The preventive detention phenomenon: an increasing trend
On a global scale, 10.74 million individuals were, as of 2018, arrested worldwide. Moreover, according to a recent study, the Institute for Crime and Justice Policy Research noted a sharp increase of 15% around the world, since 2000 up until 2019 in pre-trial arrests.
In fact, “at any given time, up to a third of the world’s prisoners are awaiting trial or a final sentence”. Bearing in mind this striking proportion, as well as its harmful consequences, the issue of pre-trial detention should not be overlooked.
Indeed, excessive employment of preventive detention adversely impacts not only detainees and their fundamental rights, but also their families, communities, and even countries’ financial resources.
Additionally, it is impossible to neglect the organisational impact on prison systems since “an important cause of overcrowding is often the increasing use of pre-trial detention”.
The multi-level impact of pre-trial detention
In this context, an unbridled usage of pre-trial detention and profound neglect of alternative measures will ultimately entail several damaging results, on different levels, which can be understood as threefold: i) national (e.g., financial cost related to each EU Member State [EUMS]). ii) organisational (e.g., lack of human/financial resources; overcrowding); and iii) individual (e.g., psychological, social, and financial burden).
At the national level, pre-trial detention has clear detrimental consequences to national finances and the public sector budget. In fact, “every pre-trial detention means increased expense (i.e., direct costs), reduced revenue (i.e., indirect costs), and fewer resources for other programmes (i.e., opportunity costs)”.
Direct costs, for instance, are the ones specifically related to the purpose of ensuring the efficient operation of the detention facility (i.e., as more offenders are detained, more prison officers need to be recruited), besides material costs (e.g., food, clothing, beds, healthcare) and pursuing cases against detainees (e.g., investigations, judicial process). Such will lead to several other problems, such as overcrowded cells, low quality/quantity of food, and inefficient healthcare (which could then lead to riots and troublesome relationships between inmates and between inmates and prison staff).
On the other hand, indirect costs are the ones which are often hidden from ‘plain sight’, namely the ones related to the society’s and EUMS’s loss of productivity, reduced tax payments, and increased risk of transmission of diseases (i.e., when individuals are eventually released from pre-trial detention).
Also, the excessive use of pre-trial detention will ultimately hold captive important resources that could be used to invest in socio-economic development, resulting in opportunity costs.
At the organisational level, by frequently overcrowding most of the prison systems in the EUMSs, pre-trial detention ends up functioning as a catalyser that aggravates many other pre-existing problems. Therefore, as Csete states, it is entirely unsurprising to observe that the “excessive use of pre-trial detention has resulted in (not only in) overcrowded, (but also) unhygienic, chaotic, and violent environments for detainees in many countries”.
Health-related consequences are some of the long-lasting complications which tend to get worse through its excessive promotion. For instance, “the spread of disease, making privacy impossible, overburdening services and increasing tension and therefore violence among detainees and between detainees and staff”.
Lastly, at the individual level, the World Health Organisation quite unsurprisingly refers to pre-trial detainees as a “particularly vulnerable group”. This categorisation is due not only to issues related with communication (i.e., with the outside world, following the arrest) but also with detention facilities’ conditions, which are conducive to a deterioration in the detainee’s physical and mental health.
In fact, pre-trial detainees are even at a higher risk of becoming involved with the justice system again in the future. Additionally, financial repercussions should not be disregarded either. In fact, “pre-trial detainees are not only at risk of losing their employment at the time of detention, but also risk long-term unemployment or underemployment after release due to the stigma of detention, combined with loss of education or training opportunities”.
Besides the fact that detention increases the scope of possible breaches in a fair trial, as it also prevents individuals from preparing their defence appropriately, it is above all noteworthy that pre-trial detainees should have – first and foremost – the right to the presumption of innocence.
An exaggerated use of pre-trial detention will further undermine the rule of law “by debasing the presumption of innocence, furthering corruption, and even promoting criminality”.
Even though the judicial decision regarding the issuance of preventive detention should be based on the risk of committing future crimes, and not on an analysis of the crime in question, it is questionable whether these issues are taken under severe scrutiny considering the statistics previously put forward by this article.
