Minorities often lack access to justice and equal protection of the law due to discrimination. Discrimination can occur in the various stages of law enforcement, from interaction with police, to presentation of court cases and sentencing, and at higher levels of legislative drafting. Minorities are more vulnerable to arbitrary arrests and are less likely to receive a fair trial due to discrimination, under-representation in legal services, higher levels of social exclusion and language barriers. The absence of non-discrimination legislation and/or the lack of effective remedies are common problems. It is important to recall that the ICERD recognises the right of everyone “to equal treatment before the tribunals and all other organs administering justice” (article 5 (a)) without discrimination. This applies to all minorities, including migrant communities.

Policing:

In many societies, minorities may have a negative relationship with the police. This may be due to discriminatory practices by the police, such as racial profiling, low representation of minorities among the police force, failure of the police to investigate crimes committed against minorities and in some cases violence by the police against minorities. The cumulative effect is that trust and cooperation with the police by minority groups is often very low.

There are several solutions for remedying this. The police force could be monitored by the government to ensure that it is not violating the rights of minorities, that it is fully implementing the laws that protect minorities, and that it is investigating and prosecuting crimes committed against minorities, without discrimination. Training on minority rights and the factors of exclusion that affect minorities may be offered and reviewed regularly. The police could reflect the ethnic, religious and linguistic composition of the population at large and greater efforts to recruit and retain minority women and men could be made. Institutionalized racism could be addressed, for instance, with appropriate monitoring and complaints systems.

Relations between the police and minority communities may be strengthened by partnership agreements. Such partnerships could be forged between local and national police, minority CSOs and minority community representatives. Such partnerships involve committed, long-term trust building between the parties to ensure mutual understanding, open communication and transparency. Minority community liaison officers are a good tool but engagement could be mainstreamed throughout law enforcement institutions at all levels. Overcoming prejudice and distrust on the part of minorities and the police will be a lengthy and sensitive process but is an important step in building public confidence in the law enforcement system. Given that the police are often at the front line of managing inter-communal conflict, sensitising them to the rights of minorities is also a vital part of conflict prevention.

	NGOs and Police Against Prejudice (NAPAP) was a programme established with the help of the European Commission in 1997. It aimed to build partnerships between police and minority CSOs. As part of the initiative, the Rotterdam Charter: Policing for a Multi-Ethnic Society (see http://www.rotterdamcharter.nl/) was drafted by participants focusing on policy responses in the areas of recruitment and retention, training, implementation of the law, building bridges between minorities and the police, and use of statistics about minorities and crime. Evaluations of the NAPAP work found the most successful initiatives evolved from solid foundations. For example, in a Catalan project based in Barcelona, one year “was spent in first building up strong relationships and shared understandings of problems and appropriate ways forward, with the result that the training partnerships forged by police and local ethnic community organizations were among the most effective and enduring in the whole programme” (Oakley 2001). Recently, the OSCE High Commissioner on National Minorities has issued a set of Recommendations on Policing in Multi-Ethnic Societies (February 2006). The UN Independent Expert on minority issues also held a review of good practice at an Expert Meeting on Integration with Diversity in Policing.25

Judicial system reform:

Minorities may not be able to access the judicial system because of discrimination, language barriers, low confidence in the process, financial barriers and the lack of judicial facilities in regions where they live. Some minority groups may also prefer to use traditional justice systems to resolve disputes.

Important improvements could be made by training existing judges and lawyers about international minority rights standards. Often these laws are not implemented because there is low awareness of them among domestic legal practitioners. Such training could include sensitization to the particular needs of minorities to aid legal practitioners to better serve these groups. It is also beneficial to increase the representation of minorities among judges and lawyers. This can help reduce discrimination, increase understanding of minority issues and address language barriers. During judicial proceedings it is essential that minorities be provided with translation into their own languages as requested (see ICCPR article 14.3 (a) and (f)). In areas where minorities are poor, access to judicial services may be impeded by financial costs. Efforts therefore can be made to provide low cost or free legal aid resources for minorities.

