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This section will give you an introduction to the issue of discriminatory detention without charge, the legal framework and suggest ideas about what you could do if you or someone in your community has been detained discriminatorily.
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”.
Your right not to be discriminated against can be found in a range of international treaties.
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”.
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.
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.
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:
“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.
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.
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.
Not all cases of differential treatment (potential direct discrimination) or disproportionate impact (potential indirect discrimination) will be discrimination if the actions or policies involved:
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:
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:
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.
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:
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.
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?