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Publication

Rights behind bars

Access to justice for victims of violent crime suffered in pre-trial or immigration detention

November 12, 2019 - Pre-trial detention
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Deprivation of liberty is amongst the harshest of measures that states can take against individuals and should only be imposed in limited circumstances as a measure of last resort. In addition to the loss of liberty (and the life-changing impact this can have) detaining a person exposes them to the heightened risk of violent crime: according to the World Health Organisation, a shocking 25% of prisoners are victimized by violence each year. Violence in places of detention is much more common than amongst the general population. It can take various forms: it may occur between detainees or be inflicted by officials working in Detention Centres.

Putting a person in detention not only places them in a violent setting, it also makes them vulnerable. Detained people are isolated, stigmatized, and lack access to information and to means of communication with the outside world. Detention is not transparent – there is a lack of accountability and oversight. Procedural safeguards of people held in detention are not guaranteed. Places of detention can and often do operate as a kind of legal black hole.

States which decide to detain people are legally and morally responsible for their safety, including because of the vulnerability of detainees and the high risk of violence in detention. Over the past two years, Fair Trials has worked with five partners to examine the barriers to access to justice for detained people who suffer physical violence, whether by Detention Staff or co-detainees, in six Member States (Belgium, Croatia, Hungary, Italy, the Netherlands, and Sweden). We focused on immigration detention and pre-trial detention in the context of criminal proceedings.

Overview of findings

The specific context of detention creates systemic challenges for victims of violent crime:

  • Where detainees suffer violent crime, they are victims with rights under EU law, even if they are also suspected perpetrators of crime or undocumented migrants. There is, however, a common failure to recognise that people can be both detainees and victims at the same time, that detainees’ procedural rights and their rights as victims can co-exist. This conceptual dichotomy has serious implications for the ability of detained victims of violence to access and exercise Victims’ Rights.
  • Acts of violence in detention are frequently normalised – seen as inevitable features of life in detention, whether that is harsh treatment by Detention Staff or by co-detainees. For this reason, violence tends to be under-reported and not to be addressed as seriously as it would be in the outside world.
  • By isolating people, detention places them in a situation of vulnerability and dependency on Detention Staff and co-detainees. Their livelihood and safety depend on how they are treated by staff and fear of reprisals is a predominant barrier to reporting. This makes it especially hard for detained victims to report crimes and to seek to exercise their other rights as victims. This vulnerability is exacerbated for people who are non-nationals, do not speak the national language and/or have no local support networks.
  • Given the challenges that detainees face in reporting crimes, it is crucial that Detention Administrations play a pro-active role in identifying and addressing violent crime and in protecting the rights of victims. At various levels there are, however, embedded conflicts of interest and self-protection reflexes by those working within places of detention that can foster a rule of silence. These cultures deter whistle-blowing, investigations and accountability, all of which make violent crime hard to expose and to address.

As well as these broader contextual challenges, we identified serious barriers to victims of violent crime in detention accessing key rights as victims:

  • Information on rights: Without information about their rights, a victim cannot exercise them. In practice, however, detainees are not usually informed of their rights as victims at any stage of their detention, including due to their inability to access information that exists in the outside world and due to the failure to recognise violence in detention as a criminal offence. Detention Staff are not trained to identify victims or to inform them of their rights, and Victim Support Services are rarely available in detention.
  • Access to justice: Despite violence being known to occur in detention, adequate reporting systems rarely exist, and few reports ever reach the criminal justice system. Detained victims who seek access to justice face considerable barriers: limits on communication make it hard to report crimes to law enforcement; detained victims are often expected to produce evidence of violence but face difficulties in securing this; and it is particularly difficult for detainees to establish that the use of force is unjustified and amounts to a criminal offence (something which should not be but often is required). The role of lawyers in helping detainees access criminal complaint mechanisms and evidence is key, but in detention, access to legal advice and representation is difficult to secure.
  • Protection from further victimisation: The risk of repeat victimisation, intimidation or reprisals is high in detention. The range of retaliation measures that staff may use against detainees is wide and may impact their physical or mental integrity. Similar risks of re-victimisation apply in the context of violent crimes committed by other detainees. In a closed setting, similar to a close relationship, it can be impossible for a victim to escape their aggressor. There is a lack of available protection measures in detention and Detention Staff do not generally conduct appropriate needs assessments.
  • Victim Support Services: Victims who are not detained are usually referred to Victim Support Services when they file a criminal complaint but, as detained victims rarely access these mechanisms, they rarely, if ever, get referred. The existing framework for support services is simply not adapted to victims in detention. Organisations that provide services (police services to file complaints, Victim Support Services, NGOs who work with victims and lawyers specialised in Victims’ Rights) do not normally enter detention facilities.
  • Compensation: The right to compensation is largely unavailable for victims of violent crime in detention. Many of the challenges are the same as those encountered by victims generally: length of legal proceedings, link between state compensation and criminal proceedings, quantum of compensation, and the difficulty in accessing remedies across-borders. Victims in detention, however, face additional challenges as a result of their inability to access the justice system. Furthermore, complaint mechanisms available to detainees do not generally include the award of compensation.

