31/72 Recommendations of the Forum on Minority Issues at its eighth session: Minorities and the criminal justice system (24 and 25 November 2015)

Human Rights Council Thirty-first session

Agenda item 5

Human rights bodies and mechanisms

Recommendations of the Forum on Minority Issues at its eighth session: Minorities and the criminal justice system (24 and 25 November 2015)

Contents

Page

I. Introduction ...................................................................................................................................... 3

II. General considerations .................................................................................................................... 3

III. General recommendations for States ............................................................................................... 4

IV. Thematic recommendations for States ............................................................................................. 5

A. Data collection and studies ...................................................................................................... 5

B. Access to justice for minorities ................................................................................................ 7

C. Minorities in detention facilities .............................................................................................. 10

D. Judicial proceedings and sentencing ........................................................................................ 12

V. Essential measures to prevent discrimination against minorities

in the administration of justice ......................................................................................................... 14

A. Education, training and capacity-building ............................................................................... 14

B. Community engagement .......................................................................................................... 14

C. Improving diversity throughout the system ............................................................................. 15

D. Independent oversight and integrity mechanisms .................................................................... 16

VI. Recommendations for non-State actors ............................................................................................ 16

VII. Recommendations for international and regional organizations ...................................................... 18

I. Introduction

1. In accordance with Human Rights Council resolutions 6/15 and 19/23, the present

document contains the recommendations of the Forum on Minority Issues. The eighth

session was held on 24 and 25 November 2015 and considered the theme of “Minorities in

the criminal justice system”. The work of the Forum was guided by the Special Rapporteur

on minority issues, Rita Izsák. The Chair of the session was Joshua Castellino of India.

More than 500 participants attended, including representatives of Member States and

minority communities, non-governmental organizations, United Nations specialized

agencies, regional and intergovernmental bodies and national human rights institutions.

2. The recommendations contained in the present document are based primarily on the

provisions contained in the Declaration on the Rights of Persons Belonging to National or

Ethnic, Religious and Linguistic Minorities. In the Declaration, it is recognized that the

comprehensive implementation of minority rights and the existence of adequate

institutional and policy frameworks can effectively contribute to the elimination of all

forms of discrimination against members of minority communities, as well as promote their

full equality before the law without any discrimination.

3. The recommendations are also based on existing human rights standards,

international and regional instruments, principles and guidelines concerning the fairness

and effective safeguarding of minority rights at all stages of the criminal justice process,

including the jurisprudence and general comments of United Nations treaty bodies and

relevant reports and recommendations of different special procedure mandate holders.

4. The recommendations take into account the great variety of legal systems and

minority situations around the world and acknowledge that the patterns of violations of the

rights of minorities may vary between systems and that, consequently, different measures

may be required to protect minority rights throughout the criminal justice process within a

given State. The present document makes no claim to study the diversity of national

criminal justice systems nor does it explore how specific systems may generate or

accentuate particular forms of discrimination against minorities.

5. The recommendations aim to provide State authorities, decision makers, public

officials, minority groups, non-governmental organizations, academics and other

stakeholders with an overview of some of the key challenges for minorities in relation to

various stages of the criminal justice process and proposes some concrete solutions thereto.

II. General considerations

6. The recommendations proposed in the present document should be read in

conjunction with the substantive and action-oriented recommendations formulated at the

seven previous sessions of the Forum on Minority Issues, as they also apply to situations in

which discrimination in the criminal justice system is to be prevented and addressed.

7. In particular, participants at previous sessions of the Forum addressed some of the

most fundamental, long-standing concerns and entrenched challenges that minorities face in

their access to fundamental economic, social, cultural, civil and political rights, depriving

them of the opportunity to contribute fully and on an equal footing to the socioeconomic

and political life of the State. The present recommendations acknowledge the importance of

addressing the systemic nature of social and economic exclusion and political

marginalization, including institutionalized discrimination against minorities, as an

essential element in the complex matrix between exclusion and criminal behaviour. The

recommendations therefore recognize that States must invest in initiatives, including early

intervention programmes, to combat social, economic and political disadvantage of

minorities. In that regard, States should also consider taking special measures for minority

groups.

8. It is important to recall that, a gender-sensitive approach to the implementation of

laws, programmes and measures relating to women from minorities is imperative, given

that, in the various stages of the criminal process, including in the prisons of virtually all

countries, minority women and girls may be exposed to multiple and intersecting forms of

discrimination, irrespective of their status as victims, perpetrators or witnesses.

9. Measures to address the needs and rights of children from minorities should also be

implemented, in accordance with international standards on juvenile justice and protection

for children’s rights.

10. All measures taken with a view to implementing the recommendations should be, to

the fullest extent possible, developed, designed, implemented, monitored and evaluated in

consultation with and with the effective participation of minorities, including women.

11. Recognition of minority status should not be left solely to the State to decide. As

stated in the authoritative interpretation by the Human Rights Committee in its general

comment No. 23 (1994) on the rights of minorities (para. 5.2), the existence of minorities

should be established using objective criteria. Every effort should be made to ensure that

the principle of self-identification is respected.

III. General recommendations for States

12. Regardless of the criminal law of a particular State, or the procedures followed

(adversarial, inquisitorial or combined), international law requires States to ensure that all

individuals within their jurisdiction enjoy their fundamental rights throughout the criminal

justice system: the right to a fair trial by a competent, independent and impartial court

established by law, and the right to legal aid; the presumption of innocence; the principle of

legality and non-retroactivity of more stringent criminal laws; the principle of double

jeopardy; the prohibition of torture and cruel, inhuman or degrading treatment, and the

inadmissibility of confessions obtained by torture or the use of cruel, inhuman or degrading

treatment; and the right to liberty and security of person, the prohibition of imprisonment

for civil debt and the due process required to protect these rights.

