Good practices – Sweden and the Netherlands In Sweden, a copy of the judgment awarding damages is sent to the Swedish Enforcement Authority when the judicial process has ended. Victims may receive assistance from the Enforcement Authority to collect the awarded damages. If the Enforcement Authority notices that the defendant is insolvent, it provides the victim with an investigation report evidencing it. With this report, the victim may turn to his/her insurance company or to the Crime Victim Compensation and Support Authority for compensation. In the Netherlands, “Under Dutch law, a victim has the right to present a claim for compensation in parallel to the criminal trial and thus has the ability to join the criminal proceedings as a civil claimant or ‘injured party’. (…) The compensation claim itself is a civil claim governed by tort law, but is processed by the criminal court as if it were a civil court. The main advantage of a compensation order issued in this manner is that it is enforced by the State. Other advantages include the possibility of advance payment from the State and the speed at which some claims are determined. If the offender is insolvent, the Criminal Injuries Compensation Fund pays the financial compensation.” 154 Further, victims face a financial risk if they pursue legal action for compensation. In some Member States, without a conviction or finding of liability, the unsuccessful victim may be ordered by the court to pay the defendant’s legal costs associated with the proceedings. In Hungary, a fee of 6 % of the claimed damages is to be borne by the unsuccessful victim, in addition to the costs of the procedure which may, for example, include the fee of a forensic medical expert. This risk may deter most detained victims, especially in light of the difficulties in proving violent crime in detention discussed above. Victims must generally take an active part in the process of recovering compensation. It is reasonable to assume that it is even more difficult to undergo the process for victims who are detained, in particular those who do not speak or understand the national language. In addition, the processes for obtaining compensation are often very long and victims, particularly migrants, may have left the country before compensation is paid, if it is ever obtained. State compensation limits the possibility of awarding compensation to detained victims In implementing Directive 2004, some Member States created a State body responsible for awarding compensation to victims of intentional violent crime. State compensation is generally awarded only when the offender is not identified, has fled or is insolvent. If the offender is found not guilty, state compensation may not be awarded. There is therefore a strong connection between accessing criminal complaint mechanisms and the possibility of obtaining state compensation. This connection has an adverse impact on a population which is typically without access to justice as victims of crime. In Sweden, for instance, in order to receive state compensation, the crime must have been reported to the police, or the victim must show a legitimate reason for not doing so. The victim must have contributed to the investigation of the crime to a reasonable extent. If the offender is unknown, there must have been an inquiry, such as a preliminary investigation, which shows that the victim has indeed been subject to a criminal offence. If the suspect is identified, a conviction or summary imposition of a fine is in principle required before the victim can seek State compensation. The eligibility to state compensation is also restricted in various ways that particularly affect detained victims. 155 In some Member States, state compensation is limited to the reimbursement of medical expenses only - except in the case of homicide or sexual violence; or where the damage will not be reimbursed in any other way (including by an insurance company). In some Member States, compensation is limited to EU citizens only; or available only where the crime was committed on the Member State’s territory or outside the Member State’s territory if the victim is a resident. These conditions particularly affect migrants and foreigners in detention. Complaint mechanisms available to detainees do not generally award compensation As explained above, violence in detention often remains an internal matter and is rarely reported externally to Law Enforcement Authorities. If and when a detainee complains about ill-treatment or violence, it will often be through internal complaint mechanisms and through disciplinary proceedings against the offender. Detainees may also report violent crime to external monitoring bodies or complaint mechanisms. Keeping these offences within the detention walls or detention related administrative bodies has an impact on detainees’ ability to obtain compensation. In most Member States researched, internal (disciplinary) and external complaint mechanisms (non-judicial proceedings) do not have the power to award compensation to victims. In the Netherlands, complaints mechanisms in prisons may result in the award of damages to detainees, but they are extremely low (as little as 2.5 Euros). For instance, in a case where a detainee was kicked in his face and stomach, resulting in 154 REDRESS, The Rights of Victims of Violent Crimes in Pre-Trial and Immigration Detention: Report on The Netherlands, March 2019, p. 54, available at: https://redress.org/news/new-report-on-the-rights-of-victims-of-violent-crimes-in-pre-trial-and-immigration-detention-in-the-netherlands/. 155 For restrictive eligibility criteria, see generally Special Adviser, J. Milquet, to the President of the European Commission, Strengthening Victims’ Rights: From Compensation to Reparation, 2019, pp. 23-24, available at: https://ec.europa.eu/info/sites/info/files/strengthening_victims_rights_-_from_compensation_to_reparation_rev.pdf. 52