The case goes back to a decision by the district court of Luxembourg City to annul a report drawn up by a police officer against a motorist for, among other things, road traffic offences. The court's argument at the time was that the officer was not on duty when he checked the vehicle.
The Luxembourg Court of Appeal upheld this judgment last year, but the Deputy State Prosecutor-General appealed to the Court of Cassation (the Court of Cassation is part of Luxembourg's Superior Court of Justice, but not a third instance, as it does not judge the facts, only the correct application of the law).
The first ground of cassation concerned the fact that there is no legal provision limiting the exercise of a police mission to on-duty hours. The Court of Appeal had held that the uniformed police officer, who was on his way to work in his private vehicle, had noticed a car whose driver had passed a stop sign and a red light. The officer then checked the driver's papers and found that he did not have valid insurance for the vehicle.
The police officer had drawn up these reports while he was off duty, i.e. he seemingly did not have the authority to carry out the check. However, there is no legal provision limiting the exercise of a police mission to the officer's on-duty hours or prohibiting the exercise of the mission outside of these hours.
Police officers must record offences and draw up a report. In this particular case, the officer had witnessed a violation of traffic regulations, had asked the driver to show his papers, and had noticed that the vehicle was not properly insured. In deciding that a police officer had no power when he was not in office, the Court of Appeal had added a condition to the law, which was not provided for.
The Court of Cassation considers on this point that there is no legal provision making the exercise of police missions dependent on hours of service. In holding that the officer was not on duty when he had checked the vehicle and made his findings, the appellate judges agreed with the first instance judges who had ruled that he did not have this power, thereby adding a condition to the law and violating the legal provisions. This is why their judgment had to be overturned, without the need for a second means of cassation. The Court therefore quashed the decision of the Court of Appeal and referred the case back to the – now newly composed – Court of Appeal.
