INTRODUCTION criminal justice system.8 The Special Rapporteur on Torture has encapsulated well the particular situation of sexual minorities in detention: ‘[They] are often considered as a sub-category of prisoners and detained in worse conditions of detention than the larger prison population. The Special Rapporteur has received information according to which members of sexual minorities in detention have been subjected to considerable violence, especially sexual assault and rape, by fellow inmates and, at times, by prison guards. Prison guards are also said to fail to take reasonable measures to abate the risk of violence by fellow inmates or even to have encouraged sexual violence, by identifying members of sexual minorities to fellow inmates for that express purpose. Prison guards are believed to use threats of transfer to main detention areas, where members of sexual minorities would be at high risk of sexual attack by other inmates. In particular, transsexual and transgendered persons, especially male-to-female transsexual inmates, are said to be at great risk of physical and sexual abuse by prison guards and fellow prisoners if placed within the general prison population in men’s prisons.’9 Owing to their regular visits to places of deprivation of liberty and subsequent reports to the authorities, monitoring bodies – including National Preventive Mechanisms (NPMs)10 – can play a pivotal role in helping to ensure that LGBTI detainees are protected and treated on an equal basis with other detainees. In doing so, monitoring bodies should bear in mind the principle of ‘do no harm’ and avoid identifying LGBTI detainees to staff and other inmates against their will and thereby exposing them to an even higher risk of abuse or victimisation. ‘States shall […] ensure independent oversight of all places of detention by bodies that are adequately mandated and equipped to identify arrests and detentions that may be motivated by the sexual orientation or gender identity of a person.’ Yogyakarta Principle 7 (D), The right to freedom from arbitrary deprivation of liberty The specific country context and the particular place of detention will be relevant in determining an appropriate strategy for monitors, including whether or not they should proactively reach out to speak to LGBTI detainees during a visit. The aim of this paper is to outline the main risk factors and situations to which LGBTI persons are exposed when they are deprived of their liberty in the criminal justice system, as well as to propose possible avenues of action that could be taken by monitoring bodies. 8. The paper only considers situations of risks for LGBTI persons in the criminal justice system. However, it is clear that some of the considerations analysed in this document may be relevant for other places where persons are or may be deprived of their liberty. For abuses towards LGBTI persons in other settings, see for example: Review of homophobic bullying in educational institutions, UNESCO, 12 March 2012; or people seeking asylum in immigration centres, in Discrimination on grounds of sexual orientation and gender identity in Europe, Council of Europe, 2d Edition, pp62-69, 2011. It is also worth mentioning the report of the Special Rapporteur on Torture on torture and ill-treatment in health-care settings, which includes a section about LGBTI persons, A/HRC/22/53, para76-79, 1 February 2013. 9. See Report of the Special Rapporteur to the UN General Assembly, 3 July 2001, A/56/156, para.23. 10. National Preventive Bodies (NPMs) are independent institutions established under the Optional Protocol to the United Nations Convention against Torture (OPCAT). Their mandate is to prevent torture and other ill-treatment in places of deprivation of liberty by inter alia regularly visiting places of detention and addressing recommendations to state authorities. Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring |3

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