13. States should take measures that specifically promote the equal treatment of

minorities within the criminal justice system. For the criminal justice system to remain

viable, society must be confident that, at every stage of the process, from initial

investigation by the police of a crime, to prosecution and punishment, individuals in similar

circumstances are treated alike, in compliance with the fundamental guarantees of equal

treatment under the law.

14. States, in collaboration with representatives of minorities, should aim at dismantling

discriminatory mechanisms within the criminal justice system, including by detecting and

addressing de jure discrimination in legislation relating to matters of substance and/or

procedure, and indirect discrimination that may arise from laws, policies or practices that

are ostensibly neutral but have a discriminatory outcome in practice. Further studies to

determine the nature and scope of the problem and the implementation of national strategies

or plans of action aimed at the elimination of discrimination, including institutional

discrimination against minorities, should be encouraged.

15. Comprehensive implementation of international standards of minority rights

protection, equality and non-discrimination is the foundation for any action or initiative

aimed at preventing and addressing discrimination against minority groups at all stages of

the administration of justice. Although most States have general legislation to this effect,

minorities are often caught between formal equality before the law and the courts and

structural discrimination that manifests itself through distinctions, exclusions, restrictions or

preferences that result in differential treatment and the accentuation of inequalities.

16. Effective counter-terrorism measures and the protection of human rights, including

minority rights, are complementary and mutually reinforcing objectives that must be

pursued together as part of States’ duty to protect individuals within their jurisdiction.

Therefore, States should ensure that all counter-terrorism measures, including anti-terrorism

legislation and increased police, military and intelligence operations, comply with

international human rights standards and do not disproportionately target members of

minority communities or groups purely on the basis of minority identity or membership or

perceived membership in a minority group.

IV. Thematic recommendations for States

A. Data collection and studies

17. The failure of many States to collect and analyse data that is sufficiently

disaggregated remains a fundamental barrier to progress in the area of combating

discrimination against minorities in the criminal justice system. This lacuna impedes the

production of qualitative and authoritative diagnoses that provide objective information

regarding the involvement of persons belonging to minority groups in all aspects of the

administration of justice. While data can highlight existing challenges for States in specific

areas of the administration of criminal justice, it can also be used as an important indicator

of progress achieved by States.

18. Data should be collected and used with due consideration for the principles of self-

identification and consent. In that regard, it is important to recognize that how an individual

defines themself may be very different to how government officials or researchers may

define them. In keeping with international best practice, respondents should always be

given the option of indicating multiple or no ethnic affiliations. This is particularly

important in law enforcement operations, which carry the genuine risk of the misuse of

ethnic data to facilitate racial and ethnic profiling. Furthermore, since the perception of the

mainly majoritarian law enforcement officers has often been found to drive racial profiling,

such perceptions should be part of the data collected.

19. States should ensure that robust guarantees for data protection and disclosure control

measures are in place. The nature of the data to be collected should be based on public

participation and understanding of the implications of how such data could potentially be

used. To this end, States should consider establishing appropriate data protection

institutions or bodies with supervisory authority to ensure that the process of collection,

recording, storing, retrieving, sending, blocking or erasing data upholds the strict privacy

rules governing these activities.

20. States should ensure that such data and studies are made publicly available and can

be easily interpreted and accessed by all potential users, including minority individuals and

groups.

21. States should generate adequate protocols to treat data that demonstrate that certain

minority groups are overrepresented among persons arrested and imprisoned for criminal

offences, in order to ensure the data do not propagate negative stereotypes that associate

minority identity with criminality. This is important as overrepresentation of minorities in

criminal justice systems often have more to do with structural discrimination and factors

such as overpolicing of minority communities.

22. States should develop a comprehensive set of standardized tools, including

computerized systems, that will assist them in evaluating the performance of their criminal

justice institutions against a set of objective standard criteria. Such criteria should include:

the type of rights violated at all stages of the criminal justice processes; the relevant

characteristics or status of the victims, including gender, and perpetrators, i.e. State agents,

private companies or individuals; the place and time of violations; and outcome of the

redress process, i.e. conviction, sentence and compensation. States should pay due attention

to the possibility that State agents perceive, either through training or implicit bias, that

minorities are more likely to be engaged in criminal activity than non-minorities, and

collect data to interrogate such perceptions.

23. States should systematically classify complaints and reported cases of alleged

violations against minorities to support follow-up and allow for cross-sectional

comparisons over time and across the criminal justice system. To that end, States should

consider establishing coordinating committees or dedicated teams composed of

representatives from key criminal justice agencies to ensure that information on a case is

exchanged in a confidential, timely and efficient manner throughout the system and make

sure that all information on a case is computerized and simple to analyse.

24. States are encouraged to conduct crime victimization surveys (or victim surveys),

which allow for a broader representation of crimes, including unreported crimes, and may

reveal specific details about victims and their experience of the criminal justice system,

offenders, and other characteristics of criminal incidents. This will enable a better

understanding of crime, including implications for minorities. The United Nations Office

on Drugs and Crime (UNODC) and the United Nations Economic Commission for Europe

Manual on Victimization Surveys provides practical guidance on carrying out such surveys,

framing questions concerning police reporting rates, methods of data analysis and

modalities for the presentation of findings that are relevant to the situation of minorities.

25. States should consider conducting court user surveys to better understand user

experiences of courts. Such tools have proved effective in detecting the impact of backlogs,

delays in the delivery of justice outcomes, incidents of external pressure being applied,

corruption, lack of adequate resources or other aspects that particularly impact minorities.