Simultaneously, if pursuing a greater understanding of the presumption of innocence principle, we must also consider its purpose to be the protection of the individual against any potentially harmful consequences deriving from state actions. Therefore, it contradicts the “notion that only the court’s decision influences the consequences on the status of a guilty person”.
Seeking a comprehensive answer to structural problems: fostering judicial cooperation towards the realisation of common standards within the EU
According to Eurostat, in 2017 there were nearly 590.000 inmates incarcerated in the European Union’s (EU) penal institutions, around 22% of which are not yet serving a final sentence but instead awaiting trial.
Interestingly, even though incarceration rates in Europe continue to trend down since 2012, the percentage of pre-trial detainees increased from 17,4% in 2012 to 22,4% in 2018.
Across the European continent more than 100,000 people remand in custody while awaiting trial, regardless of the fact that there are “cheaper, less restrictive means of managing risk and ensuring attendance at trial”. Within some EU countries, Italy (34.5%), Greece (32.4%) and Sweden (27.4%) are only a few examples of a higher than average (26%) application of pre-trial detention.
The aforementioned impacts clearly emphasise the urgency for a consistent promotion of alternatives to pre-trial. In fact, the Council of the European Union Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings of 2009 mentions the importance of producing a green paper on appropriate measures to be taken by EUMSs aimed at mitigating the detrimental consequences discussed above.
In the same vein, the Council Framework Decision 2008/947/JHA, as well as the Council Framework Decision 2009/829/JHA, also contribute to the promotion of alternative measures while promoting the EU project through mutual recognition mechanisms.
Adhering to this spirit, the DETOUR project funded by the EU Justice Programme highlights 18 relevant recommendations after a comprehensive scrutiny of the legislative reality of seven EUMSs, aiming to promote the understanding of pre-trial detention as the last resource.
Amongst these recommendations, it is worth highlighting the need for further “efforts with respect to awareness-raising and training for prosecutors and judges”, besides the fact that a “continuous in-depth reflection on the interdependency between social policies, migration policies and criminal policies has to be stimulated”.
In addition, the promotion of “support by (external) social work agencies (e.g., probation services, court aid) – possibly including information on available and suitable measures supporting (conditional) release” – is of great importance, as well as an “early and active representation by defence lawyers”.
Promoting “research and the elaboration of suitable statistical information”, “developing and implementing trainings and seminars concerning the application of the European Supervision Order” and the “inclusion of an “obligatory examination […] of non-custodial measures” by decision-makers are other noteworthy proposals.
Finally, the report reiterates the importance of regularly informing the public and the media about the “rule of law and the fundamental legal principles with respect to pre-trial detention and bail”.
In this context, the European Commission, through its DG for Justice and Consumers Programme, funded PRE-TRIAD, a project aimed at pursuing the above-mentioned recommendations and furthering international standards.
PRE-TRIAD intends to build upon international recommendations and standards by analysing successful EU and non-EU approaches that are, unquestionably, best practices within the field of pre-trial detention alternatives (such as the Toronto Bail Programme as one example).
Furthermore, and adding to the recommendations that DG Justice nurtures, PRE-TRIAD focuses on improving judicial cooperation mechanisms while fostering mutual trust between EUMSs justice systems and training practitioners in the use of alternative measures.
By promoting judicial cooperation between EUMSs and raising policymakers and stakeholders’ awareness on the topic, PRE-TRIAD aims to build the groundwork for the realisation of common standards concerning fundamental rights on the practical application of pre-trial detention (and its alternative measures).
Ultimately, the project plans to foster the implementation of the Council Framework Decision 2009/829/JHA of 23 October 2009, while mitigating the adverse consequences of an exaggerated employment of pre-trial detention.
PRE-TRIAD also aims to provide a detailed account of the national and European legislation on pre-trial detention, its impacts, as well as successful alternative practices.
Moreover, it explores the underlying reasons for magistrates not being sceptical about implementing pre-trial detention alternative measures, while seeking to understand if a political and legal national framework focused on pre-trial detention as a preventive measure tends to result in higher numbers of pre-trial detainees, and also whether pre-trial detention numbers would be reduced through legislative harmonisation efforts.
Finally, the consortium aims to raise awareness among policymakers, judicial practitioners and training academies, researchers/academics and other stakeholders on the application of the Council Framework Decision 2009/829/JHA, while fostering judicial training on the topic.
