Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention It was reported that a Chinese national was held alone in a cell, unable to communicate with anyone. PICUM notes generally: “[a] host of practical obstacles also impede undocumented migrants’ access to protection and legal remedy through the justice system, including language barriers, poverty, social isolation, ignorance of their rights, and the absence of legal representation.”38 • Those who disassociate themselves from supervisors who commit violence and denounce their behaviour are quickly sidelined from the group. As a result, they can be subjected to all kinds of bullying and intimidation. Faced with this risk, some will therefore be reluctant to report the facts. (…) [W]histleblowers are reluctant to come forward, because of a lack of a clear statement of their role and a general definition of the protective measures that can be applied to them. Institutional barriers – conflicts of interests and self-protection There are multiple institutional factors affecting the Detention Administration and other stakeholders which prevent effective responses to violent crime committed in detention. At various levels there are embedded conflicts of interest and self-protection reflexes by those working within places of detention that can foster a rule of silence (“esprit de corps” or “omerta”). As noted by the CPT, “[t]oo often the esprit de corps leads to a willingness to stick together and help each other when allegations of ill-treatment are made, to even cover up the illegal acts of colleagues”.39 The lack of adequate investigations and accountability into instances of violence “is an important contributing factor as it creates a climate of impunity which results in the recurrence of this type of violence.”40 Such factors can operate at various levels: • Directors of Detention Centres rely on their staff for the functioning of the institution. Recruiting and retaining staff can be challenging and Detention Centres are often understaffed. This places directors in a situation of dependency on their staff and the trade unions representing them. This may have an impact on the ability of directors to discipline staff, recognise victimisation situations and report criminal conduct to Law Enforcement Authorities (even where this is a legal obligation).41 • If they witness violence against detainees (particularly when attributable to other members of staff), Detention Staff may fear that reporting this would prejudice the security of their employment. Similarly, directors may fail to report criminal conduct committed by their staff to Law Enforcement Authorities as they are ultimately responsible for detainees’ security. More broadly, directors may be too remote from the reality on the ground.42 39 40 41 42 43 44 45 Loyalty between staff members is a “golden rule” in detention. Members of the Detention Staff depend on each other for their own security. Reporting wrongful conduct on the part of a colleague may have dire consequences. As reported in France:43 The absence of reporting is exacerbated by the lack of safe channels of communication for witnesses to report crime and abuse committed by members of the Detention Staff. • This is also the case for non-security staff members, such as the medical staff,44 who also need to maintain a “social peace” with their colleagues.45 Doctors and nurses are often best placed to identify ill-treatment and report it but, in some Member States, are employed by the Detention Administration and are therefore conflicted. More broadly, hiring policies favour hiring security agents over staff who are trained to work with people such as educators, and social workers. Similar self-protection reflexes apply to detainees. Whether violence is committed by another detainee or a member of the Detention Staff, the close proximity and dependency that detained victims have with their aggressors have consequences on their ability to act. Detainees’ extreme dependence on the Detention Administration and Detention Staff may dissuade them from reporting crime and filing complaints, increasing their vulnerability. Their livelihood and safety depend on how they are treated. Making a complaint may often require them to report violence to the organisation which is – or who employs the person who is – ultimately responsible for it. Institutional conflicts of interest may also affect the work of monitoring bodies, complaint mechanisms and NGOs. For example, the same institution is sometimes tasked with both handling complaints and monitoring detention facilities, which raises questions about transparency and CPT, Combatting impunity, Extract from the 14th General Report of the CPT, published in 2004, p. 1, available at: https://rm.coe.int/16806cd08c; Observatoire International des Prisons (France), Omerta, Opacité, Impunité, Enquête sur les violences commises par des agents penitentiaries sur les personnes détenues, 2019, p. 46 (free translation), available at: https://oip.org/publication/rapport-denquete-sur-les-violences-commises-par-des-agents-penitentiaires-sur-les-personnes-detenues/. Human Rights Council, Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the SecretaryGeneral, Human rights in the administration of justice, 2019, A/HRC/42/20, p. 6, available at: https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/session42/Pages/ListReports.aspx. See e.g., Observatoire International des Prisons (France), Omerta, Opacité, Impunité, Enquête sur les violences commises par des agents pénitentiaires sur les personnes détenues, 2019, p. 81, available at: https://oip.org/publication/rapport-denquete-sur-les-violences-commises-par-des-agents-penitentiaires-sur-les-personnes-detenues/. Observatoire International des Prisons (France), ibid. Ibid (free translation). Although they are sometimes employed by a different administration, the Ministry of Health (in Italy and France for example), medical staff are reluctant to report criminal conduct by colleagues or attributable to the institution, not out of fear of losing their employment, but to maintain social peace. See e.g., Observatoire International des Prisons (France), Omerta, Opacité, Impunité, Enquête sur les violences commises par des agents pénitentiaires sur les personnes détenues, 2019, p. 39 et sec, available at: https://oip.org/publication/rapport-denquete-sur-les-violences-commises-par-des-agents-penitentiaires-sur-les-personnesdetenues/. 19