Such surveys may trigger policy interventions and strengthen the capacity of the justice

sector agencies in terms of planning and budgeting, monitoring, high-level advocacy and

cross-sectoral dialogue, as well as in addressing the expectations of all sectors of society,

including minorities, revealing barriers to such expectations and offering the opportunity of

greater accessibility to the criminal justice system.

26. States should collect and make public data on the composition of law enforcement

personnel and the judiciary, disaggregated by gender, ethnicity, profession and numbers in

each role, in order to provide policymakers and justice professionals with a practical and

detailed tool to better understand the constituents of the criminal justice system. This would

enhance transparency, may lead to greater public confidence in the criminal justice systems

and improve fairness and equality of opportunity, ultimately improving the efficiency and

quality of the criminal justice system.

27. States should encourage and support non-governmental organizations, academic

institutions and researchers in undertaking independent studies on the situation of

minorities in the criminal justice system. States should ensure the removal of legislative or

bureaucratic obstacles that may hamper the research, production and publication of such

studies.

B. Access to justice for minorities

1. Minorities and law enforcement and policing operations

28. Discrimination against minorities in law enforcement operations can take the form

of overpolicing and underpolicing. Overpolicing is often manifested through racial

profiling, leading to higher rates of arrest, detention and sentencing.1 It is often

accompanied by the criminalization of social protest by minority groups, which leads to

high rates of pre-charge detention and release, a phenomenon not often reflected in official

data on criminal processes, when such data is collected.2

29. Underpolicing often occurs where law enforcement authorities fail to take

appropriate action in investigating and prosecuting crimes committed against minorities

(see sect. C below) and fail to take appropriate action regarding hate speech or hate crimes

committed against minorities. Overpolicing and underpolicing remain problematic:

contributing to the overrepresentation of minorities in the criminal justice system, while

fostering a lack of trust among minorities in criminal justice processes.

30. States should enact legislation explicitly prohibiting and punishing the questioning,

searching and arrests of individuals based solely or primarily on their physical appearance,

or the perceived membership of an individual as belonging to a minority group, through

racial and/or ethnic profiling by law enforcement agencies.

31. States should provide detailed and practical guidance, including through operational

protocols, codes of conduct and regulations and training, for all law enforcement officers on

how to ensure the impartial and non-discriminatory application of the law and to avoid

singling out any particular minority group in police and security operations for all types of

crimes.

32. In areas and regions where racial profiling by law-enforcement is prevalent, States

should consider introducing community liaison officers including women, or other outreach

mechanisms from or with connections to relevant minority communities. Communities

should be made aware of the existence of these mechanisms, their right to lodge a

complaint and how and where to file complaints.

33. States should develop protocols and codes of conduct for law enforcement agencies

for the investigation of hate crimes, including hate speech, incidents and violent crime.

Such tools can promote early detection of incidents, helping ensure that situations do not

escalate.

34. Minority groups, particularly disadvantaged and stigmatized minorities, may be

disproportionately subjected to human rights violations at the hands of law enforcement

officers, ranging from pervasive verbal abuse and harassment during public assemblies and

overpolicing of minority social protests to use of excessive force, torture and inhuman or

degrading treatment during arrest and interrogation, extrajudicial killings and death in

custody. States should ensure that rules on the use of force by the police respect general

principles of proportionality and necessity in accordance with the Basic Principles on the

Use of Force and Firearms by Law Enforcement Officials and that intentional use of lethal

force is restricted to situations where it is unavoidable to save life. The Principles should

1 See report on racial and ethnic profiling of the Special Rapporteur on contemporary forms of racism,

racial discrimination, xenophobia and related intolerance (A/HRC/29/46).

2 See the report on threats against groups most at risk when exercising assembly and association rights

of the Special Rapporteur on the rights to freedom of peaceful assembly and of association

(A/HRC/26/29).

guide law enforcement officials when managing assemblies: restricting the use of force to

circumstances of absolutely necessity, while ensuring that no one is subject to excessive or

indiscriminate use of force. In accordance with the Optional Protocol to the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, all

places of detention by law enforcement should be subject to oversight and monitoring.

35. States should allocate sufficient resources to independently document, investigate

and prosecute, promptly and thoroughly, all allegations of discrimination, or use of lethal or

excessive or otherwise unlawful force by law enforcement officers against minorities.

Military institutions such as military police forces that often operate under separate legal

regimes should not be exempt from such investigations. Private security companies

contracted to carry out law enforcement functions should be subject to the same standards

and be investigated in case of any alleged discriminatory or abusive behaviour against

minorities.3

36. New technologies, such as video capabilities, handheld devices and closed-circuit

televisions, provide new avenues for civilian monitoring of law enforcement behaviour and

can be useful advocacy tools for minority communities in exposing violations in encounters

with law enforcement authorities. Attention should be paid to how these can be used to

ensure accountability and justice for minorities.

2. Access to justice for minority offenders

37. States should ensure equal and effective access to justice and accountability

measures for minority offenders. States should ensure that members of minorities are fully

informed, in a language and means appropriate to their situation, of their rights as

offenders, and should secure access to support, including competent legal assistance and

interpretation services.

38. In accordance with the United Nations Principles and Guidelines on Access to Legal

Aid in Criminal Justice Systems (para. 8), States should ensure access to legal aid as an

essential element of a fair, humane and efficient criminal justice system based on the rule of

law. Legal aid should include legal advice, assistance and representation, legal education

and access to legal information and should be provided at no cost to minority offenders

without discrimination when they do not have sufficient means or if it is in the interests of

justice. This is particularly important in the early stages of the criminal justice process as

actions taken or lack thereof will determine an offender’s ability to enjoy other human

rights, such as rights to a fair trial, equality before the law or to liberty and security of

person and to an effective remedy.

