CONCEPTS AND PROTECTIVE FRAMEWORK from arbitrary deprivation of liberty (Principle 7), the right to a fair trial (Principle 8), the right to treatment with humanity while in detention (Principle 9), and the right to freedom from torture and cruel, inhuman or degrading treatment or punishment (Principle 10). take protective measures against physical assault, rape and other forms of sexual abuse, whether committed by other inmates or staff; measures should be taken so as to adequately protect and respect the gender identity of transgender persons’.26 Successive mandate holders of the Special Rapporteurship on torture and other cruel, inhuman or degrading treatment or punishment have also played a crucial role in bringing attention to the fate of sexual minorities deprived of their liberty and advocating for better protection from abuse and violence. In his interim report to the United Nations General Assembly dated 3 July 2001,24 the Special Rapporteur dedicated a section to the issue of torture and discrimination against sexual minorities. He highlighted questions of their specific vulnerability to torture and ill-treatment, including restricted access to complaint procedures and medical treatment, harassment and violence by the police when arrested for alleged offences or when lodging a complaint, and conditions of detention which may create de facto a sub-category of prisoners.25 The Council of the European Union (EU) adopted on 24 June 2013 ‘Guidelines to promote and protect the enjoyment of all human rights by Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons’,27 which also consider situations of deprivation of liberty. The guidelines invite officials of EU institutions and EU Member States to inter alia ‘[c]ontact a state prosecutor, police authority or an established and independent visiting body to ask for permission to visit places of detention in order, for example, to assess the situation of LGBTI persons in detention’ and ‘[s]uggest that international monitoring bodies have a special focus on LGBTI persons during their visits to places of deprivation of liberty’. There are also relevant developments at the regional level and in the case law of regional human rights courts. In 2010, the Council of Europe Committee of Ministers issued a recommendation to member states on measures to combat discrimination on grounds of sexual orientation or gender identity. Recommendation 4 is to ‘ensure the safety and dignity of all persons in prison or in other ways deprived of their liberty, including lesbian, gay, bisexual and transgender persons, and in particular The Inter-American Commission on Human Rights, which has established a special unit on the Rights of LGTBI persons, regularly addresses the issue of LGBTI rights through its various rapporteurships, including the rights of LGBTI persons deprived of their liberty. For example, the Rapporteur on the Rights of Migrant Workers and their Families has expressed his concern and distress about the use of solitary confinement in US immigration detention facilities ‘to ostensibly provide personal protection for vulnerable immigrant detainees, including homosexuals [and] transgender detainees’.28 24. See Report of the Special Rapporteur to the UN General Assembly, 3 July 2001, A/56/156, C. paras.17-25. 25. The UNODC’s Handbook on prisoners with special needs also includes a chapter dedicated to LGBTI prisoners. The Handbook outlines the issues faced by LGBTI persons in prison and recommends measures to address them, including on access to justice, complaints procedures, healthcare, detention conditions, protection needs and contact with family. It emphasises that ‘[t]he main and most important need of LGBT prisoners is protection from sexual abuse and rape, generally perpetrated by other prisoners’: UNODC, Handbook on prisoners with special needs, 2009. 26. Recommendation CM/Rec(2010)5 adopted by the Committee of Ministers on 31 March 2010 at the 1081st meeting of the Ministers’ Deputies. Available at: https://wcd.coe.int/ViewDoc.jsp?id=1606669 27. Council of the European Union, Guidelines to promote and protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and intersex persons (LGBTI), Foreign Affairs Council Meeting, 24 June 2013. 28. See ‘IACHR visits US immigration detention facilities’, Inter-American Commission on Human Rights press release No. 53/09. Available at: www.cidh. org/ Comunicados/English/2009/53-09eng.htm <accessed 7 October 2013> 6 | Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring