Towards Pre-trial Detention as Ultima Ratio – Research and Action

This article is written by Walter Hammerschick and is about the project DETOUR, which was funded by the  Justice Programme of the European Commission.

In the 47 Member States of the Council of Europe more than 325.000 prisoners are held in pre-trial detention, more than 100.000 of them in the 28 Member States of the European Union. Pre-trial detention serves above all procedural purposes: to prevent a suspect from absconding or from tampering with evidence. The justice systems must have a way of ensuring that those accused stand trial.

Furthermore, detention may be a measure necessary because of a high risk that a suspect carries out (further) offenses of a severe nature. Often, however, detention seems the easiest way of achieving this end. This is contrary to the principle that, with respect to the fundamental right to liberty and the presumption of innocence, deprivation of liberty must only be applied when less severe mechanisms are insufficient to exercise control over the suspect and to guarantee his or her presence at trial (as ultima ratio). Generally, the principle of subsidiarity must be applied in a way that the suspect or accused may await the trial process in conditions of unrestricted liberty or, where justified, under specified restrictions. In prisons, remand detainees often suffer from worse conditions than sentenced prisoners – the European Committee for the Prevention of Torture (CPT) has called this a pan-European problem. Another common problem is an often-observed excessive length of pre-trial detention.

To uphold the fundamental right to freedom as well the presumption of innocence for the suspect by avoiding pre-trial detention also means to avoid harm for indirectly affected people like children or spouses and to avoid costs to affected persons and to society as a whole. The European Convention of Human Rights and initiatives by the EU show that member states share common values in this regard at least to a certain degree. This is further expressed in recommendations by the Council of Europe in this field, for example on prisoners’ rights. But even if there is a common set of values, differences in legal systems as well as the variance in pre-trial detention rates in the member states indicate that there are considerable discrepancies in how the ultima ratio principle is put into practice. These cannot be explained by differences with respect to the crime structure or to social conditions.

The DETOUR-project

Without questioning the sovereignty of the member states in criminal matters, the increasing need for transnational cooperation and the increasing number of cross border cases ask for mutual understanding. Mutual understanding and trust, however, are built up best on the basis of knowledge about the systems, procedures and practice in other countries as well as on the basis of common standards. The DETOUR-project aimed at both: The project was about exploring and analysing pre-trial detention practice and especially ways of reducing the use of pre-trial detention in seven European jurisdictions (Austria, Germany, Romania, Belgium, Lithuania, Ireland and the Netherlands).

After thorough desktop research on the legal preconditions and on the overall context of pre-trial detention in the participating countries, the first step of the empirical work consisted of collecting and analysing qualitative data by conducting observations and file analyses. This data provided the basis for in-depth interviews with a strong focus on the stance of prosecutors and judges and how they assess the decision-making process in the pre-trial phase. We consider that the views, perceptions and experiences of the judiciary are crucial to avoid pre-trial detention. Therefore, we put special emphasis on their assessment of the legal provisions, of the availability of alternatives, as well as of problems and obstacles relevant for the avoidance of pre-trial detention. To broaden the picture, we also included the perceptions and views of attorneys, as well as of representatives of organisations offering their services to avoid pre-trial detention. Of particular interest were also the high numbers of foreigners in pre-trial detention in many countries and the increasing number of cross-border cases that need to be solved within the EU. After the empirical work first results were presented to and discussed with practitioners at three international workshops. The final outcomes were presented at the international conference “Confronting dilemmas of pre-trial detention” in November 2017, in Vienna.

The outcomes of the project suggest that there are many threats to the ultima ratio principle, that there is much need to strengthen it, to pay attention to it and to over and over again remind of its importance. Find the comparative report, the recommendations and the national reports of the project partners at the projects website.

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