39. States should develop, in close consultation with key stakeholders, such as bar

associations, law enforcement authorities, prosecutors, the judiciary, non-governmental

organizations and civil society organizations, a national strategy for legal aid that identifies

the need for such aid, with due regard for minority communities and individuals, especially

those most marginalized and vulnerable to abuse. Such a strategy should also outline how

best to appropriately deliver legal aid according to those needs.

40. States should develop and promulgate professional codes of conduct for legal aid

providers, including lawyers, paralegals and those institutions providing legal aid services,

that specifically incorporate international human rights standards for the protection of the

3 See UNODC Handbook on State Regulation concerning Civilian Private Security Services and their

Contribution to Crime Prevention and Community Safety. Available at www.unodc.org/documents/

justice-and-prison-reform/crimeprevention/Ebook0.pdf.

interests of clients, including the duty to act with integrity and independence, as well as a

duty to act impartially, regardless of their background, origins or beliefs.

3. Investigation into crimes committed against minorities – minorities as victims

41. States should remove all obstacles preventing minority victims, including those most

vulnerable within the community, such as women, children, persons with disabilities, older

persons, minorities living in extreme poverty and minorities affected by conflict or

displacement, from reporting a violation of their rights and accessing formal justice.

42. Law enforcement authorities, prosecutors and judicial authorities must ensure that

criminal complaints by members of minorities are pursued with the same rigour and

diligence applied to other complainants. States should guarantee that the criminal justice

system promotes a climate of trust between minorities and State authorities and does not

tolerate the promotion of a culture of impunity, which may encourage further crimes,

including violence, against minorities.

43. States should consider establishing dedicated, specialized units within existing

prosecution agencies, in order to respond to crimes that are particularly challenging to

detect and prosecute, and which have a particularly serious impact on minority victims and

society as a whole, including hate crimes or gender-related killing of women, including

minority women.

44. Police should take steps to encourage the reporting of crimes against minorities,

including racially or ethnically motivated violence by non-State actors, ensuring that these

are fully recorded and thoroughly investigated. Where ethnic tensions and/or violence

against minorities has previously occurred, States must ensure that authorities effectively

and promptly investigate crimes against minority individuals and communities, including

by examining any alleged discriminatory motive for the crimes.

45. States should ensure that minority victims have an enabling environment in their

access to formal justice by guaranteeing their personal safety and security and identifying

and overcoming legislative, administrative, social or cultural barriers that minorities,

especially women, may face in exercising their access to justice. Such barriers may include

onerous and discriminatory rules of evidence and procedural requirements, fear of reprisal

by perpetrators of the crime, owing to a lack of confidence that authorities will protect

minority victims, and fear of being stigmatized by their own and/or other communities.

46. States should guarantee effective measures to ensure the effectiveness of the

criminal justice system by informing minority victims, witnesses or offenders of their rights

and progress in their case, engaging with their views at appropriate stages of proceedings,

assisting them through the process and taking effective protection measures, while avoiding

unnecessary delay. States should investigate and punish officials who neglect their duties in

that respect and tackle underlying bias, including structural discrimination, that impinges

minorities’ experience of the justice system.

47. The criminal justice system must be sensitive to the ways in which persons may be

deliberately targeted on the basis of their nationality, ethnic, religious or linguistic identity.

Targeting, which often includes violence, causes long-lasting harm. The criminal justice

processes should instead be aimed at empowering minority victims in access to justice,

supporting rehabilitation and reparations, restoring their dignity and building mutual trust.

48. States should specifically ensure the availability of remedies for minority women

victims of gender-based violence, who may face multiple stigma and intersecting forms of

discrimination with regard to their minority origin (including caste), their gender and the

nature of the crime suffered. Gender sensitization is crucial in enabling government and law

enforcement officers to understand minority women’s challenges within their communities,

including forms of abuse often classed as cultural practices, including forced and early

marriages or female genital mutilation, so they can assist in establishing appropriate

platforms to report and prevent such violations.

49. States should ensure that mechanisms to provide advice, support and rehabilitation

for victims of crime are equally accessible to and effective for persons belonging to

minorities and are culturally adapted, where necessary.

50. States should recognize that minority victims of a criminal act may be exposed to

secondary victimization if the responses of justice institutions fail to recognize their

experience as victims. The overall process of criminal investigation and trial may cause

revictimization because of: decisions on whether or not to prosecute, the thoroughness of

investigation, the conduct of the trial itself, the sentencing of the offender and their eventual

release. State actors responsible for ordering criminal justice processes and procedures

should take the victim’s perspective into account, within the context in which the crime

against a minority individual or community has been committed.

4. Minority witnesses

51. There must be no discriminatory treatment by any criminal justice official arising

from pernicious stereotypes, misinterpretation of expressions and behaviour or bias against

witnesses from a minority background as being less credible or trustworthy.

C. Minorities in detention facilities

52. Systematic, institutionalized and structural discrimination in society may contribute

to legitimizing and replicating discrimination, violence, torture and other cruel, inhuman or

degrading treatment or punishment against minorities, including women and children, in the

context of detention of minorities, and other forms of deprivation of liberty. States should

prevent, investigate and punish acts of violence, harassment and abuse by staff members or

other detainees against minority detainees and ensure that their physical and mental

integrity and dignity are respected at all times, from the time of arrest until eventual release.

States should ensure that discrimination, intimidation and victimization of minorities is not

tolerated in places of detention. That can be achieved by promoting a culture of non-

discrimination and equality, establishing mechanisms where staff and detainees can

challenge discriminatory incidents and promoting good relationships between staff and

detainees.

