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. 41