CONCEPTS AND PROTECTIVE FRAMEWORK particular vulnerability while in detention. They are exposed to the risk of human rights violations and abuses from the very moment of their arrest to the time of their release. Globally, lesbian, gay and bisexual detainees represent a small percentage of prison populations,17 and transgender detainees are even fewer in number in most contexts. This small percentage may contribute to the neglect this group faces in detention, regarding their protection as well as their specific needs. As stated by the Special Rapporteur on torture: ‘While no relevant statistics are available to the Special Rapporteur, it appears that members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment, because they fail to conform to socially constructed gender expectations.’18 2. Protective framework As mentioned above, international law fails to provide explicit protection from abuse and violence for LGBTI persons, let alone for their treatment while in detention. However, Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights (ICCPR) provides that no one must be subjected to torture or to cruel, inhuman or degrading treatment or punishment.19 Article 9 (1) of the ICCPR also establishes that ‘[n]o one shall be subjected to arbitrary arrest or detention. Nobody shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law’. In addition, the dignity of all persons deprived of liberty – LGBTI people included – has to be upheld at all times and in all circumstances, as stated in Article 10 (1) of the ICCPR.20 International human rights law provides general protection based on the core human rights principle of non-discrimination. Article 26 of the ICCPR states that ‘[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Although human rights treaties do not explicitly mention sexual orientation and gender identity, lists of discrimination grounds are generally non-exhaustive, and usually include ‘other status’ which should be read to include discrimination based on sexual orientation and gender identity.21 The recently revised Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)22 do not incorporate explicit guidance on LGBTI prisoners, but reiterate the principle of non-discrimination based on ‘any other status’, and incorporate (in Rule 2) the general obligation of prison administrations to ‘take account of the individual needs of prisoners, in particular the most vulnerable categories in prison settings’, also stipulating that: ‘measures to protect and promote the rights of prisoners with special needs are required and shall not be regarded as discriminatory’. The Subcommittee for the Prevention of Torture (SPT) has emphasised that ‘the principle of equality and non-discrimination not only results in the prohibition of different treatment when it is arbitrary (…), but also implies the obligation to establish differentiated measures when those are reasonable, necessary and proportional, precisely in order to guarantee human rights’.23 Implementation of the opportunity to make complaints, including through a legal adviser or family member (Rule 56, revised Standard Minimum Rules), and safeguards to prevent ‘any risk of retaliation, intimidation or other negative consequences as a result of having submitted a request or complaint (Rule 57) may also have particular relevance for LGBTI detainees. In response to the scarcity of specific protection for LGBTI persons and the fragmented and inconsistent response from the international community, a highlevel meeting was organised in the Indonesian city of Yogyakarta in November 2006, gathering human rights experts from diverse regions and backgrounds, including a former UN High Commissioner for Human Rights, UN Special Procedures’ mandate holders, members of treaty bodies, judges, academics, NGOs and others. The outcome document, the Yogyakarta Principles, outlines a set of international human rights principles relating to sexual orientation and gender identity. Various Principles are of relevance for LGBTI persons in contact with the criminal justice system, including the right to freedom 17. According to surveys conducted by Her Majesty’s Inspectorate of Prisons (HMIP) (UK), about 4 per cent of people detained in prisons identify themselves as LBGTI compared to only 0-2 per cent of people held in police custody. However, collected data is thought to underestimate the true figure, as people may be concerned that the information gathered could be used against them. 18. See Report of the Special Rapporteur to the UN General Assembly, 3 July 2001, A/56/156, para.19. 19. In its concluding observations to states, the United Nations Committee against Torture (CAT) raises its concerns regarding attacks or other abuse by members of the police, armed forces or prison staff against members of the LGBT community. See for example: Committee against Torture, Concluding observations on the combined fifth and sixth periodic reports of Peru, adopted by the Committee at its forty-nine session (29 October – 23 November 2012). Available at: http://reproductiverights.org/sites/crr.civicactions.net/files/documents/crr_Peru_CAT_concluding_observations.pdf <accessed 7 October 2013>. 20. ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’ 21. Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, paras.21-22; Committee on the Rights of the Child, General Comment No. 4: Adolescent Health, para. 6; Committee on Economic, Social and Cultural Rights, General Comment No. 20: Nondiscrimination in Economic, Social and Cultural Rights, paras.27, 32. See also jurisprudence of the European Court of Human Rights in relation to Article 14 of the European Convention on Human Rights, for example X v. Turkey (Application no. 24626/09), 9 October 2012. 22. The revised United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), adopted by the UN Commission on Crime Prevention and Criminal Justice on 22 May 2015, endorsed by the Economic and Social Council on 9 September 2015, E/RES/2015/20 and adopted by UN General Assembly Third Committee on 5 November 2015, A/C.3/70/L.3. (At the time of printing this Resolution was pending adoption by the plenary of the UN General Assembly.) 23. Eighth annual report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 26 March 2015, para. 59. Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring |5