural person of insufficient means can obtain legal assistance or legal advice from a lawyer for a specific case.
It is the Council Committee's mission to provide legal aid to persons who are not in a position to find an attorney for their defense or whose financial means are insufficient to cover the costs of their defense. This lack of financial resources is assessed in relation to the income and the fortune of the person seeking assistance and the persons living with him in legal community.

Under the terms of the law, the access to legal aid on the national territory is not restricted to Luxembourg citizens, but extends to a wide range of persons. It applies to the nationals of every state of the European Union, to the foreigners allowed to settle in the Grand Duchy, to the foreigners put on the same footing as the Luxembourg citizens by virtue of an international agreement, and finally to all other foreigners involved in procedures regarding right of sanctuary, right of stay, right of establishment, right of access to or removal from the national territory.

Legal aid may also be granted to any other alien with insufficient means in proceedings relating to aliens’ rights of asylum, entry, residence, establishment and expatriation.

Legal aid is granted in both judicial matters and non-judicial ones, in contentious matters as well as in non-contentious ones, in lawsuits as well as in defense cases. It should be noted, however, that legal aid is refused to all persons whose case seems clearly inadmissible, unfounded or disproportionate to the costs to be covered.
Let's point out finally that, except in the case of conflicting interests or prevention, the attorney appointed by the Council Committee is bound to carry out his mandate of legal aid.



10. Bibliography:

Encyclopedia Brianica
http://europa.eu.int/comm/justice_home/ejn/org_justice/org_justice_lux_en.htm
http://jurist.law.pitt.edu/world/lux.htm#Courts
http://www.barreau.lu/eng/eng_regles.html
http://www.greekorthodoxchurch.org/wfb2002/luxembourg/luxembourg_chiefs.html
http://www.luxcentral.com/
http://www.theodora.com/wfb2003/luxembourg/luxembourg_government.html
http://www.un.org/documents/ecosoc/docs/1995/e1995-78.htm