RISK FACTORS AND SITUATIONS
and consequently reports of violence by law enforcement
officials against metis decreased by 98 per cent. 37
In countries with anti-homosexuality laws, police officers
may feel that abuse will go unpunished. In the case of
Tanzania, where the penalty for consensual sex between
men is 30 years to life in prison, Human Rights Watch
has documented various cases of homosexual and
transgender persons sexually abused and otherwise illtreated by law enforcement officers when arrested. 38
In addition to torture and other ill-treatment, persons
suspected of homosexuality are more likely to be
exposed to a large array of infractions of procedural
safeguards, such as longer time spent in police custody,
denial of legal counsel, or denial of requests to contact
family members, etc. 39
Monitoring bodies should be well aware of the laws,
regulations and procedures regarding arrest and
apprehension and check whether they have been
complied with in cases involving LGBTI detainees.
It is unlikely that monitors will be present at the time
of arrest, but during interviews with the detainees
concerned, they may have the opportunity to assess
whether the arrest was conducted on a discriminatory
basis, the use of force was excessive or whether
means of restraint were used in a prohibited and/or
discriminatory way.
The circumstances of the arrest, notably the location (eg.
police raid in establishments or public area frequented
by sexual minorities), the number of police officers
participating and the timing of the arrest (eg. late in the
night), the language used etc, can prove useful indicators
of police attitudes towards the LGBTI population.
‘No one shall be subjected to arbitrary
arrest or detention. Arrest or detention on
the basis of sexual orientation or gender
identity, whether pursuant to a court order
or otherwise, is arbitrary. All persons under
arrest, regardless of their sexual orientation
or gender identity, are entitled, on the basis
of equality, to be informed of the reasons
for arrest and the nature of any charges
against them, to be brought promptly before a
judicial officer and to bring court proceedings
to determine the lawfulness of detention,
whether or not charged with any offence. […]’
Yogyakarta Principle 7, The rights to freedom from arbitrary
deprivation of liberty
2. Interrogations
Similar to the time of arrest, interrogation is also a period
of particular risk for the abuse and ill- treatment for
LGBTI detainees. Important safeguards include clear
procedures on how to conduct interviews, recording
(or ideally video-recording) of the interrogation, written
records with names of all persons present, and the
presence of the detainee’s lawyer.
Risks are greater for sexual minorities, as additional
threats may be used by law enforcement officers to
extort a confession. For example, police officers may
threaten to reveal the detainee’s sexual orientation
to family members, friends or colleagues to obtain
a confession or a transgender person may even be
brought to the police station on a false pretext in order
to ask them for money or sexual favours in exchange for
their freedom. 40 Bribes and extortion by the police may
occur not only for the purpose of extracting a confession,
but also as a way of securing the person’s release.
In countries where homosexuality is criminalised, the
risk of a confession being extorted is higher, and the
possibility of recourse to law as a means of redress for
such abuses is very limited. In Cameroon, for example,
with most trials for homosexuality based on confessions,
law enforcement officers tend to resort to torture and
ill-treatment in order to obtain the ‘evidence’ they are
looking for.41 Cases have been documented of people
being beaten with truncheons, forced to sleep naked on
the floor, threatened with being killed and filmed with cell
phones by law enforcement officials.42
Monitors may want to enquire during private interviews
with detainees about the ways in which interrogations were
conducted and whether physical abuse or ill-treatment
took place. The general attitude and the language used by
law enforcement officials are key indicators regarding the
treatment of LGBTI detainees. Information from registers,
notably registers of incidents and medical files, can be
useful to cross-check any information gathered.
3. Allocation of transgender
detainees
The allocation of transgender detainees to detention
facilities, and subsequently their placement in units and
cells, should be determined with great caution, and the
detainees concerned should be consulted on whether
they want to be detained in a male or female facility.
The Subcommittee on the Prevention of Torture has
37. Acco Blue Diamond Society (BDS), the leading organisation working on behalf of the LGBTI community in Nepal. See also An activist’s guide to the
Yogyakarta Principles, August, 2010, pp89-91. Available at: www.ypinaction.org/files/02/85/Activists_Guide_English_nov_14_2010.pdf <accessed 7
October 2013>.
38. Human Rights Watch, ‘Treat us like human beings’: discrimination against sex workers, sexual and gender minorities, and people who use drugs in
Tanzania, 18 June 2013.
39. See Coupables par association. Violations des droits humains commises dans l’application de la loi contre l’homosexualité au Cameroun, pp48-51,
Human Rights Watch, 2013.
40. Such cases were documented in Panama, Brazil and Guatemala, see The night is another country. Impunity and violence against transgender women
human rights defenders in Latin America, Redlactrans and International HIV/AIDS Alliance, 2012.
41. Coupables par association. Violations des droits humains commises dans l’application de la loi contre l’homosexualité au Cameroun, Human Rights
Watch, 2013.
42. Ibid., pp44-45.
8 |
Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring
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