On the application of pretrial detention: expert contributions from Europe and beyond

Read this edition’s article on the overuse of pretrial detention in Europe and around the world.

The application of pretrial detention and the availability of alternative measures are a key topic for the International Union of Judges.

José Igreja Matos, Judge & President of the International Union of Judges

José Igreja Matos

Judge & President of the International Union of Judges
For judges, the issues surrounding pretrial detention go far beyond being a hot topic. Rather, they are fundamental to the exercise of our office because what is at stake is deciding under what circumstances to deprive an individual of their liberty.
 
The application of pretrial detention and the availability of alternative measures are regularly on the table at meetings between magistrates and are also a key topic for the International Union of Judges.
 
We must bear in mind that, when it comes to the public response to decisions on pretrial detention in courts, we are faced with two viewpoints that are at times diametrically opposed. One is the all-too-common viewpoint that sees the release of the accused as a lack of action on the part of the justice system, thus contributing to a general feeling of impunity. The other is that of those who take into consideration the defendants’ basic rights and who promote the use of alternative measures and do not believe in custodial sentences.
 
Our priority is to guarantee the protection of these rights, ensuring the prompt appearance of the accused before a judge and restricting the use of pretrial detention to the last available alternative.
Beyond the issue of the application of pretrial detention, I believe that there is also work to be done, generally, to improve conditions of imprisonment. Even for cases where pretrial detention is justified, there are many countries where the accused are held in questionable conditions.

Although it may be true in some countries, limited use of pretrial alternatives is not necessarily due to a lack of options.

Walter Hammerschick, Deputy Head of the Department of Applied Sociology of Law and Criminology at the University of Innsbruck, Austria

Walter Hammerschick

Deputy Head of the Department of Applied Sociology of Law and Criminology at the University of Innsbruck, Austria
Judges and prosecutors often refer to pretrial detention as the safe route when measures may be required to safeguard proceedings or prevent new crimes. Pretrial detention may be necessary in some cases, and we cannot ignore the fact that there will always be cases requiring custody.
 
However, generally referring to pretrial detention as the preferred safe path ignores the fundamental legal principles that are upheld in the European Union and beyond. These precepts include the presumption of innocence, the ultima ratio principle, and the principle of proportionality.
 
It may seem redundant to repeatedly highlight the need for measures that raise awareness of human rights and those fundamental legal principles mentioned above. Judges and prosecutors sometimes take it as an insult if their adherence to these values is questioned. Violations, however, don’t necessarily happen on purpose; they often occur due to an interplay of structural conditions, practical needs, and lack of information. Upholding these principles in such situations may require a very strong mindset, which needs to be further strengthened, supported, and given opportunities for reflection.
 
The outcomes of the PRE-TRIAD project (www.pretrial-detention.org) recommend paying more attention to these problems that are influencing judicial practice.
 
Connected to this is a well-known issue, whereby decisions on pretrial detention are regularly based on very little knowledge about the defendants, their families, and their socio-economic living conditions. Professional support that provides more and better information in this respect can improve the quality of decisions and support the application of suitable alternatives.
 
Although it may be true in some countries, limited use of alternatives is not necessarily due to a lack of options. Often, it is also due to a lack of trust in such measures on the part of the practitioners, caused by a lack of information and little or no empirical data providing direction. Regularly provided empirical data on pretrial detention practices and research on alternatives, including their strengths, limitations, and needs for improvement or development, have the potential to create informed practices. In turn, such an approach encourages and supports the use of alternative non-custodial measures more frequently and in a goal-oriented manner.
 
Of course, active support of a high-quality basis for decisions and a more frequent well-targeted use of alternatives need resources. Such investments, however, easily pay off in the long run. They can help to avoid pretrial detention more often and, thus, make significant monetary savings in several areas.

Dealing effectively with the overuse of pretrial detention needs to begin with a clear understanding of the causes and the contexts of this practice in a particular environment.

Ioan Durnescu, Professor at the University of Bucharest, Faculty of Sociology and Social Work & Co-editor of the European Journal of Probation

Ioan Durnescu

Professor at the University of Bucharest, Faculty of Sociology and Social Work & Co-editor of the European Journal of Probation

Reducing pretrial detention is a top priority for the European Commission, various states, and many individuals seeking justice. We have only to look at jurisdictions such as Austria, Luxembourg, or the Netherlands, for example, to see that the proportion of the prison population in pretrial detention is between 20 and 46%.[1] If we look at the use of pretrial detention among foreign prisoners, the reality is even more dramatic.

