VULNERABLE GROUPS IN DETENTION: WHAT STRATEGIES FOR NMPs?

1. VULNERABLE GROUPS IN DETENTION: WHAT STRATEGIES FOR NMPs? Baku, October 2011

2. Vulnerable groups in detention • Require specific protections (unfair treatment?) • The principle of non-discrimination and protection of vulnerable groups is enshrined in the main human rights instruments • Vulnerability is related to the minority status • A significant proportion of detainees are concerned • Multiple vulnerability • Is a concept depending on: • Particular conditions (physical or psychological, personal story, social background, etc.) • Environmental factors (type of deprivation of liberty, contextual discriminations, attitude of the stafff, attitute of fellow prisoners, etc.)  dynamic notion

3. Discrimination and sanctions • Belonging to a vulnerable group often leads to an increase risk of discrimination, sanctions and ill-treatment: • Hindered access • Being perceived as less credible by law enforcement agencies • Violence from fellow detainees • Type of work/tasks given • Threat of disclosing confidential information • Stigma and further victimization

4. Key cross-cutting international standards • Universal Declaration of Human Rights, art. 2 • ICCPR, art. 26 • ICESCR, art. 12(1) • Body of principles for the protection of all persons under any form of detention or imprisonment, Principle 5 (1) • UN Standard Minimum Rules for the treatment of prisoners, rule 6 (1) • European Prison Rules (13)

5. Optional Protocol • No specific mention of vulnerable groups • But… very broad definition of deprivation of liberty: « any form of detention or imprisonment or the placement of a person in a public or private setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority » (art. 4.2)  No vulnerable group out of the scope of the OPCAT

6. Subcommittee on Prevention of Torture • The approach of the Subcommittee to the concept of prevention of torture and other cruel, inhuman or degrading treatment or punishment under the Optional Protocol: “Although all those in detention form a vulnerable group, some groups suffer particular vulnerability, such as women, juveniles, members of minority groups, foreign nationals, persons with disabilities, and persons with acute medical or psychological dependencies or conditions. Expertise in relation to all such vulnerabilities is needed in order to lessen the likelihood of ill-treatment.” (4th annual report, Guiding principles, [j])

7. European Committee for the prevention of torture • Immigration detention (foreign national under alien legislation; irregular migrants; deportation of foreign nationals by air) • Juveniles • Women • Persons involuntary placed in psychiatric establishments (and means of restraints) CPT Standards, 2002, Rev. 2010

8. European Committee for the prevention of torture: examples • Electrical discharge weapons: “In the absence of detailed research on the potential effects of EDW on particularly vulnerable persons (e.g. the elderly, pregnant women, young children, persons with a pre-existing heart condition), the CPT believes that their use vis-à-vis such persons should in any event be avoided.” (20th General Report) • Migrants: “Given the vulnerable nature of this group of persons, the CPT has, in the course of many of its visits, focused its attention on the treatment of immigration detainees.” (19th General Report) • Juveniles: « regardless of the reason for which they may have been deprived of their liberty - juveniles are inherently more vulnerable than adults. In consequence, particular vigilance is required to ensure that their physical and mental well-being is adequately protected.” (9th General Report)

9. Special Rapporteur on Torture • Women (A/HRC/7/3) • Sexual minorities (A/56/156) • Persons with disabilities (A/63/175) • Persons with HIV (E/CN4/2004/56) • Drug users (A/HRC/10/44) • Children (A/55/290 & A/54/426)

10. Prison / Specialized institution • The type of place where a person is deprived of liberty will have a direct impact on his/her minority status and his/her condition of vulnerability • But… • Being in a specialized institution is not a guarantee for better treatment • Being a minority is an exposure to higher risks but being part of a majority does not guarantee a better treatment • Some individuals will always be part of a minority and will never be transferred to a place tailored for their « category » • Vulnerability in specialized institutions too (new « minorities »)

11. For example (1): a migrant… • … in a prison VS in an immigration center: • Status? • Minority/majority? • Attitude/Training of staff? • Language and interpreters? • Activities • Special needs? • Preparation/composition of the monitoring team

12. For example (2): a woman… • … in a « regular » prison VS a prison for female detainees: • Minority/majority? • Staff: gender, training and attitude? • Special needs? • Activities? • Location (distance from home)? • Preparation/composition of the monitoring team

13. What can NPMs do? • Single body NPM vs. NPM with separate bodies visiting specific places • Include vulnerability in their overall strategy (mapping of places, internal mapping of each place, development of visits’ programmes, analysis of risks, etc.) • Include external experts in visiting teams • Meetings with other institutions/NGOs with specific expertise • Select vulnerable groups as specific objectives for thematic visits • Clearly distinguish between vulnerable groups in specific institutions VS in prisons • Tailor the composition of the visiting team accordingly • Adapt the methodology (same methodology « + »); issue of interviews • Mindful of specific sanctions and forms of discrimination • Tailored recommendations

14. Composition of the team • Tailored to the objectives of the visit: • Medical person: always recommended • Women • Service users/ former detainees • Persons with disabilities

15. Dealing with interviews in private • With children • With mentally disabled persons • With foreign nationals (interpreter?) • With detainees under the influence of alcool or drugs

16. Examples of recommendations to the management • Protection of vulnerable groups as an obligation • Clear and understandable rules for everyone • Ensure a separation of regimes/categories • No disciplinary punishment for belonging to a specific group • Focus on discrimination and violence amongst prisoners • Greater need for rehabilitation • Trainings for the staff (increase awareness on vulnerability)