
The International Criminal Justice Caucus' Position Paper for the WCAR
Durban, South Africa
31 August – 7 September 2001
OBJECTIVES
The International Criminal Justice Caucus urges all Participants in the
World Conference Against Racism, Racial Discrimination, Xenophobia & Related
Intolerance to:
CONCERNS
The Criminal Justice Caucus
notes with deep concern that the issue of racism, racial discrimination,
xenophobia and related intolerance within criminal justice and prison systems
and law enforcement agencies are not addressed in the Draft Declaration and
Programme of Action.
The Criminal Justice
Caucus considers it essential that the World Conference Against Racism
adequately addresses the issues of racism within criminal justice and prison
systems.
Persons who are vulnerable to
racism or racial discrimination within the criminal justice system include
persons who belong to any minority, racial, ethnic, national, linguistic,
religious group or caste, indigenous peoples, migrants, and asylum-seekers and
refugees who are placed in detention centres pending the outcome of a request
for asylum.
Compounding factors which increase the likelihood of discrimination
within these existing categories of vulnerable persons include gender, age
(in particular children and young persons), sexual orientation, disability,
economic status, and social origin, and persons living in situations or
countries in conflict.
Racism or racial discrimination occurs in multiple forms and at all
stages within the criminal justice and prison systems, and in many instances
leads to serious violations of fundamental human rights.
Within law enforcement
agencies, it occurs during the period of investigation, prior to or at the
moment of arrest in the form of unreasonable searches, stops or seizures, as
part of the decision to charge a person with a criminal offence, and during any
periods spent in police custody.
Legal provisions may be racially discriminatory, including automatic
detention of asylum seekers and refugees, and the expulsion of foreign nationals
after completion of sentence, regardless of their links with their country of
origin, resulting in “double jeopardy” punishment.
Discrimination occurs as a
result of the systemic lack of protection of vulnerable persons, including
ignorance of local laws and culture, ignorance of the local language and lack of
access to translators/ interpreters at critical stages of the criminal
proceeding, fragile or illegal residential status, inability to access, or lack
of financial resources for, an adequate defence.
Court decisions or administrative procedures often result in racially
discriminatory outcomes such as overtly or covertly prejudicial judicial or jury
decisions, disproportionately harsh sentencing (including the death penalty),
and a lack of understanding of cultural differences, or of the very stresses
related to being a member of a vulnerable group.
Vulnerable groups also suffer
racial discrimination whilst serving sentences of the court: They may be
assigned onerous prison sentences, even when non-custodial options exist; they
may be physically, linguistically, and culturally isolated in active or passive
ways during prison detention; they may be the victims of hatred, harassment,
dehumanisation or violence by prison inmates and staff, and they may suffer
difficulties in obtaining discretionary release, such as remission or parole.
Vulnerable groups may also
suffer disproportionate hardship and stigmatisation after conviction, and/ or
release, such as reintegration into the society, due to lack of access to
cultural and economic support resources, accommodation and employment.
World Conference Against Racism, Racial
Discrimination,
Xenophobia & Related Intolerance - Durban,
South Africa
The Criminal Justice Caucus strongly recommends that a specific Chapter
entitled CRIMINAL JUSTICE be
added to the draft Programme of Action as follows :
The World Conference Against Racism, Racial Discrimination, Xenophobia
& Related Intolerance calls upon Governments :
1.
To remove or amend in
accordance with the International Convention on the Elimination of All Forms of
Discrimination all forms of legislation,
policies or practices that have
the purpose or effects of discrimination against any person on the basis of
race, religion, nationality, language, caste, ethnicity, or minority or refugess
status, through the full integration of international instruments relevant to
racism into national laws, regulations and administrative practices, and the
identification and elimination at the national level of institutionalised racism
existing in the policies, procedures, practices and culture of public or private
criminal justice institutions.
2.
To give special
consideration to the concerns and needs of women, youth, persons of African
descent, indigenous peoples, sexual minorities, disabled persons, the poor, and
persons living in situations or countries in conflict, who are affected by the
criminal justice system, as well as to the incarceration and withholding of
legal rights and services to asylum seekers and refugees.
3.
To abolish the use of death
penalty, giving particular consideration to the documented fact that
throughout the world it is frequently used disproportionately against people
belonging to racial ethnic and national minorities
4.
