Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention By isolating people, detention (whether pre-trial in the context of criminal proceedings, or administrative in the context of immigration procedures) places people in a situation of great vulnerability and dependency on the officials in charge of Detention Centres, as well as other detainees. Vulnerability is exacerbated by the fact that people who end up in pre-trial detention tend to come from low socio-economic backgrounds and/or are foreigners; and those who end up in immigration detention are foreigners, perhaps with no knowledge of the national language or system, and no local support network. Studies have shown that even short periods of detention can have long-term impacts on physical and mental health.159 But placing someone in detention also exposes them to the risk of violence and states who decide to place people in detention have a legal and moral responsibility to safeguard their physical integrity. This responsibility appears to be diluted amongst the different stakeholders involved in monitoring detention conditions more broadly, leading to a failure to recognise that where people in detention suffer violent crime, they are victims and as such must be entitled to exercise the rights recognised in EU law of victims of crime and to make a complaint based on criminal law to the relevant law enforcement authorities. Despite violence being known to occur in detention, there are no adequate reporting systems in place, such that few reports of violence ever reach the criminal justice system and lead to the opening of a criminal investigation. Instead, violence tends not to be reported or, when it is, is addressed through internal disciplinary measures. The failure to enable victims of violence suffered in detention to access justice leads to the impunity of those who commit violence in detention. This impunity feeds more violence and the “normalisation” of violence as part of being detained. Beyond the impunity of perpetrators, the ineffectiveness of rights in detention places detainees at the mercy of the arbitrariness of state officials, threatening the rule of law itself in places of detention. Just because someone is detained (whether lawfully or not) it does not mean they should no longer be entitled to exercise their rights if they become a victim of violence. Member States must seek to implement effectively the rights of victims enshrined in EU law in the context of detention. This starts with changing the perspective of domestic stakeholders, to overcome the fact that many struggle to recognise that a detainee can also be a victim. Many of the challenges in accessing Victims’ Rights in detention are linked to the incomplete implementation of the 2012 Directive and 2004 Directive by Member States, and the difficulty in recognising the relevance of Victims’ Rights and applying effective protections for them in the context of detention. But the EU cannot let Member States “get away with murder” because it happens behind the closed doors of detention facilities,and must ensure that Member States enforce EU law obligations to protect people in detention. In this respect, the European Commission can support Member States through further guidance on implementation and training. But beyond the implementation of the rights enshrined in existing EU law, regional legislative action is necessary: first, to tackle the overuse of pre-trial detention, which is linked to the overcrowding of European prisons, by setting minimum standards on the use of pre-trial detention; and second, to establish minimum standards on detention conditions with recognised procedural rights for people in detention. EU action will help reinforce the mutual trust between Member States that underpins the good functioning of the mutual recognition instruments, key to the EU’s common area for freedom, security and justice. The final part of this report identifies, first, the areas in which EU action can advance Member States’ implementation of EU law on Victims’ Rights, through clearer standards, guidelines, implementation monitoring, enforcement, funding and technical assistance. Beyond implementation of existing EU standards, we also urge the EU to take legislative action to address the current conditions of detention across the EU that expose detainees to the risk of violence, without any meaningful and effective redress mechanism. Effective implementation of existing EU standards Recommendation 1: Guidance on implementation of the rights recognised in the 2012 Directive. a) “Vulnerability” in Article 22 of the 2012 Directive, explicitly recognising that persons held in immigration or pre-trial detention are a particularly vulnerable group Member States are required to make individual needs assessments and have regard to victims whose relationship to and dependence on the offender make them particularly vulnerable: “[i]n this regard, victims of terrorism, organised crime, human trafficking, gender-based violence, violence in a close relationship, sexual violence, exploitation or hate crime, and victims with disabilities shall be duly considered.”160 These categories of victims are particularly vulnerable and exposed to the risk of repeat victimisation, intimidation and retaliation. In their implementation of the 2012 Directive, some Member States have taken account the particular protection that some or all of these specific groups require. The ECtHR recognises that detainees constitute a particularly vulnerable group and the correlated duty for states to 159 PICUM, available at: https://picum.org/focus-area/borders-and-detention/. 160 Article 22 of the 2012 Directive. 55