As we have seen in many papers and comparative studies, [2][3] different jurisdictions have adopted distinct solutions to deal with this preventive measure. This is mainly because the practices surrounding pretrial detention are deeply embedded in the cultural and penal context of a particular country.
 
The sources of overuse can differ across jurisdictions. It can be due to a disproportionate number of foreigners involved in crime, an over-criminalisation of drug use, a prison-centric penal policy, a long history of punitive attitudes amongst the judiciary or any number of other reasons.
 
Therefore, dealing effectively with the overuse of pretrial detention needs to begin with a clear understanding of the causes and the contexts of this practice in a particular environment. Solutions must involve all stakeholders, including policymakers, penal experts, judiciary organisations and education providers.
 
In many cases, supra-national bodies, such as the European Parliament, the Council of the European Union, or the Council of Europe come to play a significant role in shaping the practice around pretrial detention. Jurisprudence emanating from European courts such as the Luxembourg Court (see the Milev case) or the ECtHR (see Merabishvili v. Georgia) plays a more and more critical role in restraining the use of this measure.
 
I think two aspects could benefit from more attention, in the European context at least: the cultural dimension of this practice and the overall public sentiment.
 
When speaking about the cultural dimension, I refer to a dependency amongst some judges on a ‘business–as–usual’ approach or a more punitive view of using pretrial detention. For some, the measure is a form of quick sentencing that exceeds the European standards framework.
 
Public pressure can also be a critical extra-judicial factor that can impact the practice. An overly punitive-minded public could lead to the expectation of a disciplinary use of pretrial detention.
 
Like any other social change, reducing the use of pretrial detention is a process that will take time. To this end, collecting more sophisticated data to monitor and evaluate the dynamics of the phenomenon could be beneficial. It might prove useful, for example, to have more segmented data on the use of pretrial detention by alleged crime, gender, etc.  

Pretrial detention overuse is not only contributing to overcrowding and the deterioration in prison conditions but is also undermining the rule of law across Europe.

Norman L. Reimer, Global CEO of Fair Trials

Norman L. Reimer

Global CEO of Fair Trials

As Fair Trials’ 2016 report A Measure of Last Resort? The practice of pretrial detention decision-making in the EU showed, pretrial detention is used routinely in countries across Europe and contributes to the long-standing crisis in Europe’s prisons.

This continues to be a huge problem throughout the EU. Research that Fair Trials published last year (2021) showed that in 2020, pretrial detention rates rose across EU Member States, despite the serious health risks created by detaining people during the COVID-19 pandemic. This is not only contributing to overcrowding and the deterioration in prison conditions but is also undermining the rule of law across the region. Fair Trials has responded with a comprehensive roadmap, outlining the actions the EU must take to address this crisis.

The hammer of a criminal prosecution, all too often accompanied by pretrial detention and the eventual imposition of a jail sentence, is the most inhumane and least effective means of dealing with challenges that should be dealt with through other means, such as medical or mental health care, education, poverty alleviation, and housing.

Our Service has supported the application of diversion from prosecution and alternative sanctions and measures as the effective tools of a modern criminal justice policy.

Andrea Matoušková, Director-General of the Czech Probation and Mediation Service

Andrea Matoušková

Director-General of the Czech Probation and Mediation Service

Currently, a strengthened application of alternative sanctions and measures whenever possible, is a clear trend across Europe. We are being led to apply alternative sanctions as broadly as possible, not only for economic reasons, as imprisonment is the most expensive type of sentence, but also by the latest findings in criminology, which describe the process of desistance.

We must nurture well-functioning cooperation amongst all criminal justice partners. Therefore, our Service has supported the application of diversion from prosecution and alternative sanctions and measures as the effective tools of a modern criminal justice policy.

For years, we have strived to establish the foundations for prosecutors and judges to apply alternative sanctions and measures in practice as broadly as possible. At the pretrial stage, we create the conditions and carry out the enforcement of probation supervision in cases where the court has replaced custody with this measure.

