Pretrial detention overuse: the European way forward
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Pretrial detention overuse: the European way forward
Experts’ Panel: Pretrial detention
Raquel Venâncio, Pedro Liberado, Pedro das Neves & Joana Apóstolo
The use of pretrial detention around the world
Over the last decade, around three million people (up to a third of the world’s inmates) have been in custody as pretrial detainees awaiting trial or a final sentence.
Between 2000 and 2016, this number increased by at least 15%. Apart from Europe, some continents and individual countries saw far more significant increases than this in their pretrial populations. 
In the United States of America, one-third of the country’s imprisoned population (estimated at around 1,9 million inmates) have not yet been convicted – that’s 627,000 people in pretrial detention. In addition, data tell us that most people incarcerated in jails (67%) have not yet been tried by justice. 
In some countries the percentage of pretrial detention is above 50%, mainly contributing to prison overpopulation and overcrowding.
In the broader Europe that constitutes the Council of Europe (47 countries) , the latest SPACE I report on penitentiary statistics  indicates that 21.7% of the European prison population corresponds to inmates not serving a final sentence, a number that has seen a considerable increase in recent years .
Pretrial detention is a sensitive topic, “on the one hand, linked to the efficacy of the criminal prosecution and, thus, to the fulfilment of justice and security for the people. On the other hand, this measure is connected to the most valuable rights and guarantees which are, above all, meant to protect citizens’ freedom and physical and psychological integrity”. 
In the 27 Member States of the European Union , while it, pretrial detention seems to be still excessively used despite the efforts made in the last decades and even though it has been defined as a last resort measure or ultima ratio.
Various research reports  show that authorities in several countries are inclined to choose detention rather than alternatives to incarceration. 
Notwithstanding, “it is […] safe to assume that overcrowding often occurs in connection with the overuse of pretrial detention”, violating principles that should guide pretrial detention . Among these principles are the presumption of innocence, the right to a fair trial, legality, proportionality, and adequacy, and the ultima ratio principle. 
The consequences of pretrial detention overuse
The excessive application of pretrial detention further degrades material detention conditions, fuelling prisons’ overcrowding and working as a catalyser that aggravates many other problems.
The disproportionate use of this measure causes aggravated consequences for the suspects and state. The suspects tend to live in overcrowded prisons, poorly equipped with health services, lacking staff, facilitating violence between fellow (pretrial) detainees , and suffering additional pressures – compared to convicted inmates – as they face the uncertainties and anxieties “regularly connected to criminal proceedings”. 
Pretrial detainees risk losing their home, income, and current job, besides being away from their families. Furthermore, pretrial inmates usually have no access to work, education, or rehabilitation programmes while in detention. When released, they continue to be susceptible to economic exclusion since the social stigma is still present in society, preventing them, most times, from being employed again. 
From a cost-efficiency perspective, it is more expensive for the state (taxpayers) to lock a suspect than to apply alternatives whenever an alternative is applicable. 
Pretrial detainees are at a higher risk of economic exclusion due to a lack of income and loss of jobs in connection to the detention. Moreover, they may be affected by long-term unemployment or underemployment after release due to the “stigma of detention, combined with the loss of education and training activities”. 
European advancements concerning pretrial detention
In Europe, the recent European Court of Human Rights rulings  denote three overarching difficulties relating to pretrial detention application : i) unjustified resort to pretrial detention, ii) excessive duration of pretrial detention, and iii) poor detention conditions.
The issue has been on the European Commission’s agenda for some time, being referred to in the Green Paper on “Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention”  as a part of the Stockholm Roadmap, and more recently through the Commission’s intention to issue “Pretrial detention – EU recommendation on rights and conditions”  in 2022.
Considering the lack of EU standards on pretrial detention and conditions of confinement, there seems to be a need for new legislation that may support prevent the excessive use of pretrial detention. Such progress would contribute to ensuring pretrial detention as a measure of last resort.
Yet, as shown by the PRE-TRIAD project  interviews , decision-makers remain reluctant regarding the prospect of greater use of available alternatives (this scenario is further aggravated in the case of people living in precarious conditions, e.g., foreigners, poor and homeless individuals, as noted by a variety of studies)”. 
Foreigners in pretrial detention and the use of the European Supervision Order
Foreigners represent a substantial proportion of the population in pretrial detention in many European Union Member states, including Austria, Germany, Italy, and Portugal. 
The harmful impacts of the wide use of pretrial detention will not decrease unless the number of foreign nationals placed under pretrial detention is considered. Since foreigners often do not have regular residence in the host country and demonstrate weak or no social ties, they quite easily can find themselves in pretrial detention.
