Violence in closed institutions is dealt with
internally
Violence is generally not reported by victims or third parties.
When violence is reported, and when there is an institutional
response, it is often limited to disciplinary proceedings
against the offender or to administrative proceedings, for
example through a complaint to an external monitoring
body or Ombudsperson. However, these mechanisms are
not aimed at identifying and punishing the offender and fail
to meet the obligations of Member States under the 2012
Directive, the ECHR and the Charter.
States are required under European and International
standards to put in place complaint mechanisms and
monitoring bodies to control detention conditions. These
mechanisms, which are a necessity, are however often
regarded as self-sufficient, even in cases of violence. They
operate in parallel to rights and procedures that would be
available to all victims of crimes.
As a result, Detention Administration, monitoring bodies and
complaint mechanisms do not necessarily refer cases of
violence or ill-treatment to Law Enforcement Authorities,
even when there is a legal obligation to do so. The lack of
communication between the complaint mechanisms and the
police and prosecution authorities in relation to acts that may
constitute criminal offences in detention has been
highlighted in several Member States. In the Netherlands,
referrals between the prison complaint mechanisms and the
national prosecution services are rare. In Belgium, the
monitoring bodies of prisons (Commissions de Surveillance)
act as moderators between the Detention Administration (in
pre-trial detention only) but are not entrusted to report cases
to Law Enforcement Authorities. The same phenomenon was
also identified with medical staff.
The multiplication of internal or external bodies or authorities
who are entrusted to receive complaints from detainees
about detention conditions generally results in a dilution of
stakeholders’ responsibility to report criminal offences to Law
Enforcement Authorities in a timely manner, as was the case
in the Forest trial in Belgium (see box below). Internal and
administrative investigations also delay the intervention of
Law Enforcement Authorities which negatively impact the
preservation of evidence that may only be collected by Law
Enforcement Authorities.
Impunity resulting from the lack of political will
to investigate and prosecute
Despite evidence that violent crime does occur in detention,
there are very few criminal investigations, prosecutions and
Good practice – Austria
Prison authorities in Austria have the obligation to inform
the Public Prosecutor's office if a detainee has been a
victim of violence, a dangerous threat or whose sexual
integrity has been compromised. They also have the
obligation to inform Victim Support Services by phone
and in writing after obtaining the victim’s consent to do
so (for data protection reasons).
Prison authorities must grant facilitated access to the
prison and to the prisoner to Victim Support Services, as
they do for lawyers, social institutions, the police etc.
Consultations between Victim Support Services and the
prisoner are to be held where confidentiality can be
respected.
convictions. In the immigration setting, it has been reported
that “[e]ven when cases of abuse have been exposed, there
is a lack of accountability and prosecution.”102 Complaints
filed against Detention Staff (or the police) are often
dismissed before investigations start. This is explained by
several factors identified above, but also by a lack of political
will to follow up on allegations of violence in detention.
If the victim is not proactive, Law Enforcement Authorities
rarely investigate ex officio. This attitude can, in part, be
explained by the detention context described above,
including the deeply ingrained conceptual dichotomy
between offenders and victims, and the normalisation of
violence in detention. In Sweden, research indicated that
detainees who are victims of crime are a very low priority,
both those in immigration detention and in pre-trial
detention. According to police authorities in Sweden, it is
difficult investigate crimes if the victim does not want to
participate, which is often the case in detention.
In immigration detention, where (as in Hungary) the police
may be in charge of security within the Detention Centre,
conflicts of interest may prevent them from investigating
abuse committed by them or colleagues. When victims are
deported and no longer in the territory, Law Enforcement
Authorities tend to close the case or dismiss complaints, as
in several cases of allegations of violence in Belgium.103
Finally, there is a generalised lack of data available to allow
for sufficient oversight of investigations, prosecution and
dismissal of cases when the victim is a detainee. In the
Netherlands, the Committee Against Torture (“CAT”)
expressed concern at the lack of disaggregated data
available regarding the number of complaints, investigations,
prosecutions, convictions and sanctions in cases of torture
and ill-treatment.104
102 PICUM, Guide to the EU Victims’ Directive: Advancing Access to Protection, Services and Justice for Undocumented Migrants, 2015, p. 15, citing Migreurop, The Hidden Face
of Immigration Detention Camps in Europe, published in 2014 (“[e]ven when cases of abuse have been exposed, there is a lack of accountability and prosecution”), available
at: http://picum.org/wp-content/uploads/2017/11/VictimsDirectiveGuide_Justice_EN.pdf.
103 Contrary to the ECtHR decision in Csonka v. Hungary (2019) (“The fact that the applicant signed a waiver before his release carries little weight, since this happened while the
applicant was still at the police station, in all likelihood under the influence of the preceding situation and in the presence of the officers who had allegedly ill-treated him”).
104 CAT, Concluding observations on the seventh periodic report of the Netherlands, CAT/C/NLD/7, 18 December 2018, para. 56, available at:
https://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/NLD/CAT_C_NLD_CO_7_33166_E.pdf.
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