Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers In X. v. Turkey,247 the homosexual applicant requested to be placed in a cell with other homosexual inmates. However, no other homosexual persons were detained in the facility at the time, so he was placed in solitary confinement. The ECtHR found that this violated his right to freedom from inhuman and degrading treatment, as he was deprived of all social relations and access to the outdoors, and was kept in a very small cell, for more than 13 months. The ECtHR acknowledged that the applicant needed protection from physical and mental abuse, but found that the fear of such abuse did not justify completely isolating the applicant from other inmates. This section focuses on discrimination in prison based on gender identity. People whose gender identity does not correspond with the sex assigned at birth are commonly referred to as transgender persons. This group includes persons who wish at some point in their life to undergo gender reassignment treatments, as well as persons who ‘cross-dress’ or persons who do not, or do not want to, consider themselves exclusively as being ‘men’ or ‘women’”.248 As of today, the situation of transgender prisoners has not been well researched, with most contributions from academia covering the United Kingdom, the United States, Canada and Australia. According to this research, transgender prisoners are more likely to experience high levels of social marginalisation; do not always receive the necessary professional medical assistance to start or continue with their hormone treatments, which can cause serious physiological and/or psychological health problems; and face a higher risk of abuse than the general prison population, especially with regard to sexual assault.249 The treatment of transgender prisoners is alarming, and their extreme vulnerability in the criminal justice system needs to be highlighted. Access to justice is extremely challenging, as LGBTI persons “may be further subjected to victimization by the police, including verbal, physical and sexual assault and rape”250 when arrested for an alleged offence because of possible homophobic or transphobic tendencies among police officers.251 Body searches, from as early on as the first arrest to first admission to a detention facility, pose a serious threat to maintaining the dignity of the prisoner, whose wish of having the search performed by a police officer with a different gender often remains unheard.252 Further 247 ECtHR, X. v. Turkey, 24626/09, 9 October 2012, para. 42. 248 FRA (2013), p. 8. 249 Castagnoli, C. (2010); Sexton, L. et al. (2009); Jeness, V. (2009) (presented at the California Department of Corrections and Rehabilitation Wardens’ Meeting); Penal Reform International (2013). 250 UNODC (2009), p. 105. 251 Council of Europe (2011), Chapter IV (26); ECtHR, G.G. v. Turkey, No. 10684/13, 24 November 2012, Third Party Intervention as of 31 March 2013, Section C (16). 252 UNODC (2009), pp. 118 and 121. 80 disrespectful treatment by prison authorities or lack of access to gendered clothes or makeup complicates transgender prisoners’ stay in detention.253 Other prisoners pose an additional threat to transgender persons, especially transwomen, who are “highly overrepresented as victims of […] sexual crimes”254 while in detention.255 Prison guards may not interfere when an LGBTI person gets assaulted or raped, or may even “facilitate sexual violence [themselves]”. 256 In such cases, complaints about the assaults are often not treated appropriately. Health is another issue due to the higher frequency of sexually transmitted diseases, like HIV and AIDS, among LGBTI prisoners, with prison rape even increasing this number.257 Necessary medication is not available at all times, nor are prisoners always adequately medically treated after an assault has occurred.258 Another point of criticism is the allocation and accommodation of prisoners. Even though prisoners should be involved “in decisions regarding the place of detention appropriate to their sexual orientation and gender identity”,259 transgender persons are usually placed in prisons according to the gender on their birth certificate, where they face a higher risk of sexual assault.260 To avoid the risk of sexual harassment or abuse, transgender prisoners are often placed in solitary confinement, which is an unjustified response that amounts to aggravated punishment.261 After two transwomen committed suicide in all-male prisons in the United Kingdom, the House of Commons released a briefing paper on transgender prisoners in December 2015. Pursuant to this, “prisoners must be located according to their gender as recognised by UK law”. In the case of a prisoner requesting a transfer to a prison “opposite to their gender as recognised by law”, senior prison staff is in charge of reviewing every individual case together with medical and other experts. In the case of the above-mentioned transwomen, the transfer to a female facility was in one case not granted and in the other not requested.262 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) addressed gender identity for the first time in its report on Austria. 253 ECtHR, G.G. v. Turkey, No. 10684/13, 24 November 2012, Third Party Intervention as of 31 March 2013, Section E (27). 254 UNODC (2009), p. 105. 255 UN, GA (2001), para. 23. 256 UNODC (2009), p. 106. 257 Ibid., p. 107. 258 Ibid., p. 108. 259 Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, March 2007, principle 9c. 260 UNODC (2009), pp. 105–108; ECtHR, Bogdanova v. Russia, No. 63378/13, 19 September 2013, para. 24. 261 UNODC (2009), p. 108; ECtHR, G.G. v. Turkey, No. 10684/13, 24 November 2012, Third Party Intervention as of 31 March 2013, Section E (26). 262 United Kingdom, House of Commons Library (2015).