Discriminatory Detention

Equality and non-discrimination are at the bedrock of international human rights law and many constitutions.

Example: Article 1 of the Universal Declaration of Human Rights (“UDHR“)

“All human beings are born free and equal in dignity and rights”.

(a) The Right to Non-Discrimination

Your right not to be discriminated against can be found in a range of international treaties.

Example: International Covenant on Civil and Political Rights

Article 2: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 26: All persons are equal before the law and entitled without discrimination to equal protection of the law. Law shall prohibit discrimination and guarantee all persons equal and effective protection against discrimination.

Similar rights are usually part of a national constitutions and other laws in specific areas.

Example: Constitution of Bangladesh

The Constitution of Bangladesh states “all citizens are equal before the law and are entitled to equal protection under the law”.

(b) The Right to Non-Discrimination and the Right to Liberty

The right to non-discrimination also connects with other rights. For example, if you have been detained in a way that is discriminatory, this doesn’t just mean that the right to non-discrimination has been violated, it also means that the detention will be arbitrary and a violation of the right to liberty.

Key Resource: UN Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court

Discriminatory detention is one of the categories of arbitrary detention as determined by the United Nations Working Group on Arbitrary Detention.

Discriminatory detention happens when someone is detained by reason of a protected characteristic.

(a) By Reason of a Protected Characteristic

All types of discrimination must occur by reason of a “protected characteristic” or “protected ground”. These include race, colour, sex, gender identity, language, religion, political or other opinion, national or social origin, property, birth or other status.

To have a claim for discrimination, your detention must be by reason of a protected characteristic that:

• You actually have (e.g. you are a Buddhist);
• Other people think you have (e.g. people think you are a Buddhist, but you are not); or
• That you are associated with (e.g. you have friends and family who are Buddhist).

“By reason of” means there must be some causal link between your protected characteristic and your detention. This is most clear when you have been detained because you have protected characteristic. Establishing this connection is can be difficult but is key to proving discriminatory detention.

(b) Types of Discrimination

(i) Direct discrimination

This happens when someone, because of a protected characteristic, is treated less favourably than someone else in comparable situation. For example, if a black person and a white person do the same thing, but only the black person is detained, there would be direct discrimination because the black person is being treated less favourably than the white person.

Example: Mukong v Cameroon (UN Human Rights Committee)

Mr. Mukong was a journalist, writer and opponent of the one-party system in Cameroon. He was arrested following an interview with the BBC in which he criticised the President of Cameroon and its Government. He was detained without charge for a prolonged period, despite repeated requests for information on the reason for his detention. The UNHRC found that his detention was discriminatory because Mr M was detained due to his political opinions.

Another example of direct discrimination could be where one group is intentionally targeted in a policy of mass arrests.

(ii) Indirect discrimination

This happens when there is an apparently neutral rule, policy or practice that disproportionately affects a particular group. For example, if there is a law that allows people to be detained for wearing head scarves, this could amount to indirect discrimination against Muslims and Sikhs, who are more likely to wear head scarves.

(c) The Differential Treatment of or Disproportionate Impact Must not Be Justified

Not all cases of differential treatment (potential direct discrimination) or disproportionate impact (potential indirect discrimination) will be discrimination if the actions or policies involved:

• Pursue a legitimate aim, such as public security; and
• They are a reasonable and proportionate way to achieve that aim.

An example of a justifiable reason to detain one person and not another could be may releasing a woman whilst detaining a man where both are accused of the same crime, because there are only safe detention facilities for men.

This approach has also been adopted in many national constitutions:

Example: Constitution of the Republic of Ghana

The Constitution of Ghana says that “every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual … but subject to respect for the rights and freedoms of others and for the public interest“.

However, even if there was initially a justifiable reason for detention, continued detention can also be discriminatory. Potential examples are:

• If someone is held in detention for longer than someone else because they speak a different language, cannot participate in legal processes due to language barriers and are not provided with a translator; or
• If a bail bond is set at a disproportionately high level that you cannot afford, there could be discrimination on the grounds of property or class.

Example: Marcos Antonio Aguilar-Rodriguez (United States of America)

Mr. Aguilar-Rodrigez was a national of El Salvador who lived in the USA after fleeing El Salvador. In 2011 he was stopped by police for speeding, but never received a speeding ticket. The police alleged that he was intoxicated and served a 13-day jail term. Instead of being released, he was transferred to Immigration and Customs Enforcement where he was detained for 6 years.

Bail was initially set at $6,000 which was unaffordable for Mr. Aguilar-Rodriguez. Also, no Spanish-language information or translator was provided despite Mr. Aguilar-Rodriguez’s poor English.

He complained to the UN Working Group on Arbitrary Detention, which concluded this was discriminatory detention on economic and language grounds, as he was only detained due to his inability to pay a bail set disproportionately high, and could not make full use of appeal procedures due to his lack of English-language skills.

If you or someone in your community is being held in detention discriminatorily, consider the following steps.

(a) Gather Evidence

In any type of legal case, you need to prove to a court that your “version of events” (i.e. what you are saying happened) actually happened. To prove your case, you will need evidence.

Examples of useful evidence for discriminatory detention include:

• Records of your detention: There should be an official record of anyone who is held in a police station or detention facility and the length of time they were held in custody. This should be requested from the relevant police station;
• Records of charge: There should be an official record of your charge, including the time it was communicated to you and the content of the charge (i.e. what crime were you charged with). This should be requested from the relevant police station;
• Witness statements: You may need to get statements from witnesses to confirm length of detention and the circumstances surrounding the detention. This could be from a family member or legal representative that knew of the time of your arrest and accompanied you at the time of the charge. For more information on witness statements, see the A4J Witness Statement Guide;
• Court documents: If the judge gave written reasons for authorising your detention, denying you bail, denying you an interpreter, it is important you request a copy of these reasons;
• Discriminatory behaviour of law enforcement officials: Did a police officer say something discriminatory to you at the time of arrest or detention? Did the judge say something discriminatory in their reasoning when they ruled you could be detained? This could be important in proving discrimination and should be supported by evidence, such as a witness statement or court documents;
• Evidence of previous threat of detention, made directly to you or indirectly to a group that you may be part of, particularly if reasons cited refer to your protected characteristics such as sexuality, religion or ethnicity; and
• Comparator statistics: NGO reports or public government reports that provide national statistics on the detention of certain groups and the reasons they are detained could provide useful context if you are alleging discrimination.

If you have evidence contradicting the reason provided for your arrest, these may be useful in showing a lack of legitimate reason and suggesting discrimination.

(b) Think About Taking Legal Action

If you believe you have been detained discriminatorily, there will usually be possibilities for you to take legal action against the police or the State outside of the criminal justice process (i.e. in a separate case from the criminal investigation the police are bringing against you). These options will be outlined in How Can I Take Legal Action?