A/70/212
28. The Optional Protocol to the Convention against Torture requires, inter alia,
the establishment of independent national preventive mechanisms empowered to
carry out visits to all places of detention; the Protocol specifies that the mechanisms
should include “adequate representation of ethnic and minority groups in the
country”. 37
D.
Representation of minorities in pretrial detention
29. Throughout the world, minorities tend to be overrepresented in pretrial
detention. 38 Possible reasons for this tendency vary. For example, minorities are
often disproportionately represented among poorer socioeconomic groups where
patterns of offending may be higher in respect of certain crimes. 39 Particular
provisions of substantive criminal law may have a discriminatory effect, for
instance, when the practice of a minority religion may be interpreted as an offen ce
against a majority religion. 40 Or, while the incidence of crime may be similar to that
in the majority population, detection in minority communities may be higher owing
to profiling practices by the police, or disproportionate targeting of minority
communities, leading to higher rates of arrest. 41 Police and other authorities may
show less leniency in relation to minor offences committed by minorities compared
with other groups.
30. Minorities may face more frequent or longer periods of pretrial detention
owing to: lack of access to a lawyer; lesser quality of the lawyers assigned to them;
discriminatory attitudes shown by police and prosecutors, 42 judges or even the
lawyers assigned to defend them; ill preparedness with respect to responding to
criminal procedures owing to poverty, stigmatization or lack of knowledge; or
__________________
37
38
39
40
41
42
10/27
Optional Protocol to the Convention against Torture, article 18 (2) and fourth annual report of the
Subcommittee on Prevention of Torture (CAT/C/46/2 (2011), para. 107 (j).
See OSF, Presumption of Guilt (2014) pp. 49-50; PRI/APT Factsheet on Pre trial Detention
(available from http://www.penalreform.org/wp-content/uploads/2013/11/Factsheet-1-pre-trialdetention-v10_final2.pdf), accessed 18 May 2015. UN mechanisms observations:
CCPR/C/USA/CO/4 (Human Rights Committee, 2014), para. 6; CERD/C/AUT/CO/18-20
(CERD, 2012), para. 13; CERD/C/BEL/CO/16-19 (CERD, 2014); A/HRC/19/53/Add.3 (WGAD
visit to Germany, 2012), para. 63; CERD/C/NZL/CO/18-20 (CERD, 2013); A/HRC/27/68
(WGPAD report on access to justice, 2014), para. 57; A/HRC/24/52/Add.2 (WGPAD visit to
Panama, 2013), paras. 62 and 63; E/CN.4/2006/7 (12 December 2005), paras. 65-67 and 84;
Committee against Torture, CAT/C/FIN/CO/5-6 (2011); Luanda Guidelines, p. 10; and
Inter-American Commission on Human Rights report on juvenile justice and human rights in the
Americas (2011), para. 114.
Michael Tonry, “Race, ethnicity, crime and immigration”, in Sandra M. Bucerius and Michael
Tonry eds., The Oxford Handbook of Ethnicity, Crime and Immigration (Oxford, Oxford
University Press, 2014).
Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of
Iran(A/HRC/25/61) (2014), paras. 35-43 (religious minorities).
Working Group on Arbitrary Detention (WGAD), E/CN.4/2006/7 (12 December 2005), para. 65;
Human Rights Watch, “Race, drugs and law enforcement in the United States”, 19 June 2009;
and A/HRC/24/52/Add.2 (WGPAD mission to Panama, 2013), para. 63. See also Open Society
Justice Initiative, Addressing Ethnic Profiling by Police, 2009.
E.g., CERD/C/KGZ/CO/5-7, para. 6 (CERD, Kyrgyzstan, regarding minority of Uzbek origin);
and CAT/OP/KGZ/1 and Corr.1, para. 23 (report of the visit of the Subcommittee on Prevention
of Torture, 2014).
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