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Safeguards for special categories of detainees

All detained people have the right to equal treatment without discrimination on the grounds of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status. Particular allowances should, however, be made for the rights and needs of special categories of detainees including women, juveniles, elderly people, foreigners, ethnic minorities, people with different sexual orientation, people who are sick, people with mental health problems or learning disabilities, and other groups or individuals who may be particularly vulnerable during detention. Some groups may be targeted for discriminatory abuse by the staff of the institution where they are detained. They may also be vulnerable to abuse from other detainees.

Women in detention

The Human Rights Committee has expressed concern at the practise of allowing male prison officers access to women’s detention centres, which has led to serious allegations of sexual abuse of women and the invasion of their privacy.[1] It has also stated that female staff should be present during the interrogation of female detainees and prisoners and should be solely responsible for conducting body searches.[2]

The Standard Minimum Rules for the Treatment of Prisoners state that women in custody should be supervised by female members of staff.[3] They should also either be held in separate institutions, or segregated within an institution, under the authority of female staff. No male staff should enter the part of the institution set apart for women unaccompanied by a female member of staff.[4] In institutions where women are held in custody, facilities for pre-natal and post-natal care and treatment must be provided.[5] Whenever possible, arrangements should be made for children to be born in a hospital outside the institution.[6] The UN Special Rapporteur on Torture has recommended that states should provide gender-sensitive training for judicial and law enforcement officers and other public officials.[7]

Juvenile detainees

Some specific obligations with respect to the use of pre-trial detention in cases involving children are found in the Convention on the Rights of the Child. The Convention applies to children up to the age of 18, who would normally be regarded as juveniles within most criminal justice systems. Article 37 emphasises that the detention of children – pre-trial or any other form – should be a measure of last resort and used for the shortest appropriate period of time. It requires due account to be taken of the needs of children who are deprived of their liberty and that they should be kept separately from adults unless it is considered in their best interest not to do so. Article 39 obliges states, inter alia, to promote physical and psychological recovery and social reintegration of a child victim of torture or any other form of cruel, inhuman or degrading treatment or punishment as well as any form of neglect, exploitation, or abuse.

People with mental health problems

The Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care state that: ‘All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.’[8] ‘All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.’[9]

The Standard Minimum Rules for the Treatment of Prisoners also state that people with mental health problems shall not be detained in prisons and ‘shall be observed and treated in specialized institutions under medical management.’[10]

[1] Observations of the Human Rights Committee: USA, UN Doc. CCPR/C/79/Add.50, 7 April 1995, para.20.

[2] Human Rights Committee, General Comment 16, (Twenty-third session, 1988), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 21 (1994), para. 8.

[3] Standard Minimum Rules 8(a) and 53.

[4] Ibid.

[5] Rule 23.

[6] Ibid.

[7] Report of the UN Special Rapporteur on Torture, UN Doc. E/CN.4/1995/34, p. 8.

[8] Principle 2.

[9] Principle 3.

[10] Standard Minimum Rules para. 82.