Minorities (understood as national or ethnic, cultural, religious and linguistic minorities) and indigenous peoples are two different groups. However, despite the heterogeneity of the people concerned, ethnic minorities and indigenous people are clustered together here because of the similar problems they tend to face in detention. These persons are often characterised by precarious economic conditions and are often victims of discrimination. In many situations, these groups are overrepresented in circumstances of 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) insists in its 6th annual report on the fact 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 United Nations Minorities Declaration (adopted by consensus) refers to minorities as based on national or ethnic, cultural, religious and linguistic identity (Art. 1). Furthermore, any definition of a minority 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 causes may explain the over-representation of people from minorities and indigenous peoples in custody and have led to certain discriminatory practices and standards. 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. Finally, economic insecurity contributes to a weakening of the effective means of a legal defence.
Upon their arrest and during each phase of the trial and detention process, people from indigenous and from minorities 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 to the complaints and appeals system in place and are therefore more vulnerable to all types of abuse. People belonging to minorities and indigenous communities are often more affected by illiteracy and may have a limited knowledge of the functioning of the justice system. This fact only reinforces their vulnerability. It has also been documented that minorities and indigenous peoples are subject to more 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 also more frequently denied.
In some countries prison management is relatively homogeneous ethnically and culturally. This may explain some negligence regarding the violence these minorities are victims of given the fact that sometimes the context of violence in which they live in the outside world could contribute to legitimising and maintaining violence in a context of deprivation of liberty. Likewise, these populations might not receive the specific protection they require by the prison administration. The abuse they undergo is likely to go unpunished.
Detention often results in a move away from their community and their culture of origin. This leads to specific difficulties; such as exercising their right to receive visits.
Minorities, particularly indigenous peoples and religious minorities should have the opportunity to observe some of their traditions, even in detention. Similarly, the cultural specificities concerning their relationship with their bodies, objects or clothing must be respected and reasonable accommodations must be made to enable them to ensure the continuity of their traditions.
Minorities and indigenous peoples must therefore be subject to special protection in custody. This would ensure that their right to a fair trial is guaranteed and their dignity respected at all times from the time of their arrest until their release.
- ILO Convention N°169, art.8, 9, 10
- United Nations Declaration on the Rights on Indigenous Peoples, articles 5, 8.1, 34, 35
- Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
- Framework Convention for the Protection of National Minorities, Council of Europe
- Minorities' rights: International standards and guidance for implementation, HCDH
- Special Rapporteur on the rights of indigenous peoples, annual report 2004, E/CN.4/2004/80
- 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 United Nations Special Rapporteur on Minority Issues, A/HRC/22/49/Add.1, 2012
- Special Rapporteur on minority issues, 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