Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention Lack of available protection measures in detention Research conducted in the Netherlands, Croatia and Belgium reveals that protection measures will only rarely impact on the Detention Staff who are allegedly involved in the violence - a suspension may in theory be imposed but this requires allegations to be sufficiently serious and corroborated by other, external and independent, evidence. In Sweden, if a member of Detention Staff is under investigation for having used violence against a detainee, the Detention Administration in charge of disciplinary proceedings may decide to suspend them from work while the investigation is ongoing. However, it is more common that the Detention Administration reaches an agreement with the staff member about changing their post during the investigation period. As explained above, sanctioning Detention Staff is generally made harder by the fact that taking protection measures in favour of a detainee assaulted by Detention Staff, implies an acknowledgment of wrongdoing, and Detention Administration tends to show solidarity towards its employees. It is particularly difficult to implement protection measures, such as physical protection, in Detention Centres. No appropriate needs assessment is conducted Similar risks of retaliation and re-victimisation apply in the context of violent crimes committed by other detainees. In a closed setting, it is impossible for a person to get away from the perpetrator. Furthermore, as discussed above, the normalisation of violence in places of detention, makes it unlikely that Detention Staff will take all necessary steps to prevent future occurrences of violence. Many of the challenges for detained victims in obtaining protection measures directly flow from the context of detention described above. Our research further identifies the following specific challenges in accessing protection measures, which we consider below: a) The lack of availability of protection measures in detention; and b) The lack of appropriate needs assessment. Where detainees are subjected to violence by other detainees, the Detention Administration may take measures to ensure the detainees are separated from each other. In Croatia, for example, penitentiary legislation provides for certain measures to be taken to ensure detainees' safety when incidences of violence occur between detainees. These include holding detainees in individual cells, intensive monitoring of detainees and medical visits. It is also possible to transfer one detainee, for example to another wing or another Detention Centre. If the victim is transferred, protection measures may imply readapting to a new environment, which is not always easy. Sometimes, the only available protection measures from further violence in detention is to restrict detainees’ rights – they may require victims to stay in their cells or to be placed in solitary confinement, or to restrict their access to the prison yard or other areas. Victims are therefore not incentivised to report crime and/or ask for protection. In Hungary, protection of a person in immigration detention includes placing the victim in solitary confinement. It was reported that a migrant woman was subjected to verbal sexual abuse by other asylum seekers and the only way the staff could protect her was to isolate her. When violence is caused by a member of Detention Staff, protection measures appear to be rarely implemented. Even when a report is made to the Detention Administration and is taken seriously, the available protection measures are extremely limited. The detainee may be transferred to another Detention Centre but, as discussed above, this can entail readapting to a new environment and potentially being further away from support networks and family outside. Member States typically entrust Law Enforcement Authorities to make an individual assessment and identify the specific protection needs of a victim. For example, in the Netherlands, it is the police who determine whether a person is vulnerable to repeated victimisation, intimidation and retaliation, and who inform Victim Support Services which may determine that the imposition of protective measures is necessary.126 As discussed previously, criminal offences committed in detention, however, appear to evade the criminal justice system. These protection mechanisms, managed by Law Enforcement Authorities, are not therefore triggered and victims of violence in detention are unprotected. If Law Enforcement Authorities are not engaged, it becomes incumbent on the Detention Administration and Detention Staff to address the protection needs of victims. However, as discussed above, they are not trained on Victims’ Rights, including the right to protection measures against repeat victimisation. As a result, it is rare for a needs assessment, and a proper identification of protection measures, to be made in detention, even when a victim is clearly identified. Although, in some Member States, Detention Centres have protocols or checklists to identify suicide risk, and the steps to take to protect the detainee; equivalents do not usually exist for inter-detainee or Detention Staff on detainee violence. Internal and external complaint mechanisms do not usually have a protocol in place regarding protection measures and the needs-based assessment required under the 2012 Directive. In the Netherlands, for example, the complaint mechanism does not include any specific framework for assessing the particular vulnerabilities and protection needs of victims. 126 NRC, Van Lonkhuyzen, The Police Will Investigate if a Victim is Vulnerable, 14 November 2016, available at https://www.nrc.nl/nieuws/2016/11/14/politie-gaat-bij-aangifteonderzoeken-of-slachtof¬fer-kwetsbaar-is-a1531694; Parliament, Second Chamber, “Implementation of Directive 2012/29 / EU of the European Par¬liament and of the Council of 25 October 2012 setting minimum standards for the rights, support and protection of victims of crime”, available at https://zoek.officielebekendmakingen.nl/kst34236-3.html. 43