To facilitate the application of alternative measures to European Union citizens facing trial in another EU Member State, the European Commission (EC) created a specific common instrument under the Framework Decision 2009/829 – the European Supervision Order (ESO).
The EC recognises that “there is a risk of different treatment between those who are resident in the trial state and those who are not: non-resident risks being remanded into custody pending trial even where, in similar circumstances, a resident would not”. Hence, inscribed into the Framework Decision’s text is the instrument’s primary goal of “enhancing the protection of the general public through enabling a person resident in one EU Member State, but subject to criminal proceedings in a second Member State, to be supervised by the authorities in the State in which he or she is resident whilst awaiting trial.” 
Notwithstanding the instrument’s existence for over a decade, the data denotes how little it has been used.
Contrary to other instruments such as the European Arrest Warrant , the European Supervision Order “has been systematically ignored and underused by the Member States’ competent authorities”. 
For example, between 2015 and 2020, only seven European Supervision Orders were issued in Spain. This scenario mirrors other EU Member states experiences with this decision. Despite this, judges and prosecutors say they are largely content with how and the frequency with which alternatives are used in their countries. 
Thus, if judicial decision-makers are reluctant regarding the prospect of a higher application of alternatives overall, the scarce use of the European Supervision Order is not surprising.
The PRE-TRIAD interviews’ report indicates that the instrument is hardly known and even less often used. Among the reasons for such little activation, practitioners highlight the bureaucratic paths of the European Supervision Order and their lack of simplicity, lack of information and training for its use, along with time pressure, and slow replies from the competent authorities, as well as a lack of knowledge concerning other Member States’ judicial systems and language difficulties. 
Pretrial detention reduction: the way forward
Pretrial detention’s excessive use negatively impacts detainees and their fundamental rights, families, communities, and even countries’ financial resources. It is impossible to neglect the organisational impact on prison systems.
Therefore, acting immediately at European Union and national levels, using the instruments made available (such as the ESO), became imperative. Concerning actions at the national level, the PRE-TRIAD project consortium  makes several recommendations.
The need for training and awareness-raising activities is just once of the recommendations. When it comes to pretrial detention, the project research also calls for countries to consider the presumption of innocence principle, the principle of proportionality and the ultima ratio principle. Along the same lines, this EU-funded initiative also suggests assessing and considering introducing bail schemes, similar to the Toronto Bail Program. 
Recommendations also include evaluating existing organisational structures for trans-border cases and cooperation while assessing options to better support trans-border cooperation via improved, possibly centralised structures; and continuing and increasing efforts to promote judicial cooperation and communication among the Member States. 
In parallel, the initiative underlines the need to design a comprehensive strategy to promote mutual trust instruments at the European Union level. 
Don’t we do this, and we will be jeopardising the opportunity introduced by this critical instrument to push for essential reforms regarding the reduction of pretrialdetention.
 By numerous institutions, organisations and non-governmental organisations, namely the European Committee for the Prevention of Torture annual reports; the Helsinki Committee; the National Prevention Mechanisms reports; Fundamental Rights Agency reports; and the Rulings of the European Court of Human Rights.
 Tomsini-Joshi, D., Jürgens, R., & Csete, J. (2014). Health in pretrial detention. In S. Enggist, L. Møller, G. Gaudea, & C. Udesen (Eds.), Prisons and health (pp. 36-41). Copenhagen, DK: World Health Organization.
 The PRE-TRIAD consortium is funded by the Justice Programme of the European Commission. It is led by the Bremen Ministry of Justice (Germany), having as partners IPS Innovative Prison Systems (Portugal), the Center for the Study of Democracy (Bulgaria), AGENFOR International (Italy), the University of Innsbruck/IRKS (Austria) and European Strategies Consulting (Romania). For further information, visit www.pretrial-detention.org
 Hammerschick, W., Apóstolo, J., Venâncio, R., Aschermann, J., Matt, E., Durnescu, I., Grigorieva, D., Markov, D. (2021). D2.4 – Interviews Report. PRE-TRIAD project.
 Hammerschick, W., Morgenstern, C., Bikelis, S., Boone, M., Dunescu, I., Jonckheere, A., Lindeman, J., Maes, E., Rogan, M. (2018). Towards Pretrial Detention as Ultima Ratio – Recommendations, p. 71; Open Society Foundations & United Nations Development Program. (2011). The socioeconomic impact of pretrial detention. Open Society Foundations, p. 22; Lappi-Seppala, T. (2009). What social, political, and cultural factors characterise countries with a lower use of imprisonment? Background draft 26.4.2009. Unpublished Manuscript, p.30
 According to Hammerschick (2021a), at the time of the reporting (2019), Austria counted three-quarters of all pretrial detainees being foreign nationals, against 60% for Germany, one-third in Italy and one-quarter for Portugal.