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community, it is much more difficult to avoid them through escape. LGBTIQ
people are disproportionally incarcerated, which can be ascribed to stigma,
rigidly-ascribed gender norms, and the consequences of rejection and abuse
of this group in all societies.82 They are also more likely to be ill-treated
and placed in inhuman and degrading material conditions of detention.
They suffer disproportionally from both staff-prisoner and inter-prisoner
violence.83The international standards on the protection of LGBTIQ prisoners
are in a rudimentary stage of development, probably due to the prevailing
attitude towards this group at the national level.
The main tool for the protection of LGBTIQ people in detention are the
non-discrimination provisions of international treaties at the global and
regional level. Although - with few exceptions - they do not mention sexual
orientation and gender identity as prohibited grounds for discrimination,
the jurisprudence and authoritative interpretations of a number of
international bodies have included them among “other status”. Thus,
the ECtHR stressed that discrimination based on sexual orientation is as
serious as discrimination based on “race, origin or colour”.84 The European
Parliament resolution on prison systems and conditions also emphasizes
the protection from discrimination in the treatment of prisoners on grounds
of sexual orientation and gender identity.85
Rule 7 of the Nelson Mandela Rules provides that no prisoner shall be
received in prison without a valid commitment order. According to this
rule, the information, entered in the prisoner file management system
upon admission of every prisoner should include “precise information
enabling determination of his or her unique identity, respecting his or
her self-perceived gender”.86 The aim of this measure is to enable the
prison authorities to ensure the safety of the prisoners, based on their
self-expressed identities, as well as to provide for their specific needs.
In its ninth annual report, the SPT included a small section on the
82. APT, Towards the Effective Protection of LGBTI Persons Deprived of Liberty: A Monitoring Guide, Geneva,
December 2018, p. 21.
83. Ibid., pp. 21-22; Robinson, R. “Masculinity as Prison: Sexual Identity, Race, and Incarceration”, 99
Cal. L. Rev. 1309 (2011), pp. 1386, 1405.
84. ECtHR, Vejdeland and Others v. Sweden, No. 1813/07, Judgment of 9 February 2012, § 55.
85. European Parliament, Prison systems and conditions, para 24.
86. The Nelson Mandela Rules, Rule 7a.
Prisoners in a Situation of Vulnerability
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