Non-discrimination and the protection of persons with increased vulnerability in the administration of justice, in particular in situations of deprivation of liberty and with regard to the causes and effects of overincarceration and overcrowding

Background

This report is submitted pursuant to Human Rights Council resolution 30/7, in which the Council requested the United Nations High Commissioner for Human Rights to submit a report on non-discrimination and the protection of persons with increased vulnerability in the administration of justice, in particular in situations of deprivation of liberty and with regard to the causes and effects of overincarceration and overcrowding, drawing on the experience of United Nations and regional human rights mechanisms and seeking the views of States, including on their policies and best practices, civil society and other relevant stakeholders.

Summary

According to article 26 of the International Covenant on Civil and Political Rights, States should ensure that “all persons are equal before the law”. However, laws may target specific groups in a discriminatory manner, or criminalize certain behaviours attributable primarily to specific groups of persons, even without explicitly identifying them. In such cases, legislation may have a disproportionate and discriminatory impact on persons with increased vulnerability, resulting in their overincarceration.

Equality and non-discrimination are even more important in circumstances where persons with increased vulnerability are deprived of their liberty, as they are even less able to challenge their detention and take action against discriminatory situations. The present report addresses the nexus between non-discrimination and situations of deprivation of liberty.

It highlights first the impact of discrimination on overcrowding and overincarceration, before focusing on the particular impact that overcrowding and overincarceration in places of detention have, in turn, on persons with increased vulnerability.

States must take steps to protect the human rights of all individuals detained, and should pay specific attention to the additional challenges faced by persons with increased vulnerability in situations of deprivation of liberty, including as a result of over-incarceration and overcrowding.