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Monitoring protection mechanisms / Events / South Africa / 2001 / August

South Africa: International Criminal Justice Caucus: Recommended Amendments to Draft programme of action of the WCAR

Recommended Amendments to the draft programme of action AGAINST RACISM, RACIAL DISCRIMINATION, XENOPHOBIA and related intolerance (a/conf.189/pc.3/8)

II. VICTIMS OF RACISM, RACIAL DISCRIMINATION, XENOPHOBIA AND RELATED INTOLERANCE

Sub-title – Migrants

37. Urges States:

(d) To monitor and ensure/pay increased attention to the non-discriminatory/fair and equitable treatment of migrants and refugees/non-nationals, regardless of their status, including asylum‑seekers and refugees, as well as members of minority groups, detained by public authorities; specifically, these detainees should receive effective legal assistance and, where appropriate, the assistance of a competent interpreter free of charge, at all stages of their detention, particularly during interrogation; (ADOPTED (without recommended changes) 3/8)

(e) To ensure that police, prison and detention facility personnel and immigration authorities respect, among other aspects, the standards regarding dignified and non-discriminatory treatment of migrants, through specialized training courses for administrators, police officers, immigration officials, prison and detention facility personnel and other interested groups; (ADOPTED (without recommended changes) 1/8)

Sub Title : Refugees

i. Urges States to ensure that racism, racial discrimination, xenophobia or related intolerance do not result in decisions of deportation to another State where are grounds for believing that the deportee would be in real danger of being subjected to torture.

ii. Calls States to reaffirm their commitment to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol and to ensure that all measures relating to asylum seekers and refugees are fully in accordance with these instruments, in particular the principle of « non-refoulement » and recognize the effect arbitrary detention of asylum seekers and undocumented migrants.

iii. Urges States to pay special attention to cases of torture, ill-treatment or any kind of violence perpetrated on the basis of racism, racial discrimination, xenophobia and related intolerance against asylum seekers and refugees.

New 40 :

Urges States to recognize the effect arbitrary detention of asylum seekers and undocumented persons and to reaffirm their commitment to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol and to ensure that all measures relating to asylum seekers and refugees are fully in accordance with these instruments, in particular the principle of « non-refoulement » (article 33 of the 1951 Convention relating to the Status of Refugees)

Sub Title : Other victims

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Urges States to pay special attention to situations of racism, racial discrimination, xenophobia and related intolerance when designing policies, strategiea and programmes for children, and in particular to ensure that, in no circumstances, should unacommpagnied minors be placed in isolation, detention centers or transit zones at national borders.

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Urges States to ensure that asylum seekers are not subjected to criminal or other punishment on the basis of any illegal entry or presence . In particular, the detention of asylum seekers should be a measure of last resort only and subject to periodic judiciail review, with an absolute maximum duration for detention specified in national law, and with strict and regular inspections by independent bodies. States should ensure that asylum seekers be held in special immigration detention centers in conditions appropriate to their status and not with persons charged with or convicted of criminal offenses.

III. MEASURES OF PREVENTION, EDUCATION AND PROTECTION AIMED AT THE ERADICATION OF RACISM, RACIAL DISCRIMINATION, XENOPHOBIA AND RELATED INTOLERANCE AT THE NATIONAL, REGIONAL AND INTERNATIONAL LEVELS

A. National level

1. Legislative, judicial, regulatory, administrative and other measures to prevent and protect against racism and related discrimination

87. Urges States, non-governmental organizations and the private sector to compile and publish statistics on incidents and complaints of police brutality within law enforcement and correctional agencies on a regular basis to determine whether criminal justice policies or programmes have an unjustified disparate impact on racial and ethnic minorities, with a view to identifying and eliminating these practices. These statistics should include the race, ethnicity and gender of the perpetrator and the victim;

88. Urges States to work with law enforcement and correctional agencies in designing, implementing and enforcing effective policies and programmes to prevent, detect and ensure full, timely and effective investigation and civil or criminal accountability for incidents of misconduct by police or correctional personnel motivated by race or ethnic origin, to prosecute such misconduct, and in particular to eliminate “racial profiling” by law enforcement officials or the use of race or ethnicity as the sole basis for determining if an individual is engaged in criminal activity;

89. Urges States, non-governmental organizations and the private sector:

(a) To create and implement policies that promote high-quality and diverse personnel within criminal justice systems police force free from discrimination on the basis of race, and recruit actively all groups, including minorities, into public employment, including the law enforcement, correctional police force and other agencies within the criminal justice system (including members of the judiciary, such as prosecutors, and public defenders);

90 bis (i) Urges States to provide where necessary translators and interpreters, free of charge, at all stages of the criminal justice process, in particular during police interrogation and court procedures, and provide prompt and regular access to diplomatic representatives for foreign nationals at all stages of the criminal justice process.