53. States that have not yet done so are urged to bring their national legislation and

practice into line with the United Nations Standard Minimum Rules for the Treatment of

Prisoners (the Nelson Mandela Rules). Particular attention should be paid of the principle

of non-discrimination (rule 2) and the obligation to take measures to protect and promote

the rights of prisoners with special needs. States should also ensure compliance with the

United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures

for Women Offenders (the Bangkok Rules). These instruments represent the baseline

standard, which all States should strive to achieve, in ensuring a basic level of protection

for minority detainees.

54. All places of detention should be subject to unannounced visits by independent

bodies established in conformity with the provisions and requirements of relevant

international human rights standards, including the Optional Protocol to the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and

should include adequate representation of minorities. As the goal of detention monitoring

bodies is preventative in nature, such bodies should strive to pay attention to the situation of

minorities in detention. They should be afforded unhindered access to all detained minority

persons and be given access to the totality of case files, while maintaining the

confidentiality of communications. States must ensure that all alleged acts of reprisals and

intimidation before, during or after a visit of by an independent body are promptly,

impartially and effectively investigated with perpetrators brought to justice, and victims

provided with effective remedies. All reports into treatment and conditions of detainees

made by independent bodies should be made public.

55. States are urged to adhere to the Nelson Mandela Rules, paying special attention to

the adequate conditions of detention or imprisonment and staff awareness of the need for

reasonable accommodation of cultural, dietary, religious and linguistic characteristics of

minority prisoners.

56. Prison authorities should put in place detailed and practical guidance, through

operational protocols, codes of conduct, regulations and training for the ongoing monitoring

and analysis of discrimination against minorities with regard to access to services and

rehabilitative programmes. This should include providing attention to accommodation,

employment opportunities, health care, vocational training, education, disciplinary

measures and the use of sports facilities, libraries and religious sites while detained, as well

as access to temporary release and parole decisions. Complaints of direct or indirect

discrimination in accessing these services or programmes should be documented,

investigated and punished.

57. States should ensure that persons are informed of their right to legal aid and other

procedural safeguards, as well as of the potential consequences of voluntarily waiving those

rights prior to any interrogation and at the time of deprivation of liberty. Such information

should be made accessible to the public.

58. States should pay special attention to and seek to reduce the detention of minorities

in high-security institutions. The use of disciplinary measures, restrictive interventions or

special security measures, such as administrative segregation, should be subject to clear

procedures and regular monitoring and evaluation to ensure that these are not used

disproportionately against members of minority groups.

59. As affirmed by the Nelson Mandela Rules, the treatment of prisoners should

emphasize not their exclusion from the community, but their continuing part in it (rule 88).

Those rights may have additional significance for members of minorities, for whom access

to outside religious representatives or cultural groups may be as important as access to

family and lawyers. States should guarantee that minorities deprived of their liberty are

therefore able to maintain contact with their families and communities, including their

religious and cultural leaders, by ensuring their placement in institutions close to their

home, while ensuring that their visitors are not discriminated against by prison personnel

and not exposed to disrespectful language or discriminatory attitudes, including deliberate

use of intimate searching, sexual abuse or serious physical abuse and threat.

1. Pretrial detention

60. States should ensure that membership of a minority group is not a sufficient reason,

de jure or de facto, to place a person in pretrial detention. Pretrial detention shall last no

longer than necessary and be administered humanely, with respect for the inherent dignity

of all individuals. Minority individuals charged with committing crimes who are placed in

pre-trial detention facilities should have access to an effective legal aid system and exercise

their right to appeal to a judicial or other competent independent authority in their case,

without discrimination.

61. In accordance with the United Nations Standard Minimum Rules for Non-custodial

Measures (the Tokyo Rules), States should use pretrial detention as a means of last resort

(with due regard for the investigation of the alleged offence and for the protection of

society and the victim) and encourage the use of alternative measures, such as release on

bail or personal recognizance, ensuring that minorities are afforded the same conditions as

other offenders.

2. Detention of minority women and girls

62. States should fully implement standards set forth in the Bangkok Rules to respond to

the distinct needs and multiple forms of discrimination that minority women and girls in

prisons may face. That includes assessment of their access to gender- and culturally

relevant programmes and services in a wide range of aspects of the prison regime, such as

health care, rehabilitation programmes and visiting rights. Prison authorities shall provide

comprehensive programmes and services that address these needs, in consultation with

minority women prisoners themselves, and the relevant communities, ensuring that pre- and

post-release services are appropriate and accessible to minority women prisoners.

63. Prison services must provide for the full range of needs of children in prison with

their mothers, whether medical, physical or psychological. As these children are not

prisoners, they should not be treated as such. The Rules also require special provisions to be

made for mothers prior to admission, so they can organize alternative childcare for children

left outside places of detention.

3. Detention of children

64. In compliance with the Convention on the Rights of the Child, children must be

detained strictly as a measure of last resort, in exceptional circumstances, and for the

shortest appropriate period of time. Alternatives to detention should be given preference. In

the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the

Beijing Rules) are set out a variety of non-custodial options for children facing criminal

charges, including “diversion” from detention, which keeps children in or channels them

into age-appropriate processes or programmes in the community instead. In accordance

with the recommendations of Committee on the Rights of the Child, the minimum age of

criminal liability should start at age 18.4

65. States should ascertain whether juveniles from religious, ethnic, national or

linguistic minority communities are incarcerated at a disproportionately higher rate than

their representation in the overall population. In such cases, they should create and

implement robust crime prevention programmes providing alternative measures to

incarceration, focusing on rehabilitation while emphasizing imprisonment as a last resort.

