By Gianluca Cesaro
, Fair Trials


Probation officers have a key role to play in fighting excessive and unlawful pre-trial detention and EU common standards could help them to do just that.


Pre-trial detention is an exceptional deprivation of liberty against a person who is presumed innocent. As such, it is meant to be used only as a measure of last resort. Its impact on a person’s life can be devastating and can lead to serious violations of human rights, including the right to liberty, the right to family life, and the very right to a fair trial.


In Fair Trials’ recent report, A Measure of Last Resort? The practice of pre-trial detention decision-making in the EU, we mapped the law and practice across the EU, highlighting that pre-trial detention is excessively used across many member states. Foreign nationals, including those involved in cross-border criminal cases, appear to be disproportionately affected by this.

The excessive use of pre-trial detention is one of the major causes of prison overcrowding across the EU, itself a major cause of poor prison conditions in a number of EU Member States. The European Court of Human Rights has increasingly found violations of the prohibition of torture pursuant to Article 3 of the European Convention of Human Rights caused by prison overcrowding in EU member states (see, among others, pilot judgements Torreggiani and others v. Italy, Varga and Others v. Hungary, Stanciu v. Romania ; see also Mandic and Jovic v. Slovenia, Vasilescu v. Belgium).


Because of this, excessive use of pre-trial detention is increasingly becoming a risk for criminal justice cooperation between EU member states. Over the past few years, in implementing the European Arrest Warrant (EAW) system, a number of EU courts have begun to refuse to execute EAWs on the grounds that they were disproportionately issued and/or that the execution of the EAW would jeopardise the human rights of the transferred person. Such practices were recently affirmed by the Court of Justice of the European Union (CJEU) in its judgment in the joint Aranyosi and Caldararu cases (April 2016).


In the judgment, the Court stated that member states must assess whether there is a systematic failure in the issuing state to respect the provisions of the EU’s Charter of Fundamental Rights and, if so, whether that systemic failure presents a risk that the transferred person would be subjected to a fundamental rights violation. If such a risk does exist, such as the poor pre-trial detention conditions in the countries at issue in the Aranyosi and Caldararu cases, the member state should not transfer the person.

Moreover, in its Lanigan (2015) judgment, the Court ruled that a person being held in pre-trial detention pending a decision on whether to execute an EAW, may only be held up to maximum limits fixed by the jurisprudence of the European Court of Human Rights (ECtHR). For example, the subject cannot be detained unless the EAW procedure is, and continues to be, carried out with due diligence, meaning that the executing state must be actively engaged in trying to investigate and process the request in order to hold the person in detention, and must otherwise release the person or use an appropriate alternative to detention.


The implications of these rulings run deep. It is clear, for example, that the overuse of pre-trial detention across the EU needs to stop if the EAW is to be the efficient tool for cross-border criminal justice that it was meant to be. Probation services are, in our view, critical stakeholders in these reform efforts.


Our report highlights how alternatives to detention are key to fighting excessive and abusive pre-trial custody. However, alternatives are also one of the weakest links in the pre-trial detention decision-making chain.


In some countries, the law represents a first barrier to the use of alternatives. Exhaustive lists of permissible alternatives hinder a more creative approach to alternative measures and judges are not always required to consider alternatives before imposing pre-trial detention.


But more importantly, even where a full range of alternatives are available, prosecutors and judges do not use them because they do not trust them. A lack of information related to their successful use and a lack of understanding of the risks of placing people in pre-trial detention are creating a climate of fear around the use of alternatives. Moreover, poor legal and budgetary support for probation agencies to provide pre-trial services around pre-trial detention restricts their ability to encourage a greater use of alternatives by prosecutors and judges.


For this reason, amongst others, we are calling for the EU member states and the EU institutions to enact EU-wide legislation establishing minimum standards on pre-trial detention. Such legislation could, for instance, require judges to demonstrate that they have considered all relevant alternative measures before pre-trial detention is imposed. Legislation could also require that adequate provision be made – in both national law and budgets – for pre-trial services through national probation services.


Earlier in May, EU Commissioner for Justice, Consumers and Gender Equality Vera Jourová clearly expressed her support for such legislation and stated “My priority here is to improve the procedural safeguards related to pre-trial detention. The lack of minimum procedural safeguards for pre-trial detention can hinder judicial cooperation.


The EU has an opportunity to set pioneering standards on pre-trial detention, and it should not miss it. At Fair Trials we will continue to advocate for effective legislation that can improve the right to a fair trial for everyone, everywhere. But we need all justice actors to join efforts in advocating for and developing new legislation in the EU. And we sincerely hope that probation services from across the EU will join us in these efforts.


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