90 bis (ii) Urges States to recognise the right, and to provide equal access, to an adequate and effective criminal defence for all vulnerable groups.

90 bis (iii) Urges States to take concrete steps to cease the exploitation of the labour of incarcerated persons, particularly members of vulnerable groups who are over-represented within prison systems, and to implement stringent review and regulation of private prisons.

90 bis (iv) Urges States to provide specific programmes for the social reintegration of vulnerable persons upon release from prison or completion of a criminal sentence.

90 bis (v) Urges States to cease the practice of punishing minors with sentences reserved for adults, which practice has disproportionately affected vulnerable persons.

Prosecution of perpetrators of racist acts

109. Urges States to carry out exhaustive, timely and impartial investigations of all acts of racism and racial discrimination and to prosecute offences of a racist or xenophobic nature ex officio, to ensure that criminal prosecution of offences of a racist or xenophobic nature is given high priority and is actively and consistently undertaken, to ensure the right to equal treatment before the tribunals and all other organs administering justice. In this regard, the World Conference underlines the importance of fostering awareness and providing training to the various agents in the criminal justice and correctional systems to ensure fair and impartial application and administration of the law. In this regard, the World Conference draws attention to the importance of collecting and publishing adequate data, broken down by sex and age, on the number and nature of racist and xenophobic incidents or offences, the number of cases prosecuted or the reasons for non‑prosecution and the outcome of prosecutions. In this respect, it recommends that anti‑discrimination monitoring services be established;

Establishment and reinforcement of independent specialized national institutions and

Mediation

110. Urges States, as appropriate, to establish, strengthen, review and reinforce the effectiveness of human rights bodies/institutions, [(public defenders, human rights attorneys, specialised ombudsmen, etc.)] which must [should] have the following characteristics:

2. Policies and practices

Data collection and disaggregation, research and study

121 bis. Urges Governments, non-governmental organisations and the private sector to take steps to facilitate and improve regular qualitative and quantitative monitoring, collection analysis, publication and dissemination of data, disaggregated by race and ethnicity, to reduce disparities in access to justice, particularly access to justice within criminal justice and penal systems, and to determine whether any aspects of criminal justice and penal systems are being administered in a racially discriminatory manner.

Action-oriented policies and action plans, including affirmative action to ensure non‑discrimination, in particular as regards access to social services, employment, housing, education, health care, etc.

124. Urges States to take concrete measures to promote equality based on the elimination of gender and racial prejudice in all fields through, inter alia, improving access to education, health care, employment, justice and other basic services to promote full enjoyment of economic, social and cultural rights;

125. Urges States to establish, on the basis of existing statistical information, national programmes, including affirmative action positive measures, to promote the access of individuals and groups affected by or vulnerable to racism, racial discrimination, xenophobia and related intolerance indigenous people, [people of varying descent,] migrants and other ethnic, racial, cultural, religious and linguistic groups or minorities to education, justice, medical care and basic social services, including primary education and basic health care;

129. Urges States to prevent and eliminate, where they exist, racially discriminatory policies and practices in access to public and private employment, business opportunities, development programmes [and occupation], education, housing, justice and health care and to promote policies which seek to improve the prospects of targeted groups facing, inter alia, the greatest obstacles in finding, keeping or regaining work, including skilled employment. Particular attention should be paid to persons subject to multiple discrimination;

130. Urges Governments to counter social exclusion and marginalization of racial, ethnic, cultural, religious, linguistic and national minorities, in particular by providing de facto equal access to education, health services, employment, justice and housing;

3. Education and awareness raising measures

Training of professional groups in public administration and in administration of justice

169. Requests States, wherever appropriate through cooperation with intergovernmental organizations, national institutions, non-governmental organizations and the private sector, to organize and facilitate training courses or seminars about international norms prohibiting racial discrimination and their applicability in domestic law, as well as on the application of international human rights standards such as obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, for prosecutors, members of the judiciary and other public officials. It calls upon States to provide wide-ranging education for their law enforcement officials, in particular members of the police force and correctional personnel, in combating stereotypes that provoke violence on their part, particularly against people of African descent [and recognize that the successful completion of such training programmes be made one of the criteria for promotion is essential for effective policing and correctional administration];

