Minorities (national or ethnic, cultural, religious and linguistic minorities) and indigenous peoples are two distinct groups. However, despite the heterogeneity of the people concerned, ethnic minorities and indigenous people are discussed together here because of the similar problems they tend to face in detention. They both commonly experience precarious economic conditions and are often victims of discrimination. In many situations, these groups are overrepresented in detention. This is particularly true regarding indigenous women and ethnic minorities.
Indigenous peoples can be defined as peoples who "on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions" (ILO Convention 169, Art. 1). The Subcommittee on the Prevention of Torture (SPT) states in its sixth annual report that “any form of imprisonment imposed on indigenous persons by public authorities – including traditional authorities who may, in exceptional cases, hold the person in custody – should be the exception, not the rule. In such circumstances, and especially when the detention is illegal, there is a higher risk of torture or cruel, inhuman or degrading treatment.”
Minorities are not defined specifically in any international treaty. Nevertheless, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992) refers to minorities based on national or ethnic, cultural, religious and linguistic identity (Art. 1). Furthermore, any definition must include both objective factors (such as the existence of a shared ethnicity, language or religion) and subjective factors (including that individuals must identify themselves as members of a minority, as stated by the UN Committee on the Elimination of Racial Discrimination, General Recommendation No. 8).
Certain structural factors may explain the over-representation of people from minority groups and indigenous peoples in custody. In some contexts, the high rate of imprisonment is the direct result of arrests in connection with claims for individual and collective rights or land disputes. The fact that in some countries the judiciary tends to use preventive imprisonment for these groups, more so than other measures, also explains this phenomenon. Further, economic insecurity contributes to weakening effective means of a legal defence.
Upon their arrest and during each phase of the trial and detention process, people from indigenous communities and minority groups should have access to interpreters and information about their rights in a language they understand. When this right is not upheld, they do not have the same access as others to the complaints and appeals system and are therefore more vulnerable to all types of abuse. Higher levels of illiteracy and limited knowledge of the functioning of the justice system can reinforce their vulnerability. It has also been documented that minorities and indigenous peoples are subject to higher levels of institutional violence and that women belonging to these groups are more often victims of sexual harassment and even rape.
Once they are placed in detention, minorities and indigenous peoples are more likely to be victims of segregation and are more often assigned to maximum security areas, even when the nature of the offence or crime does not justify it. Their parole applications are more frequently denied.
In some countries prison management is relatively homogeneous, ethnically and culturally. As a result, people from minority groups and indigenous communities may not receive the specific protection they require from the prison administration. Violence they experience in detention may be overlooked, neglected or go unpunished.
This may explain some of the negligence regarding violence experienced in detention by people from minority groups and indigenous communities. Likewise, these groups might not receive the specific protection they require from the prison administration. The abuse they undergo is likely to go unpunished.
Detention often results in individuals being moved away from their community and their culture of origin. This leads to specific difficulties, including their right to receive visits.
Minorities, particularly indigenous peoples and religious minorities should have the opportunity to observe some of their traditions in detention. Similarly, the cultural specificities concerning their relationship with their bodies, objects or clothing must be respected and reasonable accommodations made to enable them to maintain their traditions.
- ILO Convention N°169 (see articles 8, 9 and 10)
- United Nations Declaration on the Rights on Indigenous Peoples (see articles 5, 8.1, 34 and 35)
- Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
- Council of Europe Framework Convention for the Protection of National Minorities, Council of Europe
- Minorities' rights: International standards and guidance for implementation; Office of the High Commissioner for Human Rights; 2010
- Annual Report of the UN Special Rapporteur on the rights of indigenous peoples (E/CN.4/2004/80); 2004
- Sixth Annual Report of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT/C/50/2); 23 Apr. 2013
- Report by the UN Special Rapporteur on minority issues (A/HRC/22/49/Add.1); 2012
- Report by the UN Special Rapporteur on minority issues on effective promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (A/70/212); 30 July 2015
- Report of a review of a critical incident by the ACT Inspector of Correctional Services: Use of force to conduct a strip search of an Aboriginal woman detainee at the Alexander Maconochie Centre (Australia) on 11 January 2021