6.1.1 Can lawyers present evidence of battered woman syndrome or other domestic abuse as an affirmative defense to crimes that the battered woman has committed? (Note: Battered Woman Syndrome is accepted by courts in certain jurisdictions to show that battered women can use force to defend themselves and sometimes kill their abusers due to abusive and life-threatening situations.)
Even if it does not explicitly refer to battered woman syndrome, the Criminal Code recognizes the concept of self-defense. Article 416 of the Penal Code states that "there is no crime or misdemeanor when the homicide, injuries and blows were ordered by the present necessity of self-defense of oneself or others."
6.2.1 Can courts issue orders to protect employees suffering from domestic violence?
Women suffering from domestic violence can benefit from protection orders regardless of their employment status.
6.2.2 Can departure be deemed "for good cause" if related to domestic violence?
Labor law does not recognize domestic violence as a departure "for good cause," as it is not linked with the professional situation of the individual. Under Luxembourg employment law, an employee is not required to provide the employer with grounds for their resignation.
6.2.3 Can family members of domestic violence victims take reasonable leave to help the victim seek treatment or obtain help and services?
The Labor Code does not provide specific leave to help a family member seek treatment or obtain help and services. In general, the victim would be granted sick leave due to their mental or physical suffering. The family member would have to take some days from their annual paid leave, unless otherwise agreed with the employer.
6.3.1 Does the law include provisions that are intended to prevent abusers who are citizens or permanent residents from using immigration laws to perpetrate domestic violence against their spouse?
Yes, there are specific provisions prohibiting the trafficking of human beings and imposing sanctions on them. These apply to persons residing in Luxembourg or Luxembourg citizens who bring non-Luxembourg residents into Luxembourg to marry them and abuse them.
6.3.2 If battered immigrants cooperate with law enforcement in domestic violence, can they obtain immigration remedies?
Article 78 (3) of the Law of 29 August 2008 on the free movement of persons and immigration, as amended by Article 5 of the Law of 20 July 2018 approving the Council of Europe Convention on preserving and combating violence against women and domestic violence, provides the following:
Provided that their presence does not constitute a threat to public order, health or safety, the Minister may grant a residence permit on humanitarian grounds of exceptional gravity to a third-country national [...]. The authorization is necessary either in view of the victim's personal situation, i.e., his or her safety, state of health, family situation or situation in his or her country of origin, or if it is necessary for the purposes of the victim's cooperation with the competent authorities in the context of a criminal investigation or proceedings.
6.4.1 Can a victim seek a military protective order if the abuser is in active military?
If a military abuser commits violence on a civil victim, he will be subject to the general provisions of the Criminal Code with no specificities.
6.5.1 Do judges follow special rules to determine custody or visitation of children in domestic violence cases?
Judges determine custody based on the best interests of the child.
6.5.2 Can the judge consider the testimonies of the other spouse and the children when determining custody?
Yes, those testimonies can be considered.
6.6.1 Does the law include any barriers to prevent landlords from forcing a tenant to move out because they are victims of domestic violence?
The law does not explicitly include such a barrier.
6.6.2 Does the law allow a tenant to terminate his/her lease early due to domestic violence?
No, there is no specific provision in the law allowing a tenant to terminate their lease early due to domestic violence. A tenant who wishes to terminate their contract must respect the conventional or legal notice period.
6.6.3 Can an order exclude the abuser from the residence?
Yes. Victims who have obtained the protection of an expulsion order based on Article I of the amended Law of 8 September 2003 on domestic violence may ask the family court to order the expelled person to refrain from returning to the home for a maximum period of three months following the expiration of the expulsion order. Such a request is regardless of any real or personal rights the evicted person may have in relation to the home, provided that the victim lived with the evicted person in a family setting before the eviction and they can prove that the home meets their urgent housing needs (Article 1017-1 of the Civil Procedure Code, among others).