respectful, sensitive, professional and non-discriminatory manner. This could increase victims' confidence in the criminal justice systems of Member States and reduce the number of unreported crimes. This does not, however, effectively address the specific vulnerability of victims of violent crime in detention. Access to justice for this group of victims, requires a more active role for the state. Indeed, the ECtHR has consistently held that the burden of proof must shift to the state:76 [W]here the events in issue lie wholly, or to a large extent, within the exclusive knowledge of the authorities – as in the case of persons in custody under those authorities’ control – strong presumptions of fact will arise in respect of injuries and deaths occurring during such detention. Thus, it has found that where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue will arise under Article 3 of the Convention. Indeed, in such situations the burden of proof may be regarded as resting on the authorities. In addition, procedural rights under the 2012 Directive must be read in light of the Charter which provides for the right to an effective remedy for violations of human rights.77 The rights of victims of violent crime therefore include the right to an effective remedy and the right to a fair trial.78 The notion of an ‘effective remedy’ entails (…) a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. A state’s obligation to investigate violent crime (and provide access to justice) does not therefore depend on a victim filing a criminal complaint.79 Challenges with respect to the right to participate in criminal proceedings This section does not seek to cover the general right to complain about detention conditions, available to anyone in detention pursuant to international and European standards;80 it focuses on the specific right to access criminal justice mechanisms as a victim of violent crime.81 75 76 77 78 79 80 81 82 83 84 32 Despite indications that violent crime is prevalent in detention, there are very few criminal investigations, prosecutions and convictions in respect of violent crimes committed in detention.82 Very few crimes are reported to Law Enforcement Authorities by victims themselves or by third parties – including the Detention Administration and Detention Staff.83 When criminal complaints are filed, they are often dismissed for lack of evidence.84 Many of the challenges in accessing justice as a victim of crime in detention flow directly from the general context of detention, described above. The reality of detention is that detainees are rarely able to file criminal complaints to Law Enforcement Authorities. The research highlights a number of reasons for this, discussed below: (i) Barriers to filing criminal complaints; (ii) Difficulties in accessing evidence of violent crimes in detention; (iii) Challenges in proving that the use of force is illegitimate; (iv) Limited access to legal advice and support; (v) Violence is dealt with through internal complaint mechanisms, rather than referred to Law Enforcement Authorities; and (vi) Lack of political or institutional will to investigate and prosecute lead to the impunity of perpetrators. Barriers to filing criminal complaint Member States have not developed services to implement Victims’ Rights which are effective for detained victims, perhaps because detainees are not readily recognised as a group at risk of being victimised. Detainees who become victims must rely on the general framework available for victims, which assumes that victims are able to freely access various services including Law Enforcement Authorities, civil society organisations and Victim Support Services. In practice, these services are rarely accessible to detainees. Communication difficulties Criminal complaints are usually filed in person, and as a detainee is (by definition) not free to travel to a police station, they must rely on third parties to file complaints for them, Recital 63 of the 2012 Directive (emphasis added). See e.g., ECtHR, Akkum and others v. Turkey, No. 21894/93, 24 June 2005, §210 (references omitted). Article 47 paragraph 1 of the Charter. Pursuant to Article 52 of the Charter, it must be interpreted as providing at least as much as the same rights provided under the ECHR and the ECtHR case law. Article 47 paragraph 1 therefore must be read as granting at least as much protection as Article 13 of the ECHR. ECtHR, Aksoy v. Turkey, No. 21987/93, 18 December 1996, § 98; ECtHR, Tagayeva and Others v. Russia, No. 26562/07, 13 April 2017, § 618; ECtHR, S.M. v. Croatia, No. 60561/14, 19 July 2018, § 60. ECtHR, S.M. v. Croatia, No. 60561/14, 19 July 2018, § 60. See e.g., EPR, Rule 70.1 et sec; UNCAT, Article 13; Mandela Rules, Rule 56; European Measures of Detention of Asylum Seekers, Recommendation 19. The difficulty for prisoners to access judges and courts generally were recently researched and highlighted in the European Prison Litigation Network white paper on access to justice for pre-trial detainees, Bringing Justice into Prison: For a common European Approach, 2019, available at: https://www.prisonlitigation.org/livre-blanc-sur-lacces-audroit-et-au-juge-en-detention-provisoire/?lang=en. See, PICUM, Guide to the EU Victims’ Directive: Advancing Access to Protection, Services and Justice for Undocumented Migrants, 2015, p. 15, citing Migreurop, The Hidden Face of Immigration Detention Camps in Europe, published in 2014 (“[e]ven when cases of abuse have been exposed, there is a lack of accountability and prosecution”), available at: http://picum.org/wp-content/uploads/2017/11/VictimsDirectiveGuide_Justice_EN.pdf. See Observatoire International des Prisons (France), Omerta, Opacité, Impunité, Enquête sur les violences commises par des agents pénitentiaires sur les personnes détenues, 2019, p. 68, available at: https://oip.org/publication/rapport-denquete-sur-les-violences-commises-par-des-agents-penitentiaires-sur-les-personnes-detenues/. Ibid.