International Criminal Justice Caucus: Position Paper for the WCAR

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 theWorld Conference Against Racism, Racial Discrimination, Xenophobia & RelatedIntolerance to:

1. Bring to the urgent attention of this Conference the seriousness and extent of racist and racially discriminatory laws, policies and practices in criminal justice and prison administration systems throughout the world;

2. Ensure the amendment of the Declaration and Programme of Action to reflect the seriousness and extent of such laws, policies and practices, and to identify the causes, victims, methods of prevention, and remedies for such laws, policies and practices, and provide strategies for their eradication.

CONCERNS

The Criminal Justice Caucusnotes with deep concern that the issue of racism, racial discrimination,xenophobia and related intolerance within criminal justice and prison systemsand law enforcement agencies are not addressed in the Draft Declaration andProgramme of Action.

The Criminal JusticeCaucus considers it essential that the World Conference Against Racismadequately addresses the issues of racism within criminal justice and prisonsystems.

Groups Most Vulnerable to Racism, Racial Discrimination, Xenophobia & Related Intolerance

Persons who are vulnerable toracism or racial discrimination within the criminal justice system includepersons who belong to any minority, racial, ethnic, national, linguistic,religious group or caste, indigenous peoples, migrants, and asylum-seekers andrefugees who are placed in detention centres pending the outcome of a requestfor asylum.

Compounding factors which increase the likelihood of discriminationwithin 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 orcountries in conflict.

Manifestations of Racism, Racial Discrimination, Xenophobia & Related Intolerance

Racism or racial discrimination occurs in multiple forms and at allstages within the criminal justice and prison systems, and in many instancesleads to serious violations of fundamental human rights.

Within law enforcementagencies, it occurs during the period of investigation, prior to or at themoment of arrest in the form of unreasonable searches, stops or seizures, aspart of the decision to charge a person with a criminal offence, and during anyperiods spent in police custody.

Legal provisions may be racially discriminatory, including automaticdetention of asylum seekers and refugees, and the expulsion of foreign nationalsafter completion of sentence, regardless of their links with their country oforigin, resulting in “double jeopardy” punishment.

Discrimination occurs as aresult of the systemic lack of protection of vulnerable persons, includingignorance of local laws and culture, ignorance of the local language and lack ofaccess to translators/ interpreters at critical stages of the criminalproceeding, fragile or illegal residential status, inability to access, or lackof financial resources for, an adequate defence.

Court decisions or administrative procedures often result in raciallydiscriminatory outcomes such as overtly or covertly prejudicial judicial or jurydecisions, disproportionately harsh sentencing (including the death penalty),and a lack of understanding of cultural differences, or of the very stressesrelated to being a member of a vulnerable group.

Vulnerable groups also sufferracial discrimination whilst serving sentences of the court: They may beassigned onerous prison sentences, even when non-custodial options exist; theymay be physically, linguistically, and culturally isolated in active or passiveways during prison detention; they may be the victims of hatred, harassment,dehumanisation or violence by prison inmates and staff, and they may sufferdifficulties in obtaining discretionary release, such as remission or parole.

Vulnerable groups may alsosuffer disproportionate hardship and stigmatisation after conviction, and/ orrelease, such as reintegration into the society, due to lack of access tocultural and economic support resources, accommodation and employment.

World Conference Against Racism, Racial Discrimination,

Xenophobia & Related Intolerance - Durban, South Africa

INTERNATIONAL CRIMINAL JUSTICE CAUCUS: RECOMMENDATIONS

The Criminal Justice Caucus strongly recommends that a specific Chapterentitled CRIMINAL JUSTICE beadded 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 inaccordance with the International Convention on the Elimination of All Forms ofDiscrimination all forms of legislation,policies or practices that havethe purpose or effects of discrimination against any person on the basis ofrace, religion, nationality, language, caste, ethnicity, or minority or refugessstatus, through the full integration of international instruments relevant toracism into national laws, regulations and administrative practices, and theidentification and elimination at the national level of institutionalised racismexisting in the policies, procedures, practices and culture of public or privatecriminal justice institutions.

2. To give specialconsideration to the concerns and needs of women, youth, persons of Africandescent, indigenous peoples, sexual minorities, disabled persons, the poor, andpersons living in situations or countries in conflict, who are affected by thecriminal justice system, as well as to the incarceration and withholding oflegal rights and services to asylum seekers and refugees.