D. Judicial proceedings and sentencing

66. Whatever the character or customs of a court, States must ensure their full

compliance with international human rights standards, especially equality before the law,

and the guarantee of a fair trial by a competent, independent and impartial tribunal under

the rule of law.

67. States should ensure that accused minority persons receive competent legal

assistance at all stages of the judicial proceedings, including free-of-charge assistance,

without discrimination, particularly where imprisonment or the death penalty is a possible

sentence.

4 See Committee on the Rights of the Child, general comment No. 10 (2007) on children’s right in

juvenile justice.

68. States should incorporate, where possible, and in consultation with minority

communities, aspects of the cultural, religious, linguistic or other characteristics of the

minority communities in culturally sensitized courts, proceedings and programmes. In the

absence of such courts, States should ensure that the cultural background of the accused,

victims and witnesses are appropriately recognized, respected and accommodated by the

authorities throughout the conduct of proceedings within the justice system.

69. States should ensure availability of interpretation services for accused minority

persons not fluent in the language of the court, enabling such persons to use their own

language. In the case of numerically significant minorities with historical ties, States should

recognize the right of such members to have proceedings conducted in their native

language.

70. States should ascertain whether direct or indirect discrimination arises from laws,

policies or practices that appear neutral but in practice have a disparate impact upon

members of minority groups. This should include particular examination of the application

of mandatory sentencing laws on particular communities and the imposition of harsher

penalties or undue delays in sentencing or in the execution of sentences. States should

identify any role that direct or indirect discrimination plays in that regard and, where

discovered, should take measures aimed at providing full remedies and redress.

71. There has been evidence that in some countries the death penalty is imposed and

carried out more frequently against persons belonging to minority groups. This fact should

be considered by States as an additional, decisive argument in favour of the abolishment of

capital punishment.

72. In countries that have not abolished the death penalty, States should ensure that it is

not applied as a result of discriminatory or arbitrary application of the law, including the

lack of the provision of equal access to competent legal assistance and the hindering of the

exercise of the rights to appeal against their sentence and to seek pardon or commutation on

an equal basis with the majority prison population. States should implement safeguards

guaranteeing protection of the rights of those facing the death penalty. States should

undertake further studies to identify the underlying factors of the substantial racial and

ethnic disparities in the application of the death penalty, with a view to developing effective

strategies aimed at eliminating discriminatory practices.

73. In accordance with the Convention on the Rights of the Child, States shall never

impose the death penalty on children, including minority children. States should

discontinue any punishments that are mentally or physically damaging to children,

including corporal punishment and life imprisonment without the possibility of parole.

74. States should ensure that in adjudication and sentencing processes for minority

children, children’s rights and fair trial guarantees are applied without discrimination.

Regardless of the child’s background, sex or origin, sentencing should always comply with

the best interest of the child. States should adopt appropriate measures, including legislative

measures, to ensure that adjudicating bodies secure minority children’s participation in

court processes, ensuring that any sentence is clearly communicated by a judge or

magistrate in a language they can understand.

V. Essential measures to prevent discrimination against minorities in the administration of justice

A. Education, training and capacity-building

75. Compulsory training, education and capacity-building of law enforcement and

judicial officials in human rights and minority rights, emphasizing the principle of non-

discrimination and cultural sensitivity, is crucial in ensuring a fair and effective justice

system, designed to foster tolerance, respect for diversity and integration of a gender

perspective in all its aspects. It involves production of manuals and codes of conduct on

policing and the administration of justice in a multicultural environment, accompanied by

the establishment of appropriate structures to enforce compliance. Training and education

material should be designed and delivered with the meaningful participation of minorities.

76. States should not limit their efforts to the delivery of isolated and ad hoc human

rights training, rather they should invest in broader, coherent and ongoing educational,

training and capacity-building efforts in order to develop clarity, depth and understanding

of the human rights of minorities.

77. States should design and implement effective strategies for all police officials to

become more responsive to the communities they serve. To this end, States should

implement educational programmes that have proved successful in reducing the occurrence

of discriminatory practices in police operations, including through evidence-based training

that offers a framework for developing a coherent approach and through the application of

tested scientific concepts and standards that link evidence with effectiveness in crime

prevention.

78. States should consider reviewing curricula and teaching manuals for the legal

profession, including for judges, prosecutors, lawyers and police academies, to ensure that

they emphasize the need and techniques designed for an inclusive and fully functioning

justice system. A variety of human rights topics, including minority rights, that are directly

relevant to the work of judiciary should become an integrated part of all legal education.

B. Community engagement

79. States should establish mechanisms and mandate policies and practices to ensure

dialogue and consultation with and participation of minorities in assisting States in

understanding the situation of minorities, their issues and concerns when confronted with

the criminal justice system. Such engagement will promote their full and equal access to the

criminal justice system, enable improvements in its efficacy and take significant steps

towards building trust. States should consider undertaking community-oriented initiatives

to bring State officials and minorities together to work for the safety of minority

communities and to ensure adherence to non-discrimination in the administration of justice,

dialogue and partnership and in advancing the engagement of State officials with minority

communities.

80. Police forces should collaborate with minorities at the local level to establish

permanent liaison mechanisms with minority communities to jointly develop local

strategies to review and revise relevant policies and practices, keeping channels of

communication open contributing to the building of mutual trust.

81. States should promote community policing as a strategic complement to traditional

policing practices, establishing police-public partnerships, where police agencies, relevant

government agencies and minority communities actively cooperate in problem-solving. A

central element for community policing is the level of minority communities’ participation.

Adding accountability systems to evidence-based policing make police more inclined to

work with minority communities.

