11 July 2011 – Beginning of 2010, Chachipe received information about a discriminatory campaign of the Luxembourg police against Romanian Roma, who came to Luxembourg for the purpose of begging. In a TV report, which was broadcast by the national TV channel, RTL, a representative of the police of the city of Luxembourg regretted, that with the reform of the Luxembourgish immigration law, it was no longer possible to simply expel the Roma. She explained that the police had thus agreed with the Prosecutor to seize their money, if it was proven, that their begging was organised.
Chachipe subsequently tried to find out, what was understood by organised begging. Indeed, the Luxembourgish Penal code does not provide a definition of organised begging. It merely says, what is not considered as organised begging or “mendicité en reunion”. According to article 342 of this code, the fact of a husband and his wife or a father or a mother and their children are begging together is not considered as organised begging.
The organisation received contradictory replies from the Luxembourg police and the Prosecutor’s office. While the police persisted in its statement, that the begging was organised, for which it did not provide any proof or information, under the pretence of an ongoing investigation, the Prosecutor said quite clearly, that the charges according to which the begging was organised could not be upheld. In an interview with the Luxembourgish weekly, Le Jeudi, the Deputy Prosecutor contradicted allegations, according to which the beggars are being exploited by criminal networks.
In September 2010, Chachipe visited a group of Romanian Roma living in the French border town of Mont Saint Martin. As they are excluded from the French labour market, some of these Roma are regularly travelling to Luxembourg to beg. After some hesitations, they confirmed that they are regularly being arrested by the Luxembourg police, who are then confiscating their money. However, it appeared, that the beggars are not always fined.
Encouraged by Commissioner Reding’s courageous speech, stating that discrimination on ethnic grounds was incompatible with European values, Chachipe sent a letter of concern to the EU Commission. In its letter, Chachipe expressed concerns regarding the discriminatory character of this campaign, most obvious in an information leaflet and poster, showing a woman wrapped in a scarf, sitting in the street and begging. In her arm, she holds a doll, meant to represent a toddler, and in front of her a card board saying “Please [give me] a piece to eat for baby”. Chachipe also pointed out that the drastic increase in charges against the Roma; a result of the police campaign againts them was happening at the time when it begging was no longer illegal. The organisation concluded, that the unfounded charges against Roma beggars seemed to have the unique purpose to keep the Roma out of Luxembourg.
In the course of its investigations Chachipe provided further evidence to the European Commission regarding the arbitrary character of the police actions against Roma beggars. Moreover, the organisation informed the Commission about cases of mistreatment, which it had become aware during its visits to Mont Saint Martin. Finally, the organisation pointed out to the Commission, that the Roma were regularly taken off from the train between Luxembourg-city and the French border and returned to France. On 6 December 2010, the head of the cabinet of vice-president Reding informed Chachipe in a letter, that the Commission’s Directorate General Justice had analysed the police leaflet and found that “it does not appear be in compliance to EU Law.” Regarding the issue of expulsions, the head of cabinet explained that the Commission was closely monitoring the transposition of the Directive 2004/38/EC on freedom of movement and carrying out an ongoing dialogue with all national authorities in order to ensure that this is correctly transposed in national legal orders.
Disagreeing with the Commission’s statement, Chachipe filed a follow-up complaint to the European Commission. In a letter (addendum) of 24 February 2011, the organisation laid out in detail how the actions of the Luxembourg police were violating EU Law. In addition, Chachipe provided further evidence for the discriminatory and discretionary character of the police actions against Roma beggars, most obvious from the fact that the charges of organised begging have never been proved and 99 percent of these cases are never brought before court. Chachipe argued that this treatment lacks a reasonable justification and does not pursue a legitimate aim, demonstrating, thus, the gravity of the procedure applied by Luxembourgish law enforcement officials, As a consequence, these actions are unjustifiable and qualify as discrimination violating article 21(1) of the Charter and article 1 of Protocol 12 of the ECHR. This is direct racially motivated discrimination in the form of ethnic profiling, for the measures of actions by the Luxembourg police suggest the Roma are all “false beggars” and thus criminals. Ethnic profiling is also considered an unacceptable behaviour under the Racial Equality Directive 2000/43/EC.
The organisation also argued that as EU-citizens, Romanian Roma have the right to freely move within the territory of the EU, including entering and leaving voluntarily any EU country of their choice at the time of their choice as guaranteed in articles 4(1) and 5(1) of Directive 2004/38/EC. According to article 27(1), exceptional removals are exclusively allowed on the grounds of public order, public security and public health, none of which have been proven by Luxembourg police.
In its reply dating of 2 May 2011, the Commission argued that the alleged discretionary actions of the Luxembourg police would not fall under EU Law. In the words of the EU Commission, they do not fall under the scope of Directive 2000/43/CE, as this directive is limited to certain fields such as education, employment and public services. Regarding Chachipe’s complaint regarding the ongoing expulsions of Romanian Roma by the Luxembourg police, documented, among others by a police report from 15 February 2008, the Commission argued that these were based on article 12 of the Luxembourgish immigration law of 28 March 1978, which was abolished and replaced by the Law of 11 September 2008.
While the Commission seemed to acknowledge, that the old law was not compatible with EU Law, in that it did not operate a distinction between EU nationals and third country citizens, where the former enjoy an important protection against expulsion, the Commission did not seem to be interested in investigating into the infringements resulting from the late transposition by Luxembourg of Directive 2004/38/EC and the ignorance of this directive by the Luxembourg police. Moreover, the Commission did not seem to be interested in investigating, whether this practice was indeed abandoned following the change of the Law. Information received by Chachipe suggest that this practice is still going on.
Chachipe is also surprised by the restrictive interpretation by the European Commission of Directive 2000/43/CE. In its complaint to the European Commission, the organisation based itself on a guide of the European Union Agency for Fundamental Rights on ethnic profiling, which considers ethnic profiling, involving discretionary and discriminatory police stops and searches a violation of article 2(1) and (2a) of Directive 2000/43/EC.
Finally, Chachipe disagrees with the Commission’s statement, according to which the actions of the Luxembourg police including arbitrary arrests and body searches of Roma beggars do not fall under the European Charter of Fundamental Rights. Indeed, the right to liberty and the prohibition of degrading and inhuman treatment are protected respectively under articles 6 and 4 of the Charter. These actions occurred within the framework of the discriminatory police campaign aimed at removing Roma from Luxembourg as well as discouraging and deterring them from entering the country. This is in violation of the Free Movement Directive 2004/38/EC and falls under EU jurisdiction.
Chachipe is utterly disappointed by the European Commission’s poor reaction to the discriminatory and degrading treatment of Roma beggars in Luxembourg. The organization considers that, similar to the case of France, the European Commission missed an important opportunity to demonstrate, that it is seriously committed to protect the rights of Roma in Europe and human rights in general.