Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention This report focuses, in particular, on the following rights: (i) the right to information; (ii) access to justice; (iii) the right to protection measures – including measures against repeat victimisation; (iv) the right to Victim Support Services; and (v) the right to compensation. The two EU instruments on Victims’ Rights referred to in this report are Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime (“2012 Directive”) and Directive 2004/80/EC relating to compensation to crime victims (“2004 Directive”).50 The 2012 Directive provides for the rights of all victims of all crimes, and for corresponding obligations on the part of Member States. A victim is defined as, among other things, “a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence”.51 These rights therefore only apply to victims of crime, as defined under national legislation and do not apply to detainees who suffer from poor detention conditions that do not amount to criminal offences. 50 51 52 53 54 This does not, however, mean that these rights only apply to victims who have filed criminal complaints.52 The 2012 Directive specifies that “[a] person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted.”53 Victims’ Rights are not therefore attached to a finding of guilt or even to the identification of the offender. Article 1 of the 2012 Directive explicitly provides that “[t]he rights set out in this Directive shall apply to victims in a nondiscriminatory manner, including with respect to their residence status”. This is particularly relevant to assessing the status of people in migration detention and the high proportion of non-nationals in pre-trial detention. It is not compliant with EU law to deny these people their Victims’ Rights on the basis of their residence or nationality:54 Member States should ensure that rights set out in this Directive are not made conditional on the victim having legal residence status on their territory or on the victim’s citizenship or nationality (see also Recital 10). Thus, third country nationals and stateless persons who have been victims of crime on EU territory should benefit from these rights. Other instruments on Victims’ Rights include Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims but are not relevant to this research. Article 2(1)(a)(i) of the 2012 Directive. By contrast, the 2004 Directive only applies to victims of violent intentional crime. The directive does not contain a definition of victim or “violent intentional crime.” See e.g. Article 8(5) of the 2012 Directive and the European Commission’s guide on implementation of 2012 Directive, available at: https://ec.europa.eu/info/sites/info/files/13_12_19_3763804_guidance_victims_rights_directive_eu_en.pdf, p. 16. Recital 19 of the 2012 Directive. See the European Commission’s guide on implementation of 2012 Directive available at: https://ec.europa.eu/info/sites/info/files/13_12_19_3763804_guidance_victims_rights_directive_eu_en.pdf, p. 10. Ibid, p. 8. 23