Traditional systems of justice are important to many minority communities. The adoption of so-called ‘Alternative Dispute Resolution’ mechanisms is one means of improving access to justice for these minority groups. This may take several forms, including recognition of traditional law in some areas of law (e.g. divorce, property); use of traditional mediators from minority communities to settle disputes; and training paralegals from minority communities to aid in dispute resolutions and advise on the use of formal judicial services. Mainstream judicial actors may be educated about traditional justice systems as appropriate. However, such mechanisms are not a panacea for minority justice and may harm marginalised groups within minority communities, such as minority women, who may not always treated equally under these traditional legal systems
Minorities often experience disproportionate rates of incarceration. These rates could be reduced through better provision of legal aid to minorities, including assistance in minority languages. Use of alternative dispute resolution and restorative community-based justice can decrease reliance on custodial measures. Training for prison officials could sensitize them to the cultural and religious rights and needs of minority prisoners and to their right to non-discrimination. Overall, greater monitoring and accountability within the justice system will reduce the impact of discrimination that results in the higher incarceration rates.

	WORKING WITH TRADITIONAL JUSTICE SYSTEMS IN NEPAL In order to properly understand indigenous justice systems, UNDP Nepal commissioned several studies in remote areas. It found that these century-old community mediation systems are functioning effectively, including the implementation of and adherence to rulings in criminal cases. Based on the studies, a mediation manual was prepared that was used to train traditional mediators in order to raise awareness about the formal law. It was essential to convince traditional mediators of the added value of adhering to formal law as well as providing them with the best international practices on mediation. Source: UNDP, Programming for Justice: Access for All. A Practitioner’s Guide to a Human Rights-Based Approach to Access to Justice, UNDP 2005, p. 104.

	DESIGNING INNOVATIVE APPROACHES TO ENHANCE ACCESS TO JUSTICE IN KOSOVO In Kosovo, efforts were made to promote a professional, independent, impartial and multi-ethnic judiciary and prosecution service. A multi-ethnic judiciary, especially at the local level, can help in taking action against ethnic bias and to build trust between different communities. For example, the Judicial Integration Section (JIS) was, “tasked with increasing minority participation in the judiciary and prosecution service, ensuring access to justice for minorities and tracking the treatment of minorities by the justice system.” Other ways in which the JIS addressed obstacles facing ethnic minority communities included: shuttle services to and from the community to courts in order to overcome restrictions on freedom of movement; court liaison officers to facilitate access to courts by providing advice and outreaching to different ethnic groups; oversight bodies to monitor investigations, court processes and judges to ensure impartiality; and victim assistance units to provide comprehensive assistance including legal services, shelter services, psycho-social support, medical assistance, education, income generation and compensation. Source: UNDP, Programming for Justice: Access for All. A Practitioner’s Guide to a Human Rights-Based Approach to Access to Justice, UNDP 2005, p. 168.

Legislative reform:

Technical support to governments to review existing legislation for compliance with international standards on non-discrimination and minority rights could be provided. This could be accompanied by strategies for more effective implementation of non-discrimination legislation, such as individual complaints mechanisms that are accessible to all.

Constitutional reform is a good entry point for the legislative protection of minorities. Constitutional protection of minorities as distinct communities, or constitutional endorsement of pluralism and multiculturalism within a given State, are important signs of inclusive democratic governance. Constitutional guarantees of protection and promotion of minority rights exist in many countries. Efforts could be made to understand what legal protections for minority rights have been adopted in national laws to give effect to the constitutional provisions.

	NATIONAL LEGISLATION FOR MINORITIES IN UKRAINE AND CROATIA In Ukraine, the 1996 Constitution defines ‘the Ukrainian people’ as “citizens of Ukraine of all nationalities”. The Constitution guarantees for minorities the right of legal equality, the prohibition of discrimination and the right to develop their culture and preserve their ethnic identity. The Constitution also provides for protection against hate crimes. The Constitution lays the foundation for state support for the development of ethnic minorities and obliges local authorities in places of compact minority residence to ensure the implementation of national and regional programmes for minorities’ national and cultural development. In Croatia, the Constitutional Law on National Minorities was adopted in December 2002. The law establishes firm legal protection for national minorities, focusing on a wide range of issues including language, cultural autonomy, religion, associations and media. Importantly, it also outlines strong provisions for public participation by minorities, including reserved seats in government and the establishment of Councils of National Minorities that act as advisory bodies to national, local and regional governments. There is also a National Minority Rights Sub-Committee of the National Human Rights Committee that considers issues pertaining to the exercise of national minority rights as established by the constitution and laws.

