Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention Good practice – Belgium In a Brussels prison, a team of police officers established a police desk in the prison, allowing detainees to complain directly to them about criminality in detention, including ill-treatment and violence by Detention Staff. Their regular presence within the prison enabled the officers to investigate alleged violence from within the prison. The police also installed a locked mailbox in the prison for detainees to directly address messages to them (rather than go through staff). The prison director welcomed this initiative. This police presence facilitated the prosecution and conviction of over 20 Detention Staff for ill-treatment and violence against detainees in March 2019 (see case study below). including family, their lawyer or another intermediary. To contact them, detainees need to rely on Detention Staff to access mail, phone or the internet (often they need to ask for permission), and even to see their lawyer. This creates risk or fear that staff will intercept communications, or know why they are made, which has a chilling effect on detainees’ willingness to file a complaint. In addition, Detention Staff may arbitrarily limit or delay the detainee’s access to communication means with the outside. There are also practical barriers to communication, including the cost of using phones or of postage or limits imposed by the Detention Administration on the use of these means of communication. For example, in Sweden, detainees in pretrial detention need to pay for postage and the mail is collected only once a week. In addition, they are not allowed to call a lawyer who is not appointed by the court which is a problem when the detainee is a victim, as the appointed lawyer is not paid under the legal aid scheme to represent his client in proceedings other than the criminal proceedings against them. Fear of reprisals Detainees who suffer from violence during their detention do not report it because they fear reprisals being made against them, or against their family members,85 by the offender and/or the Detention Staff. Reprisals from Detention Staff can take various forms, not necessarily violence, which affect the daily life of detainees. They may include loss of “privileges” like work, activities, visitation rights, food, health and hygiene products, and disciplinary sanctions (such as searches of cells, confiscation of personal items, body searches, and solitary confinement). Detainees also fear that reporting abuse may adversely impact their sentence (i.e. whether they will benefit from early release) and their immigration status. In some Member 85 86 Special Advisor to the President of the European Commission Strengthening Victims’ Rights: From Compensation to Reparation86 “It is widely recognised that undocumented migrants, and those awaiting a decision regarding their residence status, are discouraged to report a crime due to beliefs that their information will be shared with immigration authorities, or due to negative experience with law enforcement agencies in the past.” States, violence by Detention Staff is often “hidden” under the guise of disciplinary sanctions against the detainee and as “legitimate” use of force (discussed below). Reprisals from Detention Staff may therefore not only lead to additional violence, they may also result in potential disciplinary sanctions being added to the detainee’s record (discussed below). Such a record may weigh against the detainee when relevant authorities decide on the outcome of the procedure for which they are detained – still pending for those in pretrial and immigration detention – or on the continuation of their detention. Detainees often do not see the point in reporting abuse Given these risks, a victim of violence in detention will have to see that they have something significant to gain from reporting an incident. Frequently, they do not. There is a general lack of trust in the system and its fairness, and in Law Enforcement Authorities who may have been involved in the victim being placed in detention in the first place. Procedurally, they also know their chances of having their complaints dismissed are high. In addition, a criminal investigation and trial against their offender may often take years and, for the reasons set out below, the chances of losing at trial are high. Finally, the chances of obtaining compensation are, as discussed below, almost nil. There is virtually no gain in pursuing criminal proceedings, and a lot to lose. Good practice – Sweden In immigration detention, the Swedish Migration Agency provides ready-made templates within women's departments in order to be able to file complaints to the police. During the national roundtable organised in the context of this project, the police representative agreed that they should provide similar templates for all detainees. In Hungary for example, reprisals may affect detainees’ families outside detention. The 2012 Directive specifically includes this possibility by providing for protection measures not only for the victim but also for their families, discussed below. Special Adviser, J. Milquet, to the President of the European Commission, Strengthening Victims’ Rights: From Compensation to Reparation, 2019, p. 56, available at: https://ec.europa.eu/info/sites/info/files/strengthening_victims_rights_-_from_compensation_to_reparation_rev.pdf. 33