3. To abolish the use of deathpenalty, giving particular consideration to the documented fact thatthroughout the world it is frequently used disproportionately against peoplebelonging to racial ethnic and national minorities

4. To eradicate the impunityof law enforcement and correctional personnel, or other criminal justiceofficers, who engage in racist behaviour, including thorough investigationand disciplinary or criminal sanctions for abuses of power of a racistcharacter, reviewing policing operations to ensure they are not raciallydiscriminatory, by providing full, rapid, and effective independentinvestigations of complaints against public officials, by effectively monitoringand acting arbitrary detention of vulnerable persons.

5. To take effective measuresto prevent the criminalisation and racialprofiling of affected people at all levels of society. Such measures shouldinclude a clear prohibition of reliance on race, ethnic, or other group statusin the exercise of enforcement, prosecutorial or judicial discretion and reviewof laws, policies and guidelines to ensure that they do not have a disparateimpact.

6. To develop policies thatprohibit the use of excessive force bylaw enforcement officers, focusing specially on non-lethal forms of arrestof suspects, should provide increased sanctions against actions motivated byrace, religion, gender or other differences, and should instruct law enforcementofficials on alternatives to the use of force and the proportionate levels offorce and if it is required.

7. To recognise the right of travel which is infringed in many countries on thebasis of race, colour and immigrants status, resulting in arbitrary arrest,detention, strip searches, temporary incarceration and other forms ofharassment.

8. To recognise the right to a translator and/or interpreter, free of charge, at allstages of the criminal justice process, in particular during policeinterrogation and the court process.

9. To provide prompt andregular access to diplomaticrepresentatives for foreigner nationals.

10. To ensure that affectedpersons are provided with clear andcomprehensive explanations with respect to the reason/s for any arrest,detention or legal proceedings, any charge/s against them, their legalrights and how to exercise them.

11. To recognise the right to,and to provide equal access to anadequate and effective criminal defense for all affected persons.

12. To take concrete andimmediate steps to stop the exploitation of thelabour of incarcerated people, especially people of African descent,foreigners, and ethnic, linguistic and religious minorities, who areover-represented in prison systems across the globe.

13. To implement stringentreview and regulation of private prisons.

14. To enforce strict andregular monitoring, inspection andcontrol mechanims in all places of detention, especially where vulnerablegroups are over-represented.

15. To give specialconsideration to the concern thatforeigners, migrants, asylum seekers, and refugees are increasinglycriminalized through unnecessary, arbitrary or unlawful detention and negativerepresentation in the media and by politicians.

16. To ensure that asylum seekers are not subjected to criminal or other punishment onthe basis of any illegal entry orpresence. In particular, the detention of asylum seekers should be a measure oflast resort only and subject to periodic judicial review, with an absolutemaximum duration for detention specified in national law, and with strict andregular inspections by independent bodies.

17. To ensure that asylumsekers should be held in special immigration detention centers in conditionsappropriate to their status and not with persons charged with or convicted ofcriminal offenses.

18. To provide immigrationofficers with sufficient training in laws relating to refugees as well as humanrights situation in refugees’ country of origin.

19. To give special attentionto the rights of refugees and asylum seekers to access to adequate and effectiverepresentation and prompt judicial proceedings.

20. To ensure that in nocircumstances should unaccompagniedminors be placed in isolation, detention centers or transit zones atnational border.

21. To give special attentionto specific groups such as documented or undocumented migrants asylum seekersand refugees to provide necessary information and legal assistance in the event of ill-treatment and tortureperpetrated on the basis of racial discrimination.

22. To require regular qualitativemonitoring and data collectionand compilation by race, colour, nationality, ethnicity, gender, and age todetermine whether any aspects of the criminal and penal justcie system are beingadministrered in a discriminatory manner, and they should ensure the publicationand dissemination of any findings.

23. To use modalities ofaffirmative 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 prisonpersonnel at all levels.

24. To implement race-awareness training andmonitoring of criminal justice system officers, including law enforcement,prison and correctional personnel, judges, and prosecution and defence lawyers.

25. To provide specificprogrammes for the social rehabilitationof affected persons upon release from prison or completion of a prisonsentence.

26. To develop effective remedies, including remedies against government agenciesand officers, for victims of racial and other forms of discrimination who havebeen disparately impacted, disproportionately targeted and sentenced to deathdue to their race, nationality, ethnic background, religious believes or otherdifferences.

27. To ensure that the prisonpopulation has full access to physicaland mental health services, including preventative, diagnostic and curativeservices, which are provided in a timely fashion are appropriate to their needs.

28. To ensure that theincarcerated population has full accessto educational programmes and facilities.

29. To eradicate the practiceof punishing minors with sentences reserved for adults, which hasdispropotionately affected vulnerable persons

Caucus Contacts:

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

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