As mentioned previously, access to legal aid is critical in preventing infringement upon
fundamental rights such as right to a fair trial and right to equality before the law. Access to legal
aid is particularly important during criminal proceedings, including on appeal and other related
proceedings, as the likelihood of wrongful convictions and violation of due process rights
increase exponentially without advice of a lawyer. For members of minority groups, in particular,
the risk is even higher due to direct and indirect discrimination discussed above. For some
minority communities, their exclusion from the dominant group may even result in some
minority defendants not even being aware of their basic rights such as the right a court-appointed
lawyer due to exclusion resulting from language barriers and declining the assistance of the
lawyer in fear of having to pay for the legal services. A good practice in enhancing protection for
members of minority groups in this regard is raising awareness on the rights of the accused,
particularly in marginalized and socially disadvantaged communities where members of minority
groups are concentrated, delivered in the language spoken by such minorities.
Another essential measure in protecting rights of individuals belonging to a minority
group in judicial proceedings is for States to take remedial action on those legislation and
practice with an unjustifiable disparate impact groups distinguished by race, descent or ethnic
origin, such as mandatory sentencing laws. States should review their legislation, policies and
practices and take affirmative action to prevent or end policies with such unjustified
discriminatory impact.
2. Measures to increase diversity in criminal justice system professionals
As with law enforcement officials and prison staff, international good practice indicates
that the makeup of judges, prosecutors and other professionals in the criminal justice system
must also reflect the ethnic, racial, cultural and religious diversity of the community-at-large.
Judges and prosecutors should also be trained in issues relating to cultural and religious diversity
so as to foster an understanding of the special needs of minority groups in criminal justice
systems. This in turn contributes to reducing overt discrimination against defendants from
minority groups and mitigates the risk of infringing upon the fundamental rights such as the right
to a fair trial and right to equality before the law.
VIII. Conclusion
This joint written submission has identified gaps and challenges in the field of minority
protection in the criminal justice context. By suggesting practical measures and good practices
that can contribute to filling such gaps and protect the human rights of individuals belonging to
minority groups, the Network aims to assist in identifying ways to engage with stakeholders in
preventing and addressing possible contributing factors to discrimination in criminal justice
processes. Through its Action Plan to support the implementation of the Guidance Note, the
Network is available to support the recommendations of the 8th session of the Forum on Minority
Issues.
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