Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention
Definition of the right
The 2012 Directive provides for a right to protection for
victims of crime. More precisely, Member States must put in
place measures to “protect victims and their family members
from secondary and repeat victimisation, from intimidation
and from retaliation, including against the risk of emotional
or psychological harm and to protect the dignity of victims
during questioning and when testifying.”109 The 2012
Directive recitals refer, by way of examples, to “interim
injunctions or protection or restraining orders.”110 The
measures include “when necessary (…), procedures (…) for
the physical protection of victims and their family
members.”111
According to the European Commission Guidance
Document related to the transposition and implementation
of the 2012 Directive, protection against repeat victimisation
“applies to all victims, but may be of particular importance
in situations of gender-based violence and violence in close
relationships, such as physical violence, harassment, sexual
aggression, stalking, intimidation or other forms of indirect
coercion. Physical protection from intimidation and
retaliation includes measures to improve the victim’s feeling
of safety and security at police and court premises, at the
victim’s residence and in public.”112 The same guidance
provides that protection measures, including interim
injunctions or protection/restraining orders, must be issued
by Member States to protect a victim “when there are
serious grounds for considering that that person’s life,
physical or psychological integrity, personal liberty, security
or sexual integrity is at risk.”113
In the context of criminal proceedings, Member States are
required to “establish the necessary conditions to enable
avoidance of contact between victims (…) and the offender
within premises where criminal proceedings are conducted,
unless the criminal proceedings require such contact”.114 The
measures must be based upon an individual assessment
conducted in respect of each victim aimed at identifying their
specific protection needs and whether and to what extent
they would benefit from special measures in the course of
criminal proceedings, due to their particular vulnerability to
secondary and repeat victimisation, to intimidation and to
retaliation.115
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
The specific protection needs assessment must take into
account:
a) the personal characteristics of the victim;
b) the type or nature of the crime; and
c) the circumstances of the crime.116
Moreover, particular attention must be paid to “(…) victims
whose relationship to and dependence on the offender
make them particularly vulnerable (…).”117 The victims'
“concerns and fears in relation to proceedings should be a
key factor in determining whether they need any particular
measure.”118
Though not specifically targeted as a vulnerable group under
the 2012 Directive, detainees are a group “whose
relationship to and dependence on the offender make them
particularly vulnerable” to repeat victimisation, intimidation
and retaliation, whether the offender is a member of the
Detention Staff or another detainee.119 As explained in the
previous sections, the occurrence of repeat victimisation,
intimidation and retaliation against detainees is also well
documented in practice.
The 2012 Directive interpreted in the light of the Charter
and the ECHR
Beyond the scope of the 2012 Directive, states have a
general obligation to protect human rights including by
adopting concrete protection measures under the Charter
and the ECHR.120 In the context of violations of the right to
life,121 the ECtHR held that if they “knew or ought to have
known at the time of the existence of a real and immediate
risk to the life of an identified individual or individuals from
the criminal acts of a third party and that they failed to take
measures within the scope of their powers,” they “might
have been expected to avoid that risk.”122
Therefore, once alerted of the commission of a violent crime,
the state also has the obligation to protect against further
victimisation. In order to do so, states must thoroughly assess
whether the risk that led to the victimisation continues. If so,
national authorities must “take all reasonable measures to
prevent the recurrence of violent attacks against the
applicant’s physical integrity.”123
Article 18 of the 2012 Directive.
Recital 52 of the 2012 Directive.
Article 18 of the 2012 Directive.
European Commission guidance document related to the transposition and implementation of the 2012 Directive, p. 39, available at:
https://ec.europa.eu/info/sites/info/files/13_12_19_3763804_guidance_victims_rights_directive_eu_en.pdf.
Ibid.
Article 19 of the 2012 Directive. See also, Fundamental Rights Agency of the EU, Proceedings that do justice, Justice for victims of violent crime (part II), 2019, p. 91, available
at: https://fra.europa.eu/sites/default/files/fra_uploads/fra-2019-justice-for-victims-of-violent-crime-part-2-proceedings_en.pdf.
Article 22 of the 2012 Directive.
Article 22 of the 2012 Directive.
Article 22 of the 2012 Directive.
Recital 58 of the 2012 Directive.
Article 22 of the 2012 Directive.
See e.g., ECtHR, Opuz v. Turkey, No. 33401/02, 9 June 2009, § 159.
Article 2 of the ECHR.
ECtHR, Osman v. the United Kingdom, No. 23452/94, 28 October 1998, § 116.
ECtHR, Opuz v. Turkey, No. 33401/02, 9 June 2009, § 162.
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