Panelists argue how racial, religious and gender discrimination can negatively affect the most vulnerable and what can be done to mitigate it

The 4th International Conference on Access to Legal Aid in Criminal Justice Systems (ILAC) arrives on its fourth and final day of panels - before the closing session this Friday (18) - with an important agenda: racial, gender, ethnic and religious types of discriminations and its impacts. Based on the guiding topic of “Combating Systemic Ethnic-Racial Discrimination”, experts discussed the imprisonment of women, police violence and the importance of minorities representation through civil society entities, among other hot topics in Brazil and globally. Three different panels were held on the same subject at different time zones so as to better accommodate the needs of attendees worldwide.  

Violence and representativeness

The panel focused on the Americas began with the impressive testimony of Ana Paula de Oliveira, from the NGO “Mães de Manguinhos”, whose 19-year-old son, Jonathan, was murdered by the police in 2014. She stressed the importance of the Manguinhos Social Forum (which brings together people who have experienced human rights violations), whether in providing psychological support or facilitating access to justice. “Most favela residents are not aware of their rights and do not know what to do when these are violated.”

She noted that victims of police violence also tend not to press charges because they fear retaliation or arrest upon arrival at the police station, which ends up resulting in the lack of any criminal investigation. “Hence the importance of having a public defender at the police station to ensure our right to report a crime and be treated with respect.” Finally, Ana Paula highlighted the importance of the so-called “APDF of the favelas” (Supreme Court Decision), which halted police operations in slum areas during the pandemic, resulting in a 73% reduction in the number of homicides.

Another episode of police violence addressed, this time by Masha Lisitsyna, Senior Manager Legal Officer of the Criminal Justice Cluster - the Open Society Justice Initiative, was what became known as “the red room”. It involved the torture of young, black slum residents inside an army barracks. The case, which is still awaiting final trial, has gained notoriety and may change the way police violence is handled in Brazil.

The Black Public Defender Association, of which she is Co-founder and Chair, was the subject of April Frazier Camara’s lecture. She underlined the importance of the organization for the black community in the USA, which has been subject to police violence for decades.

Conference attendees had the opportunity to learn a little about the Philippine prison system, the most overcrowded in the world, with an occupancy rate of 350%. Raymund E Narag, Associate Professor at the University of Southern Illinois School of Justice and Security, blames it on excessive bureaucracy and widespread poverty, since 53% of prisoners could be released on bail (often of negligible value), but most simply cannot afford them. 

Ill-advised public policies to combat drug abuse and smuggling also contribute to overcrowding given that drug-related crimes are responsible for 70% of arrests. Another relevant issue is the excessive use and length of pre-trial detention. “Pre-trial detainees remain in prison for 529 days on average but 20% stay for five years or more.”

In general, the poorest and least educated tend to be detained for longer, as do women and LGBTQI compared to men and, interestingly, according to Narag, Muslims compared to Catholics. In order to deal with the situation of overcrowding and recidivism, the government plans to re-evaluate conditions for granting bails, enhance crime screening, facilitate payment conditions and offer post-release social assistance. 

Persecution of activists and media

The first panel of the day focused on militarization and conflicts involving ethnic or religious minorities, especially in the border areas of Asian countries, as reported by Patrick Burgess, Co-founder and President of Asia Justice and Rights (AJAR). “In certain regions of Thailand, the Philippines, Indonesia, Myanmar, among others, there is a lot of discrimination, which leads to conflicts and difficulty in obtaining legal assistance.” The persecution of lawyers and activists and media censorship are also points of concern.

In some countries, there has been a return to militarism and totalitarianism, with government resorting to emergency powers to abuse human rights. In Thailand, for instance, committees have been set up to deal with the impacts of COVID-19, but these collegiate bodies are composed mainly of armed forces personnel, generally averse to disclosure and accountability. 

To make matters worse, during the pandemic, refugee camps were closed to the outside world, making it virtually impossible to get information on residents or provide them with legal support. “With the pandemic, few eyes are turned to the developing world; progress that took us years to achieve is fading in a matter of months”, says Burgess. 

Hand in hand 

Pornpen Khongkachonkiet, Director of The Cross Cultural Foundation (CrCF), spoke specifically about Thailand, a Buddhist country of 70 million inhabitants marked by conflicts with a Muslim minority of about 2 million living on the border with Malaysia.

She points out that the country is going through a very difficult democratization process, since it is being ruled by the military forces who “walk hand in hand with the monarchy” and exercise its powers to persecute opponents. The Supreme Court has declared martial law and has acted against minorities in the south. “The government started making arrests and committing abuses without any concern. Thousands of people have been killed since 2004.” 

To serve this minority group, a Muslim activism center was established in the southern border to bring together legal and psychological services. The idea, explains the activist, is to have a safe space for these people so they can have a little dignity.

Generational traumas

Speaking of Aboriginal people, David Woodroffe, Principal Legal Officer at the Northern Australian Aboriginal Justice Agency (NAAJA), said they suffer from discrimination and difficulties to accessing justice. “They live in distant communities without any basic services.” 

In his opinion, the Australian judicial system should take aboriginal persons peculiarities into account when determining sentences and referring cases, which is not the case. There is, according to Woodroffe, generational trauma that originated in the colonization period and had perpetuated ever since. A consequence of this trauma and one of the main barriers to justice access at present is language, which also makes social integration harder.

 Aboriginals suffer from over-incarceration and poor health conditions, leading to a higher incidence of disease and considerably lower life expectancies. Still, their well-being does not seem to be a government priority, according to the NAAJA representative. During the pandemic, the organization managed to protect basic legal aid rights for Aboriginal people. Other organizations have also devoted themselves to reduce over-incarceration and systemic discrimination toward this minority group.

