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).
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