Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention Definition of the right The recitals to the 2012 Directive state “[v]ictims of crime should (…) be provided with sufficient access to justice.”67 The important role of access to justice for victims of violent crime is illustrated below. The 2012 Directive must also be read in light of the obligations of Member States under the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) and Charter of Fundamental Rights of the EU (“Charter”) to protect human rights, which includes an obligation to criminalise, investigate and prosecute violent crime,68 whether by a state actor or private actor.69 As such, impunity for those responsible for violent crime is a violation of a state’s legal obligation to protect human rights.70 The European Court of Human Rights (“ECtHR”) has emphasised that in the “area of unlawful use of force by State agents”, criminal justice is the only possible response to violent crime, as opposed to administrative or civil proceedings.71 One objective of the 2012 Directive is “to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings.”72 The 2012 Directive provides a broad range of procedural rights once criminal proceedings have been initiated.73 It sets out rights in the context of filing a complaint.74 These important rights, however, presuppose that a victim has made a complaint. They are, therefore, less relevant in the context of detained victims of violent crime, for whom recognising victimisation and initiating mechanisms for access to justice are key challenges. The 2012 Directive recognises the risk that a range of factors can deter victims from coming forward to file complaints, for example:75 In order to encourage and facilitate reporting of crimes and to allow victims to break the cycle of repeat victimisation, it is essential that reliable support services are available to victims and that competent authorities are prepared to respond to victims' reports in a Figure 1: Justice for Victims of Violent Crime Justice for Victims of Violent Crime Procedural aspects Effective investigation and effective proceedings are conducted Outcome aspects Truth is established Offender is convicted Victim can participate as a party to the proceedings Offender is sentenced and punished Victim’s contributions receive due consideration Victim is compensated where appropriate Source: FRA, 2019 67 68 69 70 71 72 73 74 Recital 9 of the 2012 Directive. Fundamental Rights Agency of the EU, Victims’ rights as standards of criminal justice (Part I), 2019, p. 26, available at: https://fra.europa.eu/sites/default/files/fra_uploads/fra2019-justice-for-victims-of-violent-crime-part-1-standards_en.pdf. See e.g., ECtHR, Opuz v. Turkey, No. 33401/02, 9 June 2009, § 159. See e.g., ECtHR, Menson and Others v. the United Kingdom (decision), No. 47916/99, 6 May 2003. ECtHR, Lopes de Sousa Fernandes v. Portugal, No. 56080/13, 19 December 2017 [GC], § 135: “civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, were not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention.” Article 1 of the 2012 Directive. These include: the right to be heard (Article 10), the right to a review in the event of a decision not to prosecute (Article 11), the right to safeguards in the context of restorative justice services (Article 12); the right to legal aid (Article 13); the right to reimbursement of expenses (Article 14); and the right to receive information about their case (Article 6); and the right to translation and interpretation (Article 7). When filing a complaint, victims “who do not understand or speak the language of the competent authority” should be “enabled to make the complaint in a language that they understand” or should receive “the necessary linguistic assistance” (Article 5(2)) and Member States must “ensure that victims who do not understand or speak the language of the competent authority, receive translation, free of charge, of the written acknowledgement of their complaint (…), if they so request, in a language that they understand” (Article 5(3)). 31