170. Urges States to pay specific attention to the negative impact of racism, racial discrimination, xenophobia and related intolerance on the administration of justice and fair trial, in particular within criminal justice systems, and to conduct nationwide campaigns, amongst other measures, to raise awareness among State organs and public officials concerning their obligations under the International Convention on the Elimination of All Forms of Racial Discrimination and other relevant instruments; ADOPTED at 2nd PrepCom

171. Urges States to develop anti-racist and gender-sensitive human rights training for personnel in the administration of justice, law enforcement agencies, correctional personnel, security and health-care services, schools and migration authorities, paying particular attention to immigration officials, border police and staff of migrant detention centres, as well as for United Nations personnel;

172. Urges countries receiving migrants to strengthen the human rights training and awareness-raising activities designed for immigration officials, border police and staff of migrant detention centres and prisons, local authorities, other civil servants in charge of enforcing laws, as well as teachers, with particular attention to the human rights of migrants, in order to prevent racial conflicts and avoid situations where prejudices lead to decisions based on racism, racial discrimination, xenophobia or related intolerance;

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Urges States to provide immigration officials, border police and staff of migrants detention centers with sufficient training in laws relating to refugees as well as human rights situation in refugees country of origin.

IV. PROVISION OF EFFECTIVE REMEDIES, RECOURSE, REDRESS (COMPENSATORY) AND OTEHR MEASURES AT THE NATTIONAL, REGIONAL AND INTERNATIONAL LEVELS

Legal assistance

192. Urges States to provide victims of racial discrimination with / facilitate access to all appropriate methods of justice and legal assistance in a manner adapted to their specific needs and vulnerability, including exemption from fees, simplification of procedures, legal representation and establishment, as appropriate, of specially adapted jurisdictions to deal with such cases…

Additions recommended :

…and to provide to specific groups, including migrants, asylum seekers and refugees, with legal assistance in the event of torture, ill-treatment or any kind of violence perpetrated on the basis of racism, racial discrimination, xenophobia and related intolerance.

Or

…and to provide legal assistance to victims in the event of torture, ill-treatment or any kind of violence perpetrated on the basis of racism, racial discrimination, xenophobia and related intolerance.

Or

Urges States to provide victims of racial discrimination, …such as specific groups including documented and undocumented migrants, asylum seekers, refugees, … with / facilitate access to all appropriate methods of justice and legal assistance …in the event of torture, ill-treatment or any kind of violence perpetrated on the basis of racism, racial discrimination, xenophobia and related intolerance, … in a manner adapted to their specific needs and vulnerability, including exemption from fees, simplification of procedures, legal representation and establishment, as appropriate, of specially adapted jurisdictions to deal with such cases…

Alternative

… and to ensure effective officials procedures through which individuals can raise complaints of ill-treatment and torture perpetrated on the basis of discrimination, unequal access to justice and related concern and ensure that all alleged victims have access to needed information, support and legal aid, as appropriate. ( Contribution of the CAT to the preparatory process for the WCAR, A/CONF.189/PC.2/17)

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Urges States to give special attention to specific groups, such as documented or undocumented, migrants, asylum seekers and refugees to provide necessary information and legal assistance in the event of torture, ill treatment or any kind of violence perpetrated on the basis of racial discrimination.

V. STRATEGIES TO ACHIEVE FULL AND EFFECTIVE EQUALITY, INCLUDING INTERNATIONAL COOPERATION AND ENHANCEMENT OF THE UNITED NATIONAL AND OTHER INTERNATIONAL MECHANISMS IN COMBATING RACISM, RACIAL DISCRIMINATION, XENOPHOBIA AND RELATED INTOLERANCE AND FOLLOW-UP

International legal framework

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New para. 219 bis :

Urges States to reaffirm their commitment to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol and to ensure that all measures relating to asylum seekers and refugees are fully in accordance with these instruments.

Caucus Contacts:

Abigail Hansen, Penal Reform International: ahansen@penalreform.org

Elsa Le Pennec, World Organisation Against Torture: elp@omct.org

Properties

Date: August 22, 2001
Activity: Monitoring Protection Mechanisms
Type: Events
Country: South Africa

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