Deprivation of liberty prior to conviction is limited, in exceptional terms, as a last resort.

José Lopes da Mota, Judge in the Supreme Court of Justice, Portugal

José Lopes da Mota

Judge in the Supreme Court of Justice, Portugal
[In Portugal] Deprivation of liberty prior to conviction is limited, in exceptional terms, as a last resort. We have very demanding legal criteria, whose application is made on a case-by-case basis and requires adequate grounds.
 
From my experience, I would identify two aspects in which I believe it is possible to make significant improvements with immediate effects in relation to pretrial detention: in the system of review of the measure and in the appeals system. Such a development would strengthen the protection of pretrial detainees’ individual rights and the management and efficiency of the process. The mandatory review of the measure, which is currently quarterly, could be done over shorter periods of two months, in an oral and adversarial debate, with the mandatory presence of the person, which can easily be ensured at least through videoconferencing.
 
The appeal system needs to be simplified and speeded up, so as to avoid rendering appeal decisions meaningless after the measure has been reviewed. Time limits should be substantially reduced, the trial should be oral, as is the case with habeas corpus, and the decision could also be simplified, oral and recorded. This would speed up the proceedings and reduce the time spent in pretrial detention to the absolute minimum.
 
At the same time, support should be provided for decisions relating to the imposition and maintenance of pretrial detention. The proper application of the standards of international law and the recommendations of the UN and the Council of Europe calls for the involvement of pretrial release services.

We’ve constantly highlighted that excessive pretrial detention has a negative impact.

Dan Halchin, Director-general of the Romanian Penitentiary Administration

Dan Halchin

 Director-general of the Romanian Penitentiary Administration
On the prison side, we’ve constantly highlighted that excessive pretrial detention has a negative impact, mainly by causing prison overcrowding. Furthermore, given the uncertainty related to this category of detainees, rehabilitation and sentence execution planning are put on hold.
 
In 2003, when our total prison population exceeded 48,000 inmates, Romania introduced a legal provision with specific amendments addressing pretrial detention. After this bill, there was a drop in pretrial detainees from 3,753 to 3,037.
 
Following entry into force of the New Criminal Code and New Code of Criminal Procedure on 1st February 2014, the new preventive measures that were adopted resulted in a decrease in the number of remanded inmates by nearly 50%.
 
This feat has been achieved through the courts progressively applying more alternative non-custodial measures, such as judicial control and house arrest. Currently, we have around 2,400 individuals remanded in custody.

One of the most significant challenges that is still ongoing is neutralising the false narrative that arraignment hearings increase impunity.

Luís Geraldo Lanfredi, Deputy Judge of the Presidency of the National Council of Justice, Brazil

Luís Geraldo Lanfredi

Deputy Judge of the Presidency of the National Council of Justice, Brazil
In 2015, Brazil introduced the practice of arraignment hearings. In addition to allowing immediate contact between the detainee and the Judiciary, arraignment hearings provide the judge with more information. Both the defence and prosecution teams assist in analysing the context of each detention and discussing whether pretrial detention is necessary.
 
One of the most significant challenges that is still ongoing is neutralising the false narrative that arraignment hearings exist to release people from jail and increase impunity. The primary message is that this judicial procedure has not altered criminal legislation in any way. In fact, arraignment hearings reinforce the application of criminal law and the Constitution, particularly at the time of arrest, since the abuse of authority is also considered a crime by the Brazilian legal system. Moreover, there is no impunity if the people on provisional release or subject to a precautionary measure continue to take part in criminal proceedings.
 
For a society used to understanding incarceration as the primary response to insecurity and fear, maintaining provisional detainees seems like an appropriate shortcut. In this scenario, however, there is no room for reflection on who we are sending to prison, for what type of crimes and, above all, what the impact that incarceration will likely have had on them once they are released.
References
 
[1] World Prison Brief, 2022.
[2] W. Hammerschick, C. Morgenstern, S. Bikelis, M. Boone, I. Durnescu, A. Jonckheere, J. Lindeman, E. Maes, M. Rogan, DETOUR – Towards Pretrial Detention as Ultima Ratio. Comparative report. Vienna: Institut für Recht – und Kriminalsoziologie, 2017.

 

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