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.
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