Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention detainees is lawful and part of lawful restraint measures.93 This often results in the detainee having to prove that the violence was illegitimate. But monitoring the use of force is a complicated task that falls upon the Detention Administration to confront a complaint by a detainee against the version of the Detention Staff involved. In Belgium and France, allegations were made by various stakeholders that Detention Staff (and police officers) may file false reports alleging that the detainee was resisting orders or threatening to use force, in order to justify the use of force against the detainee.94 While this may sometimes be legitimate, it can also be an attempt to protect themselves or their colleagues, and a way to intimidate or deter victims from filing complaints.95 If and when a criminal complaint is lodged, there are often a large number of witnesses in favour of the alleged perpetrator, when they are a member of Detention Staff. As discussed above, loyalty among Detention Staff means they will rarely inform on each other, even in the context of a criminal investigation. The lack of witnesses for the detainee victim is a consequence of the fear of reprisals, but also the likely secretive setting in which violence takes place – often when the detainee is in solitary confinement, for example in a body search room.96 Another difficulty stems from the fact that, in some Member States, reports or statements by Detention Staff are treated by Law Enforcement Authorities and courts as having a higher probative value and credibility than statements provided by detainees,97 even when they do not have this added value in law. Difficulties in accessing lawyers and legal aid Lawyers have a key role in providing independent information, advice and assistance to people in detention. For the reasons discussed above, detainees rarely speak about or report the violence they have suffered to the Detention Administration. Because they are often able to access detainees (and are not part of Detention Administration) lawyers could therefore play a valuable role in identifying victimisation situations through regular visits to their detained clients and by asking them the right questions. Access to a lawyer or to legal advice or information is often, however, impeded as: Good practice – Belgium Some bar associations have established first line “legal aid desks” (permanences juridiques) in some immigration Detention Centres to facilitate migrants’ access to free legal advice. As such, migrants are efficiently advised on their rights by independent lawyers, but may also report abuse or ill-treatment, including violence, and ask for the appointment of a legal aid lawyer to help them file a complaint, provide advice and represent them in legal proceedings. • The context of detention detailed above limits detainees’ ability to obtain information and communicate with outside services, including lawyers; • It is difficult and time consuming for lawyers to access their clients in detention, in particular when they are subject to disciplinary measures (e.g. solitary confinement) and legal aid rarely compensates for this;98 and • Access to a lawyer is heavily dependent on the good will of the Detention Administration and Detention Staff.99 Finally, criminal defence lawyers or immigration lawyers are not usually trained in Victims’ Rights and the necessary steps to preserve evidence of abuse and file complaints. In pretrial detention, lawyers have limited knowledge of prison law and remedies available to their clients. There is a general lack of willingness on the part of lawyers to getting involved in issues relating to prison conditions.100 They often do not inquire about the well-being of their client in custody and instead focus on the ongoing criminal or immigration proceedings. This attitude may be explained by the fact that legal aid often does not cover regular work such as visits to Detention Centres, assistance in filing a criminal complaint and gathering evidence.101 In Sweden, for example, a criminal defence lawyer is not paid to represent a client in detention in different proceedings such as when their client becomes a victim of crime. In addition, immigration lawyers are appointed and paid by the state, which may affect their independence when deciding to file a complaint. In Croatia and Hungary, legal aid is simply not available for migrants in detention. 93 94 It may be sometimes necessary to “neutralise” a detainee in extreme circumstances where the physical integrity of the detainee, other detainees or prison staff is at risk. See also, Observatoire International des Prisons (France), Omerta, Opacité, Impunité, Enquête sur les violences commises par des agents pénitentiaires sur les personnes détenues, 2019, p. 40, available at: https://oip.org/publication/rapport-denquete-sur-les-violences-commises-par-des-agents-penitentiaires-sur-les-personnes-detenues/. 95 Ibid; CPT, Belgium national report, 2018, available at: https://rm.coe.int/16807913b1. 96 European Prison Litigation Network white paper on access to justice for pre-trial detainees, Bringing Justice into Prison: For a common European Approach, 2019, p. 36 et sec, available at: https://www.prisonlitigation.org/livre-blanc-sur-lacces-au-droit-et-au-juge-en-detention-provisoire/?lang=en; Observatoire International des Prisons (France), Omerta, Opacité, Impunité, Enquête sur les violences commises par des agents pénitentiaires sur les personnes détenues, 2019, p. 62, available at: https://oip.org/publication/rapport-denquete-sur-les-violences-commises-par-des-agents-penitentiaires-sur-les-personnes-detenues/. 97 See also, Observatoire International des Prisons (France), Omerta, Opacité, Impunité, Enquête sur les violences commises par des agents pénitentiaires sur les personnes détenues, 2019, p. 72, available at: https://oip.org/publication/rapport-denquete-sur-les-violences-commises-par-des-agents-penitentiaires-sur-les-personnes-detenues/. 98 European Prison Litigation Network white paper on access to justice for pre-trial detainees, Bringing Justice into Prison: For a common European Approach, 2019, p. 54, available at: https://www.prisonlitigation.org/livre-blanc-sur-lacces-au-droit-et-au-juge-en-detention-provisoire/?lang=en. 99 Observatoire International des Prisons (France), Omerta, Opacité, Impunité, Enquête sur les violences commises par des agents pénitentiaires sur les personnes détenues, 2019, p. 57, available at: https://oip.org/publication/rapport-denquete-sur-les-violences-commises-par-des-agents-penitentiaires-sur-les-personnes-detenues/. 100 Ibid. 101 See, European Prison Litigation Network white paper on access to justice for pre-trial detainees, Bringing Justice into Prison: For a common European Approach, 2019, pp. 41-42, available at: https://www.prisonlitigation.org/livre-blanc-sur-lacces-au-droit-et-au-juge-en-detention-provisoire/?lang=en. 35