Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention Deprivation of liberty is amongst the harshest measures the state can take against an individual. In addition to the loss of liberty, detained individuals experience serious and sometimes irreversible impacts to their livelihood, family, and health. According to international and regional human rights standards, such a severe state action against an individual can therefore only be imposed in strictly limited circumstances.1 This report focuses on two circumstances where detention may be justified but only in exceptional cases, and as a measure of last resort: (a) pre-trial detention, which removes the right to liberty from a person who has not yet been (and may not be) convicted of any crime;2 and (b) immigration detention which is based exclusively on a person’s migration situation.3 Unfortunately, in the EU as around the world, strict limitations on the use of these forms of detention (“Detention”) are frequently not respected.4 Pre-trial detention has recently come under particular scrutiny from European regional bodies for its connection to overcrowding and inhuman detention conditions. According to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”):5 [T]he persistent problem of overcrowding in prisons, with all its related challenges, has to be ascribed to a large extent to the high proportion among the total prison population of remand prisoners (i.e. prisoners who are detained by court order and are still awaiting their trial or have not been convicted by a final judgment). Pre-trial detainees usually face much worse detention conditions than convicted detainees. They are “all too often held in dilapidated and overcrowded cells and are frequently subjected to an impoverished regime. (…) [F]requently subjected to various types of restrictions (in particular as regards contacts with the outside world).”6 This specifically harsh regime is often justified by the theoretically short 1 2 3 4 5 6 7 8 9 10 11 12 13 periods of pre-trial detention, but in reality, pre-trial detention can last for years. This has a negative impact on mutual trust between Member States of the EU (“Member States”). As expressed by the European Commission in a green paper published in 2011 “[e]xcessively long periods of pre-trial detention are detrimental to the individual, can prejudice judicial cooperation and do not represent the values for which the EU stands.”7 Flagship cooperation instruments needed to fight crime in Europe, like the European Arrest Warrant, are at risk, because poor detention conditions can lead to refusal of extradition.8 The lack of EU legislation harmonising minimum standards in the area of detention was recently highlighted by the Court of Justice of the European Union (“CJEU”).9 Similarly, immigration detention is at the heart of International and European institutions’ preoccupation, and they have made efforts to address the growing use of immigration detention in response to large movements of asylum-seekers and refugees in different parts of the world. Contrary to pre-trial detention, the EU has legislated some aspects relating to detention conditions of detained migrants.10 In 2014, the United Nations High Commissioner for Refugees launched the “Global Strategy – Beyond Detention 2014-2019” with the aim of supporting governments to end the detention of asylum-seekers and refugees.11 The strategy requires states to put in place and implement alternatives to detention, as well as better detention conditions where detention is deemed necessary and unavoidable.12 However, it appears very clearly that the detention of migrants is frequently used systematically, and is often arbitrary and unlawful.13 Places of detention are dangerous. Violence is prevalent. The Secretary General of the United Nations (“UN”) recently identified “[t]he issue of violence, death and serious injury (…) as one of the most important challenges pertaining to European Court of Human Rights, Guide on Article 5 of the European Convention on Human Rights, available at: https://www.echr.coe.int/Documents/Guide_Art_5_ENG.pdf. European Convention of Human Rights, Article 5(1)(c). European Convention of Human Rights, Article 5(1)(f). This is also specifically enshrined in EU law in respect of immigration detention. See Article 15 of Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country Nationals. Fair Trials, A Measure of Last Resort: The practice of pre-trial detention decision-making in the EU, 2016, available at: https://www.fairtrials.org/publication/measure-last-resort and Asylum Information Database, The detention of asylum seekers in Europe: Constructed on shaky ground? Published in 2017, available at: https://www.ecre.org/wpcontent/uploads/2017/06/AIDA-Brief_Detention-1.pdf. CPT, Remand detention, Extract from the 26th General Report of the CPT, published in 2017, p. 1, available at: https://rm.coe.int/168070d0c8. Ibid. European Commission, Green Paper, Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention, 2011 (COM(2011) 327 final), available at: https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:52011DC0327. Joined Cases C-659/15 PPU and C-404/15, Caldararu and Aranyosi, judgment of 5 April 2016, and EuroJust, Case Law by the Court of Justice of the European Union on the European Arrest Warrant, published in October 2018, available at: http://www.eurojust.europa.eu/doclibrary/Eurojust-framework/Pages/Case-law-analysis.aspx. CJEU, Case C 128/18, Dorobantu, judgment of 15 October 2019 which concluded that: “[a]s regards, in particular, the personal space available to each detainee, the executing judicial authority must, in the absence, currently, of minimum standards in that respect under EU law, take account of the minimum requirements under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, as interpreted by the European Court of Human Rights. Although, in calculating that available space, the area occupied by sanitary facilities should not be taken into account, the calculation should include space occupied by furniture. Detainees must, however, still have the possibility of moving around normally within the cell” (paragraph 86). Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, Articles 15, 16 and 17; Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), Articles 9, 10 and 11. UNHCR, Global Strategy - Beyond Detention 2014-2019 to support governments to end detention of asylum-seekers and refugees: Progress Report 2018, February 2019, available at: https://www.unhcr.org/protection/detention/5c934bbd7/unhcr-global-strategy-beyond-detention-progress-report-2018.html. See also, Parliamentary Assembly of the Council of Europe, Resolution 1707 (2010) on Detention of asylum-seekers and irregular migrants in Europe, §9, available at: https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17813&lang=en; CPT, Factsheet on Immigration Detention, published in March 2017, p. 1, available at: https://rm.coe.int/16806fbf12. Ibid, pp. 4-5. PICUM, available at: https://picum.org/focus-area/borders-and-detention/. 13