Condemned to poverty

In India, the vast majority of detainees are members of ethnic, religious or less-favored minority groups. “There is structural prejudice in the Indian justice system that perpetuates itself”, says Preeti Pratishruti Dash, Associate at Project 39A of the National Law University in New Delhi. She reports police violence and torture as well as the lack of basic information to defendants.

It is common for those accused of heinous crimes to hire private lawyers and, to that end, sell everything they own. Without resources and income alternatives, they end up condemning the whole family to poverty. Nevertheless, in many cases, these people will only meet their lawyer in the courtroom, and they often end up being sentenced to death. Families, in addition to financial losses, are left with enormous psychological damage.

The 39A organization offers free legal aid to vulnerable groups and seeks to gather statistical data on the prison system, forensics and torture, “a difficult task in most developing countries”, asserts Dash.

Ethnic discrimination

In the second session of the day, focused on Europe, Africa and the Middle East, Bruno Min, Legal Director at Fair Trials, pointed out immigrants are blamed for all social woes experienced in the old continent. He cites the specific case of Roma, who live in Eastern Europe and suffer immense discrimination, especially in the Czech Republic and Bulgaria. “This is the kind of prejudice that is rarely recognized.”

European governments have shown little interest in producing and disseminating hard data on these ethnic minority groups - as well as the discrimination towards them. According to Min, this is a way of denying the reality of discrimination on the continent, with obvious effects on access to justice systems. “There is also discrimination among lawyers themselves, who are reluctant to assist these individuals on the grounds that they are ‘difficult to deal with’ and may not be able to afford legal assistance.”

At the end of his presentation, the expert took the opportunity to appeal to representatives of civil society to gather more efforts so as to better understand the reality of these groups.
Striking past

In South Africa, despite the changes brought by the end of the Apartheid regime, challenges related to racial hatred persist. “There is still evidence of clear segregation in the country”, argue Dunstan Mlambo, Judge President of the Gauteng Division of the High Court of South Africa, adding that the pandemic only served to exacerbate these differences.

The Constitution ensures the right to equal treatment and human dignity, but that is not what happens in practice. “South African society still needs to get rid of the gears of Apartheid.”

Examples of racial discrimination are everywhere: in police operations centered in black-majority neighborhoods as well as limited access to legal aid and better jobs. “Racism influences wages and even the likelihood of an individual getting a loan from the bank.”

Fortunately, there are several initiatives in place to help the most vulnerable. In Mlambo’s view, transformation is key. “It is necessary to change the mindset and the way business is conducted on a daily basis. We need to use our historical knowledge to make sure the same things won't happen again.” But perhaps the biggest challenge, he says, is establishing a larger philanthropic network because structural racism is not going to be go away overnight. “We need to raise our hands and get to work.”

Police violence

Police violence is a chronic problem on the African continent, a practice that was amplified during the Coronavirus pandemic in different countries. In Kenya, says Hussein Khalid, Executive Director of HAKI Africa, more than 50% of murders committed on the coast in that period may be attributed to the police. “We have insisted that the pandemic cannot serve to justify the abuse of individual rights under the Constitution, and that the police, in fact, have a duty to guarantee these rights.”

Efforts are being made to make police officers accountable for their violent behavior, but they are yet to be punished. At the same time, Khalid sees in the government an attitude of protection of this wrongful behavior. He also calls attention to corruption in and outside the police force. “We often see financial resources being misused, depriving of help those who really need it.”

Necessary work

Hanen Fathallah, Legal Director of the International Legal Foundation - Tunisia, emphasized the need to protect the most vulnerable groups from discrimination. In Tunisia, she recalls the arrest of a man in connection of a terrorist attack simply because he was a Muslim and wore a beard. The suspect was kept in prison for several days without even knowing why he was being held. “This is just an example of what happens here. Hence the importance for lawyers to take action as soon as possible.”

Fathallah argues that such situations must be better understood so that rights can be protected. Likewise, Public Defender’s Offices must be able to effectively act to protect minorities. The ILF has sought to raise awareness by organizing meetings with the most vulnerable to abuse, in addition to coordinating legal assistance. “We have come a long way, but there is still work to be done alongside the Ministry of Justice, civil society and other stakeholders to reduce injustices and discrimination in Tunisia.”

Female imprisonment

An innovative survey on the imprisonment of women in Sierra Leone revealed that 62% served pre-trial detention due to inflexible bail conditions. This is the main cause of prison overcrowding, which, combined with limited access to water and sanitation, contributes to the advancement of COVID-19.

Poverty is a determining factor for excessive female incarceration in the country: 71% of the interviewees stated that before going to prison they could only afford one or two meals a day. Almost half were the main provider of the family, and 88% cared for at least one child. 34% were detained for economic or petty crimes, often committed to ensure survival.

The study also shows that most incarcerated women have suffered sexual and/or gender violence. Almost half also reported having suffered from depression, and 40% of anxiety before incarceration. “These women are victims of a system that imprisons instead of treating them”, says Sabrina Mahtani, Co-founder and Board Member of AdvocAid. The survey reveals, however, that the defendant’s mental health is almost never taken into account by the judge.

Incarceration has a highly negative impact on the mental health of women, so much so that 54% reported a mental health condition starting or deteriorating while in detention. AdvocAid has appealed to the Sierra Leone government to release vulnerable and low-risk detainees awaiting trial. However, no one has been released to date.