C. Improving diversity throughout the system

82. The overrepresentation of minorities as perpetrators within the criminal justice can

be challenged by the removal of obstacles to their participation in the administration of

justice. Adopting inclusive strategies as part of an overall government policy for the

promotion and protection of minority rights will multiply broader initiatives aimed at

valuing diversity in society. Coherent and comprehensive minority policies require

meaningful consultation that address the particular needs and circumstances of minorities in

a given society, with their full and equal participation in all aspects of life of the State

contributing to greater harmony and security.

83. States should ensure that the composition of law enforcement bodies at the local,

regional and national levels reflect the diversity of the population. That requires concerted

strategies, including legislative and administrative initiatives, organizational policies and

processes to increase recruitment of women and men from underrepresented minorities

from junior to senior ranks. That necessitates the removal of direct or indirect

discriminatory barriers that hinder recruitment, retention and vertical mobility of minorities

in police forces.

84. States should ensure that law enforcement patrols include the deployment of female

officers and other personnel who, where possible, are trained in dealing with women who

may be victims of sexual or other forms of gender-based violence. The role of minority

women in police-community partnerships should not be underestimated and mixed patrol

teams assist in creating cohesive relations between police and minority communities.

85. Experience in many countries has shown that legislation to outlaw discrimination

and foster equality of opportunity has limited impact on patterns of recruitment and

promotion of minorities in established State agencies. States should assess the composition

of each relevant State agency, collecting and analysing figures disaggregated by gender,

position type (junior/senior) and geographical location.

86. States should adopt a wide range of positive actions to overcome barriers of all

kinds, including structural discrimination, that obstruct the recruitment, promotion and

retention of male and female members of minorities in the police, the judiciary, prosecution

services, the legal profession and prison personnel.

87. Adopting proactive recruitment strategies in minority areas contributes to the

removal of formal and informal barriers to the recruitment, retention and vertical mobility

of minorities. Those strategies need to include the removal of physical and/or educational

requirements that exclude minorities; the elimination of culturally exclusive and

antagonistic practices and emblems that contribute to a feeling of isolation; or actions to

reduce or eliminate derogatory, discriminatory and stereotypical attitudes in the workplace.

Practical and realistic targets with fixed timelines for achieving appropriate levels of

participation in security, policing and justice agencies should be set, with such measures

developed in consultation with minority groups and existing minority staff members.

88. States should encourage measures to increase the recruitment of minority officers

and administrators, with the aim of building a diverse workforce in detention facilities, in

particular in contexts where minorities are overrepresented in prison populations and

detention personnel are largely culturally, linguistically or ethnically from the dominant

group in society.

D. Independent oversight accountability and integrity mechanisms

89. States should guarantee independent oversight and accountability mechanisms, by

ensuring independent examination of policies, programmes, recruitment practices and other

policing and security activities as a crucial element to upholding integrity, preventing and

deterring misconduct, and restoring or increasing public confidence in the justice system

and as an indispensable element of the rule of law.

90. States should develop a specific code of conduct for court personnel to help

reinforce ethical and non-discrimination standards and to promote a culture of integrity

throughout the criminal justice system, including within the court system. Codes of conduct

should not simply articulate rules, but should foster the development of an ethical, efficient

and impartial staff.

91. States should establish independent and effective mechanisms or dedicated

institutions with the mandate and technical capacity to receive and adjudicate complaints of

unlawful discrimination on the basis of race, colour, national origin, religion, age, sex,

sexual orientation, disability, gender identity or any other characteristic or status in the

criminal justice system. They should be able to remedy direct or indirect discriminatory

effects on the victim(s) and others, where appropriate. Retaliation against a person who

files a complaint, serves as a witness, assists or participates in any manner in this procedure

should be explicitly prohibited by law and result in prosecution and in disciplinary action

when appropriate. Such mechanisms and institutions should be fully accessible to persons

or groups belonging to minorities.

92. States should establish internal and external oversight mechanisms that should be

given a range of powers, including the mandate to receive complaints about police abuse,

conduct self-initiated investigations of allegations of police abuse, refer cases for internal

police discipline, refer cases to the public prosecutor, impose disciplinary measures,

conduct broader studies on police conduct and/or propose police service reforms to the

police or the government. Oversight mechanisms should be provided with sufficient power

to perform their tasks independently, be adequately resourced, function with the support of

the public and the governance bodies, operate transparently making their reports public and

including members of minorities in all its aspects.

93. In order to preserve and enhance police integrity, States must make sure that an

effective internal disciplinary system is applied in a fair way as a means to prevent

discriminatory behaviour within the police force. If misconduct occurs, it needs proper

investigation and correction, including by addressing the underlying causes of

wrongdoings. That requires challenging the persistence of a police codes of silence which

defeat transparency and accountability, act against independent internal and external

complaints system, and erode trust between minorities and the police, undermining the

creation of safer and fairer societies.

VI. Recommendations for non-State actors

94. States commitment to combating bias and discrimination in the criminal justice

system requires a multi-stakeholder approach, including civil society, minority

communities, religious leaders, national human rights institutions and political leaders.

95. National human rights institutions should be representative of the diversity in their

respective community and should seek to create dedicated oversight mechanisms, allocating

appropriate resources and expertise to systematically assess and report on the situation of

minorities within the criminal justice process, focusing on the behaviour of the police, the

judiciary, prosecutors and legal professionals, taking action where they observe

discrimination.

96. National human rights institutions should monitor the number of complaints

received from persons belonging to minorities in the context of criminal justice processes,

reviewing their outcomes to assess whether complainants are adequately aware of their

rights, and enjoy access to available formal justice mechanisms, without fear of reprisals,

and design their work plans and outreach and information strategies accordingly.

