The Need for and Possible Content of EU Pre-trial Detention Rules

• Date: 15 December 2020
• Year: 2020
• Author: Prof. Estella Baker,Tricia Harkin,Prof. Dr. Valsamis Mitsilegas LLM (Kent),Nina Peršak
• Pages: 67
• DOI: https://doi.org/10.30709/eucrim-2020-020

I. Introduction

Pre-trial detention (henceforth PTD) is an inherently problematic concept. Compulsorily to detain an individual who has not (yet) been convicted of an offence is in clear conflict with the right to liberty (Art. 5(1) ECHR) and the presumption of innocence (Art. 48(1) CFR; Art. 6(2) ECHR, Art. 14(2) ICCPR). It follows that PTD must be grounded in a lawful arrest and should always be an exceptional measure, to be used only (i) when doing so can be justified on objective grounds; (ii) if no other less intrusive means are available or effective in securing its aim; and (iii) for a reasonable length of time. The exceptionality of PTD is reflected in criminal laws of EU Member States, which specify the criteria and procedures for its use, requirements of regular monitoring, judicial review and priority in scheduling for trial. Measures of this type are meant to ensure that PTD is used sparingly but research demonstrates that they are not always respected.¹

Many of PTD-related problems have an EU dimension. To cite one example, the notable differences between Member States in the legal conditions for, and actual execution of, PTD have provided grounds for challenging or even refusing the execution of European Arrest Warrants (EAWs) (cf. the cases of Aranyosi and Căldăraru).² They therefore have the capacity to compromise mutual trust, constituting an impediment to the functioning of mutual recognition and consequent effectiveness of existing EU criminal law instruments. A number of empirical studies, moreover, reveal several other problems with the practical implementation of PTD (see the list below), which reinforce the case for EU action in this area, particularly in light of the evolving CJEU case law.

II. Need and Reasons for EU Action 1. Existing problems and objectives of EU action

The problems that are associated with PTD can be grouped under four headings:

(1) Issues relating to the pattern of use of PTD by the Member States:

• Inconsistent use of PTD across the Member States, reflecting a significant divergence in PTD rules, e.g. the criteria for deciding on detention, and significant differences in the average duration,³ providing prima facie evidence of arbitrariness of use;⁴

• Excessive use due to a presumption of PTD rather than a presumption of liberty or use of criteria that focus on the alleged offence rather than the risk posed by the individual;⁵

• Lack of alternatives to detention or excessive use of, or over-reliance on, PTD when alternatives are available or better suited (i.e. less intrusive means to achieve the same goal);⁶

• Over-representation of foreign nationals suggesting bias against them that is founded in the automatic assumption that they pose a flight risk;⁷

• Contribution of PTD to the general problem of prison overcrowding;⁸

• Evidence that PTD is associated with an increased risk of receiving a custodial sentence following conviction,⁹ thereby exacerbating overcrowding and many other problems.

(2) Issues relating to the conditions of detention and impact of PTD on pre-trial detainees¹⁰:

• The poor state of detention conditions in certain EU Member States that are often worse than for sentenced prisoners,¹¹ e.g. due to the use of facilities that are not designed for long-term detention,¹² lack of education and rehabilitative training courses, etc.;¹³

• Restrictions on contact with outside world, e.g. regarding entitlement to telephone calls or visits, or due to use of solitary confinement;¹⁴

• Risk of intimidation and ill-treatment by staff or officials;¹⁵

• Exposure to the violence and/or criminogenic influence of other inmates;¹⁶

• Risks to health, e.g. through spread of contagious disease or exposure to illicit drugs;¹⁷

• Adverse psychological impacts, e.g. the suicide rates among pre-trial detainees is known to be higher than for sentenced prisoners;¹⁸

• Particularly harmful impact on children¹⁹ and other vulnerable groups, e.g. pregnant women, those with physical or mental disabilities, older people, etc.;

• Adverse impact of pre-trial detention experience on longer-term attitudes to custody, i.e. research suggests that the experience of PTD influences behaviour during any subsequent custodial sentence, attitudes to rehabilitation, etc.²⁰

(3) Impact on fairness of criminal proceedings:

• Violations of fundamental rights, and consequent undermining of the credibility of mutual recognition and the EAW system;

• Increase in refusals to execute EAWs if issues are not addressed;

• Difficulties in preparing the case for the defence,²¹ including those caused by the psycho-social consequences of PTD for the suspect;²²

• Structural imbalances between the prosecution and defence in terms of power and resources, e.g. problems in securing access to a lawyer, access to translation, access to the case file, and legal aid;²³

• Unjustified use of PTD, e.g. in order to coerce a confession;²⁴

• Potential opportunities for corruption incurring the risk of undermining public confidence in the criminal justice system;²⁵

• Failure to subtract the time spent in PTD from the final sentence;

• Absence of compensation for time spent in PTD that was unjustified/unlawful.

(4) Impact on persons other than the suspect and/or on wider society:

• Punitive impact on suspects’ families: human consequences of prolonged separation,²⁶ impact on child care responsibilities, loss of income, loss of housing or accommodation,²⁷ exposure to spread of infectious disease contracted by suspects while in detention;²⁸

• Direct economic costs to society: PTD is expensive compared with alternative measures;

• Indirect economic costs to society: loss of revenue linked to pre-trial detainees’ loss of employment,²⁹ associated demand for social assistance for family members, equivalent costs relating to former employees in cases where PTD causes business failures;³⁰

• Loss of harm reduction potential: resources devoted to unjustified PTD could be invested more productively, e.g. in rehabilitation or crime prevention measures or victim support.³¹

Many of these problems are associated with deep-seated systemic practices and/or political and legal cultures at national level that promote the perception that governments are “tough on crime” at the expense of the presumption of innocence.³² The recent DETOUR comparative report, for example, identifies lack of prosecutorial restraint, closeness between prosecutors and judges, and societal pressure to focus on types of offences (e.g. burglary) and not the individual’s unique circumstances as relevant factors.³³ Other research has pointed to a “culture of distrust in alternatives” to PTD.³⁴ As the DETOUR report highlights, the existence of these deeper factors militates against a consistent EU-wide approach to PTD as a last resort. Further practical problems concern the lack of resources that are needed to address deficiencies in the Member States and the existence of inconsistent terminology,³⁵ which can affect methodology of data collection and validity of comparisons.

Emphasising the need for EU action in view of obvious shortcomings, criminal defence lawyers and their organisations, such as the European Criminal Bar Association (ECBA), have stressed the following: ³⁶

[t]here are no EU standards for time limits for pre-trial detention or less intrusive measures or specific remedies and/or regular judicial control by the responsible authorities. […] Practical issues arise repeatedly regarding access to the file and intentional non-disclosure of (exculpatory) information by the state authorities throughout Europe […].

The main objective of EU action should be to address these issues based on sound and current empirical data through the provision of (legislative and soft-action) tools, thereby enhancing justice, fairness and overall effectiveness of legal and judicial systems in the EU and strengthening the Area of Freedom, Security, and Justice (AFSJ). Significant divergences among Member States affect the mutual trust between them, the internal legitimacy of their justice systems and consequently the quality of criminal justice (and the perception thereof) in the EU.³⁷ The 2009 Roadmap on Criminal Procedural Rights recognised that “excessively long periods of pre-trial detention are detrimental for the individual, can prejudice judicial cooperation between the Member States and do not represent the values for which the European Union stands.”³⁸ The European Commission in its 2011 Green Paper³⁹ further recognised that while detention issues, including pre-trial detention, are the responsibility of Member States, “there are reasons for the European Union to look into these issues, notwithstanding the principle of subsidiarity. Detention issues come within the purview of the European Union as first they are a relevant aspect of the rights that must be safeguarded in order to promote mutual trust and ensure the smooth functioning of mutual recognition instruments, and second, the European Union has certain values to uphold.” The case law on the EAW in the eight years since the Green Paper was published has borne out the relevance of detention-related issues to its operation.

Minimum standards with respect to PTD, such as provisions on review of the grounds of PTD and maximum time limits on PTD, could thus enhance mutual trust between Member States, increase the effectiveness of mutual recognition instruments and demonstrate commitment to upholding the EU's fundamental values. Where applicable, measures that are taken as part of any initiative on PTD should align with other relevant EU policies, such as those relating to the combating of illicit drugs and the promotion of public health.

2. EU legal basis and competence, possible added value of EU action

EU action on pre-trial detention could be grounded in Art. 82(2) TFEU. As regards the EU rule of PTD as a last resort⁴⁰ specifically, finding a legal basis for such an overarching EU rule to be applied in all (cross-border and domestic) cases...