Sam Tanson, Luxembourg's Minister of Justice; Credit: SIP

On Wednesday 22 June 2022, Luxembourg's Minister of Justice, Sam Tanson, presented to the parliamentarians of the Justice Committee, the bill aimed at introducing into the Penal Code an aggravating circumstance for an act qualified as a crime or an offence committed on the grounds of one of the characteristics referred to in Article 454 of the Penal Code, namely, due to a distinction made between natural persons because of their:

  • origin;
  • skin color;
  • sex;
  • sexual orientation;
  • sex change;
  • gender identity;
  • family situation;
  • age;
  • state of health;
  • disability;
  • manners;
  • political or philosophical opinions;
  • trade union activities;
  • membership or non-membership, real or supposed, of a given ethnic group, nation, race or religion.

The recognition of these characteristics, protected as an aggravating circumstance of a crime or misdemeanor committed for a reason based on one or other of them, falls within the framework of the recommendations issued by the European Commission in the Strategy European Union (EU) for the fight against anti-Semitism and support for Jewish life, in order to be able to prosecute, in particular, anti-Semitic hate crimes. The Council of the EU expressed itself in the same direction on 2 March 2022 by adopting the "Conclusions on Combating Racism and Antisemitism".

In addition, Luxembourg thus responds to the recommendation of the European Commission against Racism and Intolerance (ECRI) to bring its criminal law into conformity by expressly providing that racist and homo/trans-phobic motivation constitutes an aggravating circumstance for any common law offence.

This bill is still part of the draft decision of the Council of the European Union aimed at including hate speech and hate crimes on the list of European offenses of article 83§1 of the TFEU in  order to promote the fundamental values ​​of the EU and to uphold the Charter of Fundamental Rights of the EU.

The generality of the provision is intended to indicate that all forms and manifestations of hatred and intolerance are incompatible with the values ​​on which the EU is founded, namely respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities, so that they are entitled to be criminalised regardless of their offence vector.

The circumstance, according to which the act qualified as a crime or misdemeanor was committed because of one or more characteristics referred to in article 454 of the Penal Code, thus causing greater harm to social cohesion, is such as to justify an increase in the penalty incurred by the introduction of an aggravating circumstance.