The ineffective implementation of the rights of victims in detention results in a lack of adequate investigations into, and accountability for, violence. This contributes to a climate of impunity, leading to the recurrence of acts of violence, arbitrariness and, ultimately, threatens the rule of law itself in places of detention. It leaves detainees in an unbearable position of vulnerability, contributing to high levels of mental ill-health, self-harm and suicide.

Overview of recommendations

Overcoming these obstacles to justice for victims of violent crime suffered in detention poses serious challenges. There are, however, measures that can be taken to address these challenges.

Public Authorities

  • Because detainees will rarely, if ever, come into contact with law enforcement authorities (typically designated as the “competent authorities” for supporting victims in exercising their rights under EU law) Detention Staff should also be treated as “competent authorities” for these purposes. Detention Staff are often the first and the only contact with authorities that a victim of violent crime suffered in detention may have.
  • A clear framework should be adopted setting out the responsibilities of Detention Staff and detention administrations in securing the rights of victims of violent crime. This should, for example, include: the timely provision of accessible information on rights; preserving and sharing evidence of alleged crimes; reporting of possible offences to law enforcement; facilitating detainees’ communication with law enforcement, lawyers, medics and Victim Support Services; and the obligation to protect detained victims against secondary victimisation, intimidation or retaliation.
  • Detainees should be recognised and highlighted as an “at risk” group for violent crime, repeat victimisation and intimidation, and awareness-raising campaigns and education programmes should be undertaken and aimed, in particular, at Detention Staff and victims’ support services.
  • Data should be collected and published to allow for oversight and research, including on: (i) the number of complaints, investigations, prosecutions and convictions of violent crime against detained victims; (ii) the use of force by Detention Staff, and associated disciplinary procedures against Detention Staff or against detainees; (iii) detainees supported by Victim Support Services ; (iv) protection measures implemented in detention; and (v) compensation awarded.
  • In violation of EU law, some Member States limit access to some Victims’ Rights based on a victim’s nationality or residence. These laws should be reformed to ensure that all Victims’ Rights are protected.

Detention Administration and Staff

  • Because of the key role of Detention Staff in ensuring Victims’ Rights are respected, training on Victims’ Rights (including on how to identify victims) should be made a formal part of the education of Detention Staff, and workshops should be organised in cooperation with Victim Support Services to strengthen cooperation.
  • Taking into account the prevalence of violence in detention, and the reluctance of detainees to report violent crime, information on Victims’ Rights must be provided before situations of victimisation arise. Detention Staff should, therefore, provide accessible information on Victims’ Rights when people enter detention and as soon as there is any indication that a detainee may have been a victim. They should also ensure that information is provided in plain language and in a language the detainee understands.
  • A clear protocol should be adopted on the steps Detention Staff must take when there is an allegation of violence or when they become aware of such situations, including systematically to: preserve evidence of crime (including audio-visual recordings); report alleged violent crime to law enforcement; and undertake an individual needs assessment to implement protective measures.
  • Detention Administrations should work with Victim Support Services, lawyers, law enforcement and other agencies and should actively facilitate their access to places of detention. This would increase the likelihood of detained victims being able to access the services that are available to victims of violence in the outside world. It would also increase transparency and oversight of places of detention.
  • Many detainees are afraid to report abuse by Detention Staff or co-detainees, so it is crucial to try to overcome these barriers. One mechanism would be to ensure detainees have secure, confidential and fast-track channels of communication to report crime to law enforcement, lawyers and Victim Support Services. It is also crucial to ensure effective access to confidential and independent medical assistance and assessment.
  • Steps must be taken to increase oversight of Detention Staff in order to deter cases of abuse and address the culture of silence. This should, for example, include clear and detailed records of decisions to apply disciplinary measures (in particular, every use of force); an obligation to report allegations of ill-treatment and violence to law enforcement authorities; and oversight of compliance with laws and procedures to protect victims of violent crime, with appropriate sanctions where these are violated.

Victim Support Services

  • Because of the conceptual dichotomy between victims and detainees, Victim Support Services are not set-up to recognise and support detainees as an “at-risk” group. To try to overcome this challenge, and increase recognition of the needs of this vulnerable group, Victim Support Services should provide specialist training to their staff.
  • Victim support services should be adapted so that they more effectively support detained victims of violent crime in detention, including to access justice, obtain compensation and protect against re-victimisation. Victim Support Services should also consider creating specialised teams for detained victims.
  • To increase their access to places of detention, Victim Support Services should work with Detention Administrations (in coordination with lawyers, detention monitoring bodies and NGOs) to provide accessible information on Victims’ Rights to detainees and to organise “desks” in places of detention, regular visits and hotlines for detainees.

