The prohibition of simple begging under Luxembourg's criminal law has become a subject of widespread debate since the introduction of a begging ban by Luxembourg City for specific locations and hours in its police regulation. Notably, this ban does not differentiate between simple, aggressive, or organised begging.

Former Minister for Home Affairs, Taina Bofferding, rejected the capital's amendment during its initial introduction. This disagreement led municipal officials to challenge the decision at the administrative court.

One of the first actions taken by the new Minister, Léon Gloden, was to reverse the decision made by his predecessor. This reversal now permits police officers to inspect beggars in the capital, effective as of 15 January. Minister Gloden justifies this decision by asserting that Luxembourg's criminal law prohibits all forms of begging, including what is commonly referred to as "simple" begging. This argument was most recently presented by the Minister during a debate broadcast on RTL Télé last week.

What does the criminal code stipulate?

Examining the relevant section of the criminal code, Chapter IV, which addresses fourth-class offenses, outlines penalties for begging. Article 563 currently states, "A fine of between €25 and €250 will be imposed on: ... 6° (1) Vagrants and those found begging. Paragraph repealed (L. 29 August 2008) ..."

A footnote related to paragraph one of point 6 clarifies that this paragraph was repealed in 2008 due to a drafting error, which is why the courts are not enforcing it: "Law of 29 August 2008: 'In Article 563 of the Criminal Code, point 6 of the second paragraph is repealed.' This is probably a drafting error, as there has never been a paragraph 2 in Article 563. It is clear from the preparatory work for the law that the legislator did not actually want to abolish point 6 of paragraph 2, but rather paragraph 2 of point 6. The judicial authorities consider that point 6 has been repealed in its entirety."

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A mistake from 2008

The law enacted on 29 August 2008, addressing freedom of movement and immigration, aimed to eliminate the second paragraph of point 6. This particular paragraph dealt with the possibility of relocating individuals across borders. Commentary on the legislative project explained that such provisions were considered outdated: "References to the deportation of foreign nationals under articles 346 and 563 of the Criminal Code have been removed, as they are no longer consistent with the terminology and spirit of the new law."

However, a crucial error occurred in the implementation of this law. Instead of abolishing the second paragraph of point 6, point 6 of the second paragraph was eliminated, effectively erasing point 6 in its entirety, which pertains to begging.

Interpretations by previous governments

Subsequent to this legislative misstep, various Ministries of Justice under different governments have consistently interpreted the situation to mean that the offence of simple begging no longer exists. This interpretation has been upheld even by ministries led by the Christian Social People's Party (CSV), without any historical dispute.

In response to a parliamentary question posed by MP Fernand Kartheiser, the then CSV Minister for Home Affairs, Jean-Marie Halsdorf, and the then CSV Minister of Justice, François Biltgen, clarified in 2012 that the offence of simple begging had indeed been abolished by the 2008 law. 

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Their joint statement at the time read: "On 29 August 2008, the legislature passed a law abolishing the offence of 'simple' begging. It is therefore only normal, at least in a state governed by the rule of law, that there should be no prosecutions or convictions for acts that do not (or no longer) constitute a criminal offence. (...) As for the question of whether it is appropriate to legislate on this issue, it will be referred to the task force currently analysing possible changes to the Criminal Code."

In December 2015, Félix Braz from the Green Party (déi Gréng) was the first to become entangled in a contradiction regarding the status of begging laws. During a session of the Chamber of Deputies' Justice Committee, convened at the request of the CSV precisely due to the perceived abolition of begging in the Criminal Code, the current Minister for Home Affairs, Léon Gloden (CSV), was also in attendance.

At the start of the meeting, Braz asserted that simple begging still constituted an offence under the Criminal Code. He argued that a "material error" existed in the 2008 law: "[The Minister] points out that simple begging is still an offence under the Criminal Code. He points out that the aforementioned law of 29 August 2008 contains a material error in that there was never any question of abolishing the offence of simple begging."

However, as the meeting progressed, Braz contradicted his earlier statement by asserting that the offence of simple begging had indeed been abolished by the 2008 law. In this revised stance, he declared, "The bodies of the judiciary, an independent power, apply the text of the law in the form in which it was published in the Mémorial, the Official Journal. In other words, the offence of simple begging has been repealed."

Notably, representatives of the judiciary were present during this session, including Martine Solovieff, the Attorney General. She unequivocally stated that simple begging no longer fell under criminal law: "[The Attorney General] points out that simple begging is no longer covered by criminal law since the entry into force of the law of 29 August 2008. It should be pointed out that the judicial authorities apply the laws as published in the Mémorial, the Official Journal published by the Central Legislation Service."

Furthermore, Solovieff highlighted that the Attorney General had already communicated this change to the Director of Police in November 2009.

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What do the Luxembourg City police regulations say?

The executive board (Schäfferot) of the municipality of Luxembourg City and Minister for Home Affairs Léon Gloden assert that the new police regulations of Luxembourg City target "aggressive" or "organised" begging. However, it should be noted that such behaviours were already prohibited under Luxembourg City's existing police regulations. The revised Article 42 now explicitly states: "any other form of begging is also prohibited (...)." Intriguingly, the municipality of Luxembourg City references Article 563 point 6 on its website but omits the crucial footnote explaining the abolition of this point.

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What are the practical implications for the police?

Addressing the practical implications, Marlène Negrini, the president of the police union, outlines that the police are now tasked with intervening against all forms of begging. In a statement to RTL.lu on Monday morning, she emphasised, "We must not make a distinction." Precisely because Luxembourg City's police regulations make no distinction, albeit only in specified areas where begging is prohibited from 7am to 10pm.

Is "aggressive" and/or "organised" begging prohibited by criminal law? 

One argument put forward by the opposition, both in the Chamber of Deputies and in Luxembourg City's town hall, is that aggressive or organised begging is already prohibited by criminal law anyway, meaning that the police have a legal basis to take action against it. Articles 342 to 346 do indeed prohibit begging in connection with certain types of behaviour, such as threatening others or feigning illness or injury when begging.

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Additionally, Article 382-1 prohibits human trafficking related to begging, including the recruitment or transportation of individuals for the purpose of begging.

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