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/.
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