Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention
issues relating to detention conditions, the right to legal
advice in some circumstances, and the right to access
medical assistance. They are not informed of their rights to
file a criminal complaint to Law Enforcement Authorities if
they become victims of crime.
Contrary to pre-trial detainees, migrants in detention do not
always have access to any information on their rights and
duties as detainees. Where information is provided, it is not
done systematically or does not cover all the aspects that
pre-trial detainees receive. As with pre-trial detention, none
of the Member States researched include information on
Victims’ Rights.
Information on detainees’ rights is not accessible
and not efficiently provided
Even though information is not being provided to detainees
on Victims’ Rights (including the right to file a criminal
complaint), some of the rights that are being notified to
detainees would be relevant to a detainee who becomes a
victim of violence during detention. In particular, the right to
contact a lawyer, the right to legal aid in certain
circumstances and the right to file complaints through
specific internal or external administrative mechanisms.
When information on rights (and duties) of detainees is
provided, it is usually provided once, upon their admission to
the detention facility. This information is rarely provided at any
other time throughout detention by the Detention
Administration. Detainees are often incapable of absorbing
the information provided at that time in a meaningful way
upon their admittance to Detention Centres, which can
happen hours after the start of their detention and typically in
a situation of significant stress. In Belgium for instance, the
information pack is about 50 pages long, and includes the
internal rules and regulations as well as forms such as requests
for televisions, medical appointments etc.
complain to internal and external mechanisms in pre-trial
detention are only available in a limited number of
languages. In Croatia, migrants are informed of their
obligations and rights on bulletin boards in multiple
languages and, in Belgium, they are given brochures
translated into 25 languages.66 When the relevant translation
is not available, Detention Staff tend to ask for assistance
from other detainees who may speak two languages. In
Belgium, it is not unusual for Detention Staff to use tools such
as “Google Translate” to try to communicate with detainees.
Information is sometimes provided only in writing (including
translations when available). This means that illiterate
detainees do not have access to information. Detainees who
are illiterate or do not speak one of the languages used in
this written material may be left without any information on
their rights. There is no protocol or guidance on how to
inform detainees who do not speak one of the selected
languages.
When the information is provided (including translations), it
is often drafted or explained in technical jargon that is not
sufficiently accessible for most detainees (or non-lawyers
generally). For example, where copies of prisons’ internal
regulations are provided to detainees, they are not drafted
in a language sufficiently accessible to be understood and
used by detainees. In Hungary, the rights and obligations of
pre-trial detainees are provided to them in writing. Brochures
are translated into 24 languages, but research shows that the
language used in the brochures remains unclear and too
complex to understand for most detainees. The same
problem was identified in Belgium in both pre-trial and
immigration detention.
Recommendations
Public Authorities
•
Detention Staff must be expressly designated as
“competent authorities” under the 2012 Directive.
Because detainees will rarely, if ever, come into contact
with Law Enforcement Authorities (typically designated as
“competent authorities”), public authorities should clearly
identify Detention Staff as a “competent authority” for the
purposes of the 2012 Directive. Detention Staff are often
the first and the only contact with authorities that a victim
of violent crime suffered in detention may have.
•
Adopt a code of ethics for Detention Staff. In order to
prevent the risk of conflicts of interest, clear guidelines on
the role and obligations of “competent authorities” with
respect to victims should be established at a national level.
•
Train Detention Staff on Victims’ Rights and on
identifying victims of crime in detention. Such training
should be made a formal part of the education of
Detention Staff and workshops should be organised in
There are other sources of information available after
admittance. For instance, information is provided by social
services, on billboards and in Detention Centre libraries; but
it is often out-dated and not particularly helpful. Information
could be provided by external stakeholders including
lawyers, NGOs and other services available inside Detention
Centres. However, as discussed above, NGOs and even
lawyers often face difficulties in accessing Detention Centres.
Language barriers and illiteracy also obstruct effective access
to information about rights for some detainees. As discussed
above, in many Member States, the detained population in
prisons includes a high percentage of foreigners and this is
by definition the case in immigration detention. Effectively
providing information to detainees requires the use of
interpreters and translations. These are rarely available or
accessible. For example, in Croatia and the Netherlands, the
forms and brochures that contain rights such as the right to
66
MYRIA, Myriadocs 5, Détention, retour et éloignement des étrangers en Belgique, 2017, p. 58, available at:
https://www.myria.be/files/Myriadoc_5_D%C3%A9tention__retour_et_%C3%A9loignement.pdf.
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