To eradicate the impunity
of law enforcement and correctional personnel, or other criminal justice
officers, who engage in racist behaviour, including thorough investigation
and disciplinary or criminal sanctions for abuses of power of a racist
character, reviewing policing operations to ensure they are not racially
discriminatory, by providing full, rapid, and effective independent
investigations of complaints against public officials, by effectively monitoring
and acting arbitrary detention of vulnerable persons.
5.
To take effective measures
to prevent the criminalisation and racial
profiling of affected people at all levels of society. Such measures should
include a clear prohibition of reliance on race, ethnic, or other group status
in the exercise of enforcement, prosecutorial or judicial discretion and review
of laws, policies and guidelines to ensure that they do not have a disparate
impact.
6.
To develop policies that
prohibit the use of excessive force by
law enforcement officers, focusing specially on non-lethal forms of arrest
of suspects, should provide increased sanctions against actions motivated by
race, religion, gender or other differences, and should instruct law enforcement
officials on alternatives to the use of force and the proportionate levels of
force and if it is required.
7.
To recognise the right of travel which is infringed in many countries on the
basis of race, colour and immigrants status, resulting in arbitrary arrest,
detention, strip searches, temporary incarceration and other forms of
harassment.
8.
To recognise the right to a translator and/or interpreter, free of charge, at all
stages of the criminal justice process, in particular during police
interrogation and the court process.
9.
To provide prompt and
regular access to diplomatic
representatives for foreigner nationals.
10.
To ensure that affected
persons are provided with clear and
comprehensive explanations with respect to the reason/s for any arrest,
detention or legal proceedings, any charge/s against them, their legal
rights and how to exercise them.
11.
To recognise the right to,
and to provide equal access to an
adequate and effective criminal defense for all affected persons.
12.
To take concrete and
immediate steps to stop the exploitation of the
labour of incarcerated people, especially people of African descent,
foreigners, and ethnic, linguistic and religious minorities, who are
over-represented in prison systems across the globe.
13.
To implement stringent
review and regulation of private prisons.
14.
To enforce strict and
regular monitoring, inspection and
control mechanims in all places of detention, especially where vulnerable
groups are over-represented.
15.
To give special
consideration to the concern that
foreigners, migrants, asylum seekers, and refugees are increasingly
criminalized through unnecessary, arbitrary or unlawful detention and negative
representation in the media and by politicians.
16.
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 judicial review, with an absolute
maximum duration for detention specified in national law, and with strict and
regular inspections by independent bodies.
17.
To ensure that asylum
sekers should be held in special immigration detention centers in conditions
appropriate to their status and not with persons charged with or convicted of
criminal offenses.
18.
To provide immigration
officers with sufficient training in laws relating to refugees as well as human
rights situation in refugees’ country of origin.
19.
To give special attention
to the rights of refugees and asylum seekers to access to adequate and effective
representation and prompt judicial proceedings.
20.
To ensure that in no
circumstances should unaccompagnied
minors be placed in isolation, detention centers or transit zones at
national border.
21.
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 ill-treatment and torture
perpetrated on the basis of racial discrimination.
22.
To require regular qualitative
monitoring and data collection
and compilation by race, colour, nationality, ethnicity, gender, and age to
determine whether any aspects of the criminal and penal justcie system are being
administrered in a discriminatory manner, and they should ensure the publication
and dissemination of any findings.
23.
To use modalities of
affirmative action to include people affected by racial discrimination,
xenophobia or other forms of intolerance in the recruitment, hiring training,
retention, and promotion of law enforcement, criminal justice and prison
personnel at all levels.
24.
To implement race-awareness training and
monitoring of criminal justice system officers, including law enforcement,
prison and correctional personnel, judges, and prosecution and defence lawyers.
25.
To provide specific
programmes for the social rehabilitation
of affected persons upon release from prison or completion of a prison
sentence.
26.
To develop effective remedies, including remedies against government agencies
and officers, for victims of racial and other forms of discrimination who have
been disparately impacted, disproportionately targeted and sentenced to death
due to their race, nationality, ethnic background, religious believes or other
differences.
27.
To ensure that the prison
population has full access to physical
and mental health services, including preventative, diagnostic and curative
services, which are provided in a timely fashion are appropriate to their needs.
28.
To ensure that the
incarcerated population has full access
to educational programmes and facilities.
29.
To eradicate the practice
of punishing minors with sentences reserved for adults, which has
dispropotionately affected vulnerable persons
Caucus Contacts:
Abigail Hansen, Penal Reform International: ahansen@penalreform.org
Elsa
Le Pennec,
World Organisation Against Torture: elp@omct.org
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