Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention Before analysing the effectiveness of Victims’ Rights for persons who suffer violence in detention, this section identifies the challenges arising from the context of detention. Five underlying issues were identified which pervade the accessibility of Victims’ Rights for people who suffer violent crime while in pre-trial and immigration detention: (i) the conceptual dichotomy between victims and detainees; (ii) the normalisation of violence; (iii) the isolation and vulnerability of detainees; (iv) institutional barriers conflicts of interests and self-protection; and (v) legal and financial limitations. Each factor is outlined briefly below to provide context to the subsequent sections of this report. Conceptual dichotomy between victims and detainees When seeking to engage many stakeholders, it was clear that they found it conceptually challenging to think of people in detention, whether in pre-trial or immigration facilities,24 as potential victims of crime. In the same way as the criminal justice system distinguishes between suspects/accused persons, on the one hand, and victims, on the other, a binary attitude seems to exist amongst stakeholders. Detainees’ procedural rights and Victims’ Rights are often not recognised as co-existing and overlapping; rather they are seen as separate or even opposite, through polarized lenses. This conceptual dichotomy has serious implications for the ability of detained victims of violence to access and exercise Victims’ Rights, including: • • A general lack of awareness of Victims’ Rights amongst the numerous practitioners working in detention – including Detention Staff (medical, psycho-social and security), lawyers, monitoring bodies, support services for detainees, civil society, etc. (together, “Detention Practitioners”). In all Member States researched, Detention Practitioners have no training on Victims’ Rights. If it is not recognised that a person could be a “victim”, the relevance of Victims’ Rights will simply not be identified. Stakeholders who come into contact with detainees, even those supposed to protect their rights in detention, may not see detainees as potential victims. Moreover, detainees themselves may not perceive themselves as victims or, more generally, as people with rights. specialised in the rights of victims do not generally work in detention facilities, in particular in prisons and jails. Normalisation of violence as part of detention conditions Statistics show that many forms of violence are prevalent in detention. The World Health Organisation’s 2014 “Health and Prisons” report highlighted that: “[a]bout 25% of prisoners are victimized by violence each year, while 4–5% experience sexual violence and 1–2% are raped”.25 US Government statistics show that men in detention are 18 times more likely to be assaulted than men in the general population; for women in detention, the rates are more than 27 times higher.26 Although the scale of violence in places of detention is under-studied in Europe and statistics are scarce, in the six Member States we focused on, violence was perceived to be an intrinsic part of both pre-trial and immigration detention. Acts of violence are seen, or lived, as a normal or inevitable element of detention. Under-reporting is discussed further below, but one reason detainees who suffer violence, or witness violence against others, do not report it, is because violence is considered to be “normal” (to a certain extent) and linked to prison conditions more generally. Given the fact detainees are particularly at risk of being victims of violence, the lack of public policy addressing this is shocking and a reflection of the normalisation of violence in closed institutions. Despite public knowledge that violence occurs in detention, our research shows that limited or no action is taken to prevent violent criminal conduct and to sanction it appropriately. Violence in detention could also be normalised because it is wrongly perceived as part of how places of detention operate: • In the context of violence perpetrated by Detention Staff, in strictly limited circumstances the use of force can sometimes be legitimate.27 In practice, this can make it harder to distinguish between legitimate (and lawful) use of force or restraint and abusive (criminal) violence. • Violence between detainees, which is common,28 is often treated by Detention Staff as a private dispute that is either left to detainees to deal with, or that should be sanctioned without assessing whether there is an aggressor and a victim. In Hungary, for example, several cases were reported of detainees in pre-trial detention • Services dedicated to victims, including NGOs, professional support services (public or independent) for victims (“Victim Support Services”) and lawyers 24 This vision of migrants echoes the clear trend towards the criminalisation of migration in Europe. See e.g., FRA, Criminalisation of migrants in an irregular situation and of persons engaging with them, 2014, available at: https://fra.europa.eu/sites/default/files/fra_uploads/fra-2014-criminalisation-of-migrants-1_en.pdf; Council of Europe: Commissioner for Human Rights, Criminalisation of Migration in Europe: Human Rights Implications, 2010, available at: https://www.refworld.org/docid/4b6a9fef2.html. World Health Organisation, Prison and Health (2014), pp. 19-21 for definitions of violence in prison. Report available at: http://www.euro.who.int/__data/assets/pdf_file/0005/249188/Prisons-and-Health.pdf. Wolff N, Blitz CL, Shi J., Rates of Sexual Victimization in Prison for Inmates With and Without Mental Disorders, Psychiatric Services, 2007, 58(8):1087 – 1094. United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), General Assembly A/RES/70/175, 2015, available at: https://www.un.org/ga/search/view_doc.asp?symbol=A/C.3/70/L.3. In the prison context, it has been reported that “[i]nter-prisoner violence constitutes an important cause of death and serious injury of persons deprived of their liberty, representing in some contexts over 17 per cent of deaths in custody. This type of violence is widespread, with some surveys indicating that over half of the prisoners interviewed had been exposed to violence originating from fellow inmates.“ Human Rights Council, Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, Human rights in the administration of justice, 2019, A/HRC/42/20, p. 6 (references omitted), available at: https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/session42/Documents/A_HRC_42_20.docx. 25 26 27 28 17