Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention Definition of the right (i) The long and ineffective process of obtaining compensation from the offender; The 2012 Directive provides for the right of victims to receive “adequate compensation” from the offender.142 Member States have the obligation to “promote measures to encourage offenders to provide adequate compensation to victims.”143 Moreover, the 2004 Directive requires Member States to ensure that there is a scheme in place for state compensation to victims of violent intentional crimes committed in their territories.144 The scheme must guarantee fair and appropriate compensation to victims.145 (iii) The fact that the complaint mechanisms available to detainees do not generally include the award of compensation. Both the 2004 and 2012 Directives provide for access to compensation in cross-border situations. This includes the right to submit an application in the Member State of residence, for harm suffered as a result of a crime committed in another EU country.146 The 2012 Directive specifies that “the right to a decision on compensation from the offender and the relevant applicable procedure should also apply to victims resident in a Member State other than the Member State where the criminal offence was committed.”147 In none of the Member States we considered is there specific legislation establishing a procedure by which victims of violent crime or ill-treatment in detention may claim compensation from either the individual offender or the state. As for all victims of crime, compensation may usually be obtained from the offender following a conviction in criminal proceedings or a finding of civil responsibility (tort) in civil proceedings. Access to legal aid is also relevant to the right to compensation. The 2012 Directive requires Member States to provide a right to legal aid for the purposes of advice and legal representation;148 interpretation and translation expenses;149 and possible reimbursement of other expenses.150 Challenges with respect to the right to adequate compensation Many of the challenges relating to access to adequate compensation for victims of violent crime in detention are challenges encountered by victims generally. The Special Adviser to the European Commission President on Victims’ Rights recently identified the key challenges faced by victims generally as including the length of criminal or civil proceedings, the dependence of state compensation awards on the conduct of criminal proceedings, the nature and amount of the compensation awarded, and the difficulty in accessing a remedy in cross-border situations.151 The present report does not focus on these systemic challenges faced by all victims, but on the additional challenges that are specific to detained victims, and directly flow from the context of detention, namely: (ii) The limitations on detained victims being awarded state compensation; and Obtaining compensation from the offender is long and ineffective However, as explained above, detainees rarely even report crime, leaving little prospect for any form of compensation. Special Advisor to the President of the European Commission Strengthening Victims’ Rights: From Compensation to Reparation152 “If victims do not report crimes, they are not entitled to seek compensation. These are often the most vulnerable victims, such as children, undocumented migrants, homeless, trafficked victims to name a few. They are arguably the most in need of emergency compensation.” Even where victims do report violence suffered in detention, they face numerous hurdles (described in this report) before obtaining compensation, including gathering evidence, time, lack of legal aid and legal costs. Moreover, criminal and civil proceedings are often long, and even when damages are awarded to the victim, it is often difficult to enforce the judgment against the offender due to the added legal costs and insolvency of the offender.153 142 143 144 145 146 147 148 149 150 151 Article 16 (2) of the 2012 Directive. Article 16 (2) of the 2012 Directive. Article 12 of the 2004 Directive. Article 12(2) of the 2004 Directive. Article 1 of the 2004 Directive and Article 17 of the 2012 Directive. Recital 49 of 2012 Directive. Article 13 of 2012 Directive. Article 7 of the 2012 Directive. Article 14 of the 2012 Directive. Special Adviser, J. Milquet, to the President of the European Commission, Strengthening Victims’ Rights: From Compensation to Reparation, 2019, available at: https://ec.europa.eu/info/sites/info/files/strengthening_victims_rights_-_from_compensation_to_reparation_rev.pdf. 152 Ibid, p. 56. 153 Ibid, pp. 24-25. 51