97. Independent professional associations for judges, prosecutors and lawyers should

provide guidance and training on minority rights, including on implicit bias and indirect

discrimination, while ensuring proper representation of minorities within their own

organizations. Disciplinary consequences and remedial measures should follow when

discrimination against minorities is practiced in these contexts.

98. Political leaders should publicly challenge discrimination while refraining from

making statements linking religion, nationality, language, race or ethnicity to criminal

behaviour, irregular migration or terrorism. Political parties should refrain from spreading

inflammatory and racist rhetoric, ensuring that public discourse does not perpetrate

stereotypical, racist, hateful or discriminatory views about specific minority groups.

Effective action against such discourse would ensure the sanctity of the public space, and

would, over time, foster society-wide debate, building trust and confidence.

99. Civil society organizations should systematically engage with relevant stakeholders

to contribute to the eradication of unlawful discriminatory practices and attitudes by law

enforcement agencies and/or the judiciary, including by addressing accountability and

access to justice for minorities more effectively. Civil society organizations should

cooperate with minority groups and developing dedicated initiatives focusing on the

identified problem areas.

100. Civil society organizations, including minority organizations, should be valued as

trusted partners in guaranteeing the promotion and protection of minority rights within law

enforcement and the judiciary, strengthening efforts in data collection initiatives and

monitoring the performance of the criminal justice system.

101. Civil society organizations should advocate for police agencies to develop clear or

improved written policies regarding how to record discriminatory practices by law

enforcement agencies and/or the judiciary and should offer advice on procedures that will

overcome obstacles that prevent minority victims from accessing justice and redress. Civil

society organizations should support, minority individuals who have been victims of

discrimination at any stage of the criminal justice process.

102. Civil society organizations should play a role in facilitating and supporting

initiatives aimed at building a positive relationship between minority communities and the

police, including by improving mutual understanding and trust. This could extend to

supporting the implementation of police efforts to making stop and search more

intelligence-led and effective by providing opportunities for members of the public,

including minority communities to accompany police office on patrol.

103. Civil society organizations should identify and disseminate good practice adopted at

the international, regional and/or national levels with a view to reducing inequalities and

eliminating discrimination against minorities in the criminal justice system.

104. The mass media, including social media, play an important role in the construction

of public knowledge about crime and justice. The public’s perception of victims, criminals,

witnesses and law enforcement officials is largely determined by their portrayal in the mass

media. Public and private media bodies should be challenged if they present negative

stereotypes of minority groups as criminals, violent, untrustworthy, disloyal, alien or dirty

or nurture inaccurate or false assumptions, opinions or generalizations on the supposed

criminal tendency of a specific minority group that may develop into entrenched

discriminatory attitudes and prejudices.

105. Media outlets should adopt codes of ethics and conduct for the exercise and

promotion of ethical standards and be accessible in different minority languages. The

participation of minority professionals in media outlets in all roles and at all levels, as well

as of independent media monitoring bodies, is essential to ensure the objective and non-

stereotypical portrayal of minorities. Media outlets should implement programmes to train,

recruit and support media workers belonging to minority groups. They should also consider

identifying focal points on minority issues in mass media and build their capacity on

minority rights related issues.

VII. Recommendations for international and regional organizations

106. Relevant United Nations bodies, mechanisms and specialized agencies should

support Governments in identifying manifestations of implicit or explicit bias and

discrimination in police operations and the administration of justice, submitting concrete

recommendations and proposals for improvement, including legislative and/or

constitutional reforms. In particular, international bodies that monitor detention, including

the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment and the Committee against Torture, should actively consider

minority issues in their work and include minorities in their membership.

107. United Nations bodies, mechanisms and specialized agencies should utilize existing

United Nations system initiatives and policy frameworks, including the 2030 Agenda for

Sustainable Development and the Rights Up Front initiative, to contribute to strengthening

the United Nations system’s ability to effectively prevent and respond to the complex

situations with which minorities are confronted in the criminal justice system. To that end,

the work of the United Nations network on racial discrimination and the protection of

minorities should continue to be supported and expanded.

108. UNODC should consider adopting a specific focus on diversity and the rights of

minorities in the criminal justice system as a thematic priority within programmes and

projects on crime prevention and criminal justice.

109. United Nations country teams working in the administration of justice reform

processes, including security sector and police reforms should establish dedicated country-

specific structures for minorities.

110. International and regional organizations should make consolidated and integrated

efforts to review and support the activities of national institutions that play a key role in

combating institutional racism and discrimination and reforming the criminal justice

system, for example by providing States with legal assistance in reviewing criminal

legislation, including in order to make racial and other forms of discrimination an

aggravating factor in criminal cases, to support, through mentoring and capacity-building,

the investigation, prosecution and sentencing of persons who have committed racist or other

discriminatory acts and to support research and data-gathering to inform policymaking

processes.

111. International and regional organizations should assist States in designing and

implementing independent oversight and accountability mechanisms for the police, the

judiciary and detention facilities in accordance with United Nations standards and norms

and other relevant international and regional instruments, with a view to advancing full

equality before the law without any discrimination.

112. International and regional organizations should support national justice and/or

security sector reform plans that encourage the recruitment of male and female law

enforcement officers, prosecutors, judges, lawyers and other personnel from minority

groups, providing adequate training on minority rights where necessary.

113. International and regional organizations should provide technical assistance and

capacity-building for national, local and grassroots organizations to improve their reporting,

research and advocacy in the field of minority rights. That could include training on data-

gathering strategies or other quantitative tools that could assist organizations’ advocacy in

influencing States’ policymaking, in order to prevent and address discrimination or abuse

against minorities throughout the criminal justice system.