National Human Rights and Minority Rights Institutions:

Support to National Human Rights Institutions (NHRIs) to improve their capacity to protect minority rights could be encouraged. In addition to improvements in non-discrimination legislation and enforcement, NHRIs may need guidance on the content and application of minority rights. Issues such as linguistic rights (e.g. mother tongue education), freedom of religion, freedom to practice one’s culture, citizenship entitlements and regional autonomy can be complex areas of law with which some NHRIs are not adequately familiar. Examples of good practice in regions where minority rights issues have been well addressed by national legislation and institutions could be disseminated. Information on best practice in treaty body reporting on minority issues would also be useful, both for state reports and NGO shadow reporting.

Some States have created statutory bodies specifically to monitor minority rights. For example, the Government of Serbia has established the Agency for Human and Minority Rights. Its responsibilities include: monitoring the harmonization of local regulations with international standards for human and minority rights; reporting on the implementation of international agreements on human and minority rights; supporting the Council of National Minorities; and establishing connections between national minorities and their countries of origin. In Vietnam, the Committee for Ethnic Minorities (CEMA) is a ministerial level agency with numerous duties including to: coordinate government ministries on laws, policies and programmes pertaining to ethnic minorities; draft laws and regulations pertaining to ethnic minorities; conduct surveys and research on ethnic minority groups of Vietnam; monitor the implementation of policies on ethnic minorities; and consider petitions of citizens regarding these policies.²⁶

The Government of India has established a National Commission for Scheduled Castes. The Commission can investigate individual complaints, advise on government policy vis-à-vis Scheduled Castes and monitor general trends in the implementation of relevant legislation.²⁷ The Government of Nepal established a similar body in 2002, the National Dalit Commission. In 2003, the Government of Brazil created the Special Secretariat for the Promotion of Racial Equality (SEPPIR) at the ministerial level, the first institution of its kind in Latin America. SEPPIR works closely with a National Council of Racial Equality Promotion, consisting of 20 representatives of civil society, including representatives of ethnic and religious minorities, and government actors.

	There are numerous combinations of electoral structures and policy interventions that can be adopted and ‘hybrid’ systems are increasingly common. Options include: adoption of a proportional representation voting scheme; exemptions for minimal voting share threshold for minority parties; redrawing of electoral district boundaries to increase the influence of minority voters; requirements that party voting lists include a certain percentage of minority candidates; and designating seats for minorities in parliament. In post-conflict states, power-sharing models may need to be developed, although experience suggests that even in these systems space should be left for multi-ethnic parties to participate. Source: A. Reynolds, Electoral Systems and the Protection and Participation of Minorities, London: MRG, 2006.

Transitional justice:

Redress for past violations of minority rights is important for ensuring that past grievances do not overshadow current relationships between groups and become a catalyst for new problems. Such violations may include genocide and ethnic cleansing, forced displacement, and restrictions on cultural practices. Forms of reparation may vary depending on the situation. However, the effective participation of the group concerned in deciding how to redress the violation is crucial. Examples of potential forms of reparation include an official apology for the violation, compensation for individuals or communities, truth and reconciliation commissions, prosecution of perpetrators, and return of land or property. Even where the action was in accordance with the national law at the time, but would currently constitute a violation of national law or international standards, States can follow good practice and provide appropriate reparation. In an effort towards reconciliation in Australia, for example, the Prime Minister issued an apology to Australia Aborigines in 2008. The Government of Canada negotiated an Indian Residential Schools Settlement Agreement (IRSSA) in September 2007 to redress the legacy of First Nations children that were forced into residential schools. The agreement includes provisions for financial compensation, a truth and reconciliation commission, and additional healing measures for survivors.