80.The existence of torture and ill-treatment in places of detention is not a chance occurrence; rather, it is fostered by legislative neglect and judicial inactivity that create a breeding ground for these practices. Progress can be achieved in this area through “effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” (art. 2, para. 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which applies to all signatories to the Optional Protocol). B. Indigenous justice and the prevention of torture 1. Cultural diversity and indigenous justice 81.The protection and promotion of the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples. 82.Respect for cultural diversity implies building an equal relationship between cultures and overcoming imbalances in power relationships based on ideas of superiority or inferiority. It also presupposes that any traditional practice from any culture, including that of the West, which infringes the dignity of individuals and peoples will be challenged. 2. Concept of indigenous justice 83.The recognition of indigenous justice forms part of the collective rights of indigenous peoples as set out in international human rights law. International Labour Organization (ILO) Convention No. 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries establishes that indigenous and tribal peoples “shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights” (art. 8, para. 2). 84. The United Nations Declaration on the Rights of Indigenous Peoples recognizes that indigenous peoples have the right to maintain and strengthen their own legal institutions (art. 5) as well as the right not to be subjected to forced assimilation or destruction of their culture (art. 8, para. 1). This international instrument further establishes that indigenous peoples have the right to promote, develop and maintain, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards (art. 34) and to determine the responsibilities of individuals to their communities (art. 35). 3. Relationship between the national justice system and the indigenous justice system 85. The coexistence of various legal systems within territories that are under the jurisdiction of a single State represents a crucial challenge for building relationships based on interculturality. The relationship between the national justice system and the indigenous justice system must be based on an equal valuation and recognition of the legal system (whether it be of a positive, customary or mixed nature) and of the authorities who have the power to apply it. A relationship based on respect, cooperation and communication is indispensable. 86. The indigenous justice system should be considered as part of a whole and as having a dialectical and intercultural relationship with the national justice system, so that each system can inspire and enrich the other. This “legal interculturality” is clearly reflected in ILO Convention No. 169, which establishes that “in applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws”, for which purpose “procedures shall be established … to resolve conflicts which may arise in the application of this principle” (art. 8). 4. Limits of the national justice system in proceedings against indigenous persons 87. In cases where the national justice system has jurisdiction over persons of indigenous cultural backgrounds, adequate legal instruments need to be provided to enable, where appropriate, an assessment of the responsibility of these persons (taking into account, for example, cultural predispositions or other grounds that might justify an exemption from criminal liability). In such cases, it is always preferable to try the case within the indigenous justice system. 88.Clearly, any form of imprisonment imposed on indigenous persons by public authorities – including traditional authorities who may, in exceptional cases, hold the person in custody – should be the exception, not the rule. In such circumstances, and especially when the detention is illegal, there is a higher risk of torture or cruel, inhuman or degrading treatment. 89.The legitimacy of detention must be judged according to its lawfulness and proportionality and, in the case of indigenous persons, must take into account various other principles to ensure that it is not an arbitrary measure that carries a risk of torture. This means that, in addition to the legal safeguards that apply to every individual in custody, particular care must be taken to ensure: (a)That indigenous persons are informed, in their own language, of the reasons for their detention and of their rights; (b)That their close family or, failing that, the authorities of their community are informed of their detention; (c)That, from the moment they are detained, they have access, free of charge, to a public defender who speaks their language (or who has an interpreter) and who is familiar with indigenous law or its basic principles, including the possibility of having the matter handled wholly within the indigenous justice system where applicable, or of calling on cultural or anthropological expertise; (d)That all authorities involved in any way in matters of detention, investigation or sentence enforcement (for example, the public defender’s office, the public prosecution service, the criminal investigation police, the officiating judges and other justice officials, and the prison authorities) are familiar with and uphold, with discretion and with a view to taking affirmative action, the minimum legal safeguards and the rights of indigenous persons as recognized by the relevant international instruments;