A Monitoring Guide
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LGBTI detainees placed in solitary confinement
Prison authorities may resort to isolating LGBTI detainees in single
cells for their alleged protection, sometimes for weeks, months, or
even years. This can be the result of unilateral decisions by the prison management, and even of informed discussions between prison
authorities and the concerned inmates. In either scenario, LGBTI detainees may end up in a de facto regime of solitary confinement,
defined in the revised Nelson Mandela Rules as the “confinement
of prisoners for 22 hours or more a day without meaningful human
contact” (Rule 44). Even if isolating a vulnerable detainee can be justified as an emergency and short-term measure, while a more adequate solution is identified or while awaiting the detainee’s transfer
to another facility, it should not be used as a long-term solution.
Solitary confinement may in itself constitute an infringement on the
prohibition of torture and other ill-treatment and prolonged solitary confinement (for a time period in excess of 15 consecutive days)
must be prohibited (Rule 43.1), in light of scientific and medical evidence that its harmful psychological effects can become irreversible
after 15 days. The Special Rapporteur on Torture has made clear that
States should ensure that “protective measures do not involve the
imposition of more restrictive conditions on lesbian, gay, bisexual,
transgender and intersex persons than on other detainees.48”
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, A/HRC/31/57, 24 February 2016, para. 70.
48
Chapter III
There is no “one-size-fits-all” answer to the question of the appropriatness of segregating LGBTI detainees from the rest of the prison
population. Even though segregation can sometimes be a matter of
life and death, it is not a long-term solution that tackles the issue
of prison violence stemming from homophobia and transphobia
at its roots. Importantly, monitoring bodies should assess the extent to which LGBTI detainees are involved in the placement decision-making process, as it cannot be assumed that LGBTI detainees
always prefer to be segregated from their fellow inmates. Decisions
on placement should not be irrevocable and LGBTI detainees should
be given the possibility to appeal placement decisions.
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