The PRE-TRIAD partnership joins public and private organisations who have been selected due to their previous experience in the fields of justice, penology research, and education & training. It is composed of government bodies, research institutions, NGOs, and private companies working in the field. The consortium is represented by six EUMS that geographically represent Central (Austria, Germany), Southern (Italy, Portugal), and Eastern (Bulgaria, Romania) Europe.
 Full project name: Alternative pre-trial detention measures: Judicial awareness and cooperation towards the realisation of common standards.
 The Toronto Bail Programme is a private, non-profit, charitable organization which provides Bail Verification and Supervision services under contract to the Ministry of the Attorney General. The general purpose is to provide the Court with verified information about an accused person and provide a supervision service to accused that fit the programs criteria in order to provide the Courts with an alternative form of release.
Walmsley, R. (2018). World Prison Population List (12th Edition). London, UK: Institute for Criminal Policy Research.
Heard, C., & Fair, H. (2019). Pre-trial Detention and its Over-use: Evidence from Ten Countries. London, UK: Institute for Crime and Justice Policy Research.
Open Society Justice Institute. (2011). The Socioeconomic Impact of Pretrial Detention. New York, NY: Open Society Foundations.
Deltenre, S., & Maes, E. (2004). Pre-trial Detention and the Overcrowding of Prisons in Belgium. European Journal of Crime, Criminal Law and Criminal Justice, 12(4), 348–370.
Csete, J. (2010). Consequences of Injustice: Pre-Trial Detention and Health. International Journal of Prisoner Health, 6(1), 3-14.
Tomsini-Joshi, D., Jürgens, R., & Csete, J. (2014). Health in pre-trial detention. In S. Enggist, L. Møller, G. Gaudea, & C. Udesen (Eds.), Prisons and health (pp. 36-41). Copenhagen, DK: World Health Organization.
Digard, L., Swavola, E. (2019). Justice Denied: The Harmful and Lasting Effects of Pretrial Detention. New York, NY: Vera Institute of Justice.
Duff, R. (2013). Pre-Trial Detention and the Presumption of Innocence. In A. Asworth, L. Zedner, & P. Tomlin (Eds.), Prevention and the Limits of the Criminal Law (pp. 115-132). Oxford, UK: Oxford University Press.
De Jong, F., & van Lent, L. (2016). The Presumption of Innocence as a Counterfactual Principle. Utrecht Law Review, 12(1), 32-49.
Ec.europa.eu.(2020). Prison statistics – Statistics Explained. [online] Available at: https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Prison_statistics [Accessed 6 Mar. 2019].
McVeigh, L., Shaeffer, R., & Hartshorn, J. (2016, May). A Measure of Last Resort? The practice of pre-trial detention decision making in the EU. Fair Trials International. https://www.fairtrials.org/sites/default/files/publication_pdf/A-Measure-of-Last-Resort-Full-Version.pdf.
Aebi, M. F., & Tiago, M. M. (2018). SPACE I – 2018 – Council of Europe Annual Penal Statistics: prison populations. Strasbourg, FR: Council of Europe.
Justicia – European Rights Network. (2019, July). Pre-trial detention: It’s time for EU action to end excessive use. Fair Trials International.
Detour Consortium. (2017, December). Recommendations. Institute for the Sociology of Law and Criminology. https://www.irks.at/detour/Uploads/Recommendations%20fin%20for%20pub.pdf
Pedro Liberado is a consultant, researcher and project manager at IPS. He holds a BA in Sociology (University of Coimbra) and an MSc in Criminology (University of Porto), being a former researcher at the University of Tampere and University of Lisbon. At IPS, as the head of the radicalisation and violent extremism portfolio, Pedro designs and develops several projects focused on this topic, as well as in the fields of international judicial cooperation and criminal justice staff training. He also co-organises and conducts (inter)national training courses, seminars and events.
Joana Apóstolo is a junior consultant and researcher at IPS. She obtained a binational master’s degree in International Relations and Political Science (University of Coimbra and SciencesPo Bordeaux), being a former intern at the Portuguese Permanent Representation to the European Union. At IPS, Joana is currently involved in the research team focused on international judicial cooperation, besides contributing to project implementation in the field of criminal justice staff training, and project design in the area of radicalisation and violent extremism.