Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention Case study – Belgium Recommendations The Forest prison guards trial (2019) Public Authorities The Forest prison case involved 22 prison guards who had allegedly used undue violence, and inhuman and degrading treatment against detainees in the Forest prison between 2014 and 2015. One former prison director was also accused of criminal negligence, having allegedly authorised the solitary confinement of a person with psychiatric issues. The trial was the first of its kind in Belgium, given the number of prison guards involved in the proceedings. • 1) Preserve evidence of crime immediately: (i) Immediately refer the detainee to effective medical assistance;105 (ii) guarantee the timely preservation of audio-visual recordings as soon as an allegation of violence is made or that Detention Staff or the Detention Centre director becomes aware of the possibility of a violent episode. Recordings should be kept for a sufficiently long period of time to allow an investigation. Detainees were beaten because they refused to undress in front of a guard; following an exchange of insults; during the transfer from from cells to solitary confinement and in other instances. Detention Staff reportedly considered it a game to insult, humiliate and provoke prisoners, and organised bets on the number of prisoners they could send to solitary confinement in a single day. The accused guards also reportedly regularly cut electricity in a cell to cause incidents between the detainees, sent them to the toilet without toilet paper, left them in solitary confinement after the maximum time limit or cut off the water in the shower while they were washing. 2) Systematically report potential violent crime to Law Enforcement Authorities. Reporting should not be conditional upon a determination by Detention Staff and Detention Administration of whether the use of force is legitimate, to prevent the risk of bias against reporting. The victims were all vulnerable detainees, some suffering from psychological problems. Many were not able to speak French. The evidence presented in court included medical reports certifying traces of violence and transcripts of text message conversations between the guards, whose phones were seized in house searches during the investigation. In some of the exchanges, some of the guards explicitly bragged about using violence against detainees. The nature of the evidence used to convict showed the necessity of having crimes investigated by independent Law Enforcement Authorities with police powers to investigate. An internal or disciplinary investigation would not have uncovered phone records which were key to prove that the violence was illegitimate. Detainees filed several complaints to the prison’s director and the external monitoring bodies. An investigation finally started after years of knowing what was going on, as detainees were not initially trusted. A specific police unit investigated, and charges were finally brought against 22 Detention Staff including one of the prison’s directors. On 23 March 2019, many were convicted and sentenced for inhuman and degrading treatment and violence. Establish a clear and detailed protocol for Detention Staff and the Detention Administration on what steps to take when there is an allegation of violence/ill-treatment or when Detention Staff /Detention Administration become aware of such situations, in the absence of a complaint. The protocol should include the follwing steps: 3) Clarify or adopt rules on access to evidence for the detainee and his lawyer. Systematically and immediately grant access to evidence when there are disciplinary proceedings against the detainee and when detainees file a criminal complaint. 4) Protection of victim and witnesses against reprisals.106 Ensure that protection measures are made available to the victim and any witnesses supporting the allegation of violence (see further below). • Publish the protocol for oversight purposes. Monitoring bodies, public authorities, judicial authorities and other oversight mechanisms should oversee the response given by Detention Administration to violent crime in detention. The protocol can also be used as part of internal evaluation of Detention Staff and oversight of Detention Administration. It may form clear grounds to report breaches to supervisors. In extreme cases, it may engage the responsibility of a prison director/staff for failing to report allegations to Law Enforcement Authorities. • Collect and publish data to allow for oversight and research on: (i) complaints, investigations, prosecution/ dismissals and convictions of violent crime against detained victims; (ii) disciplinary procedures filed against Detention Staff for excessive use of force; (iii) legitimate use of force and disciplinary proceedings against detainees. 105 CPT, Documenting and reporting medical evidence of ill-treatment, Extract from the 23rd General Report of the CPT, 2013, available at: https://www.coe.int/en/web/cpt/medical-evidence-ill-treatment. 106 See below our recommendations on the right to protection. 37