Bar associations, lawyers, legal aid boards

  • Lawyers could play a key role in detecting victimisation situations, informing their clients of their rights as victims and helping them to gather evidence and file complaints. They should work with Detention Administrations and other agencies to facilitate access to legal advice in Detention Centres, for example by creating legal clinics or hotlines.
  • Most lawyers working with detainees are not specialists in Victims’ Rights, focusing instead on defending the detainee in criminal or immigration proceedings. These lawyers should receive training on Victims’ Rights, identifying victimisation, and supporting criminal complaints and compensation claims.
  • Because most detainees do not have the means to pay for the legal services they need to exercise their Victims’ Rights, legal aid should be available, including (where necessary) to cover the costs of translation and interpretation.

Law Enforcement and Judicial Authorities

  • To address the serious under-reporting of violent crimes in detention, law enforcement authorities should adapt their procedures and work with Detention Administrations and other agencies to make it as easy as possible for detainees to report crimes.
  • Given the reluctance of detainees to report crimes to law enforcement (and the lack of perceived and actual priority given to investigating crimes in detention), clear policies should be put in place requiring law enforcement authorities to investigate and prosecute allegations of violence (whether by Detention Staff or co-detainees) and to ensure that allegations do not negatively impact ongoing criminal or immigration proceedings relating to the detainee.
  • Specialist teams should be created in law enforcement authorities to deal with criminality in places of detention, including ill-treatment by Detention Staff. This would allow for specialist training to be provided as well as a focal point for Detention Staff and Administration, lawyers and Victim Support Services.
  • Specific protocols should be put in place to support effective investigations and prosecutions, including to: require the Detention Administration to explain and justify the use of force (rather than requiring the victim to prove that it was unjustified); ensure that evidence is secured from places of detention; and protect detained victims and witnesses in ongoing proceedings.

Detention monitoring bodies

  • As a mechanism for independent oversight of places of detention, detention monitoring bodies (such as National Preventive Mechanisms) should review and report on whether effective steps are being taken to ensure that victims of violent crime in detention are informed of, and able to exercise, their rights as victims.
  • Monitoring bodies should facilitate investigations of violent crime in detention, by referring systemic concerns and, where appropriate, individual allegations to law enforcement authorities and by assisting criminal investigations.

European Union

  • Legislation at a regional level could help to reduce the incidence of violent crime in detention. In particular:
    • EU-wide legal standards to improve decision-making on pre-trial detention could reduce the unjustified use of detention, keeping more people out of detention and away from the heightened risk that they will become victims of violence.
    • EU legislation setting out minimum standards on detention conditions could make prison conditions more humane. This would in turn reduce the likelihood of violence and improve the capacity of Detention Administrations to effectively address incidences of violence.
  • Recognising the high rates of violence in detention, the vulnerability of detainees and the barriers to access to justice, the EU should produce guidance on the implementation of the EU law with respect to victims in detention. This should, in particular:
    • Clarify that detainees who are victims of violence are vulnerable, within the meaning of EU law;
    • Require that “competent authorities” include Detention Staff, to address the fact that these are the only authorities that most detainees are able to access; and
    • Outline minimum requirements for national protocols setting out the responsibilities of Detention Staff and detention administrations in securing the rights of detained victims of violent crime, including: the timely provision of accessible information on rights; preserving and sharing evidence of alleged crimes; reporting of possible offences to law enforcement; facilitating detainees’ communication with law enforcement, lawyers, medics and Victim Support Services; and the obligation to protect against secondary victimisation.
  • The EU should offer technical and financial support to assist in the implementation of the recommendations outlined above. For example, specialist training should be funded for professionals working with detainees, such as Detention Staff and Victim Support Services.
  • The European Commission should monitor the effective implementation of EU law on Victims’ Rights by Member States with respect to this vulnerable group. This could, for example, include a requirement to provide copies of national protocols for the protection of victims of violent crime in detention; and a requirement to provide data on how victims in detention have accessed their rights under EU law, such as the number of complaints, investigations, prosecution and convictions of violent crime against detained victims.

 

Read the full report ‘Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention’ here.

This report was produced as part of the project “Access to Justice for Victims of Violent Crime Suffered in Detention” co-financed by the EU Justice Programme and coordinated by Fair Trials, with partners REDRESS (The Netherlands), Centre for Peace Studies (Croatia), Antigone (Italy), Hungarian Helsinki Committee (Hungary) and Civil Rights Defenders (Sweden). We would like to thank our partners for their contributions to this report.

The project was funded by the European Union’s Justice Programme (2014–2020). The content of this publication represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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