GREEN PAPER Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention
Date: 2011-06-14
Institutions: European Commission
Subjects: European arrest warrant, alternative sentence, arrest, criminal responsibility of minors, imprisonment, penal institution, prisoner, surveillance

EUROPEAN COMMISSION 

Brussels, 14.6.2011 
COM(2011) 327 final 

GREEN PAPER 

Strengthening mutual trust in the European judicial area – A Green Paper on the 
application of EU criminal justice legislation in the field of detention  

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TABLE OF CONTENTS 

1. 

2. 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

3.5. 

4. 

4.1. 

4.2. 

5. 

6. 

6.1. 

6.2. 

6.3. 

7. 

Purpose......................................................................................................................... 2 

What is the EU's interest in this area?.......................................................................... 3 

The relationship between mutual recognition instruments and detention.................... 4 

The European Arrest Warrant (EAW) ......................................................................... 4 

The Transfer of Prisoners............................................................................................. 5 

Probation and Alternative Sanctions............................................................................ 6 

European Supervision Order (ESO)............................................................................. 7 

Implementation ............................................................................................................ 8 

The issue of pre-trial detention .................................................................................... 8 

Length of pre-trial detention ........................................................................................ 9 

Regular review of the grounds for pre-trial detention/statutory maximum periods..... 9 

Children...................................................................................................................... 10 

Improving detention conditions ................................................................................. 11 

Current activities related to detention at EU level ..................................................... 11 

Monitoring of detention conditions by the Member States........................................ 11 

European Prison Rules ............................................................................................... 12 

Public Consultation .................................................................................................... 12 

ANNEXES ............................................................................................................................... 14 

Table 1: Prison population in the European Union 2009-2010................................................ 14 

Table 2: Current support activities at EU level ........................................................................ 17 

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1. 

PURPOSE  

The  Commission  wishes  to  explore  the  extent  to  which  detention  issues1  impact  on  mutual 
trust,  and  consequently  on  mutual  recognition  and  judicial  cooperation  generally  within  the 
European Union. Whilst detention conditions and prison management are the responsibility of 
Member States, the Commission is interested in this issue because of the central importance 
of the principle of mutual recognition of judicial decisions for the area of freedom, security 
and justice. 

For mutual recognition to operate effectively there must be a common basis of trust between 
judicial  authorities.  Member  States  need  to  have  better  knowledge  of  each  other's  criminal 
justice systems.  

In  its  Resolution  on  a  Roadmap  for  strengthening  procedural  rights  of  suspected  persons  in 
criminal proceedings2, the Council states that "The time that a person can spend in detention 
before being tried in court and during the court proceedings varies a lot between the Member 
States. Excessively long periods of pre-trial detention are detrimental for the individual, can 
prejudice the judicial cooperation between the Member States and do not represent the values 
for which the European Union stands".  

The  Council invited  the  Commission  to  present  a  Green Paper  on  pre-trial  detention.  This 
Paper – which is part of the procedural rights package – is the Commission's response to the 
Council's request.  

The  Green  Paper  covers  the  interplay  between  detention  conditions and  mutual  recognition 
instruments such as the European Arrest Warrant as well as pre-trial detention, and opens up a 
wide public consultation based on ten questions set out in the Paper.  

The  Stockholm  Programme3  encourages  the  Commission  to  reflect  about  detention  and  related  issues:  "The 
European  Council  considers  that  efforts  should  be  undertaken  to  strengthen  mutual  trust  and  render  more 
efficient  the  principle  of  mutual  recognition  in  the  area  of  detention.  Efforts  to  promote  the  exchange  of  best 
practices  should  be  pursued  and  implementation  of  the  European  Prison  Rules,  approved  by  the  Council  of 
Europe, supported. Issues such as alternatives to imprisonment, pilot projects on detention and best practices in 
prison management could also be addressed. The European Commission is invited to reflect on this issue further 
within the possibilities offered by the Lisbon Treaty." 

The European Parliament has for several years urged the Commission to take action on various issues in the area 
of detention. In its Resolution on the Stockholm Programme4, the European Parliament calls for the construction 
of an EU criminal justice area to be developed through, inter alia minimum standards for prison and detention 
conditions  and  a  common  set  of  prisoners'  rights  in  the  EU.  This  is  reiterated  in  the  European  Parliament's 
February  2011  Written  Declaration  on  infringement  of  the  fundamental  rights  of  detainees  in  the  European 
Union5. 

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4 

5 

Detention here is understood to mean detention in accordance with Article 5(1)(a), (b) and (c) ECHR 
following a criminal offence and not for other purpose (for example detention of migrants). 
Resolution  on  a  Roadmap  for  strengthening  procedural  rights  of  suspected  or  accused  persons  in 
criminal proceedings (OJ C 295, 4.12.2010, p. 1). 
OJ C 115, 4.4.2010, p. 1. 
European Parliament resolution of 25 November 2009 on the Communication from the Commission –
An  area  of  freedom,  security  and 
the  citizen  –  Stockholm  programme, 
justice  serving 
P7_TA(2009)0090. 
Written  Declaration  on  infringement  of  the  fundamental  rights  of  detainees,  from  MEPs  -  06/2011, 
14.02.2011. 

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2. 

WHAT IS THE EU'S INTEREST IN THIS AREA? 

Detention  issues,  whether  they  relate  to  pre-trial  detainees  or  convicted  persons,  are  the 
responsibility of Member States. There are, however, reasons for the European Union to look 
into these issues, notwithstanding the principle of subsidiarity. 

Detention issues come within the purview of the European Union as first they are a relevant 
aspect of the rights that must be safeguarded in order to promote mutual trust and ensure the 
smooth functioning of mutual recognition instruments, and second, the European Union has 
certain values to uphold.  

To  promote  mutual  trust,  the  Commission's  priorities  in  the  area  of  criminal  justice  are  to 
strengthen  procedural  rights  by  way  of  minimum  rules  for  suspects  or  accused  persons  in 
criminal  proceedings.  A  minimum  standard  of  protection  for  individual  rights  will  not  only 
benefit  individuals  across  the  Union  but  also  promote  the  mutual  trust  that  is  the  necessary 
counterbalance  to  judicial  co-operation  measures  that  enhance  the  powers  of  prosecutors, 
courts and investigating officers.  

To this end, the Commission has designed a package of measures on the procedural rights of 
suspected  and  accused  persons6  that  will  assist  in  achieving  the  necessary  mutual  trust 
between  judicial  practitioners,  whilst  taking  into  account  the  differences  between  the  legal 
traditions and systems of the Member States.  

The Commission has already highlighted that respect for fundamental rights within the EU is 
vital  to  help  build  mutual  trust  between  the  Member  States.  A  lack  of  confidence  in  the 
effectiveness  of  fundamental  rights  in  the  Member  States  when  they  implement  Union  law 
would  hinder  the  operation  and  strengthening  of  cooperation  instruments  in  the  area  of 
freedom, security and justice7. 

The Charter of Fundamental Rights of the European Union (EU Charter) sets a standard with 
which all EU Member States must comply when implementing EU law. The European Court 
of Human Rights (ECtHR) has ruled that unacceptable detention conditions can constitute a 
violation of Article 3 of the European Convention on Human Rights (ECHR). Article 4 of the 
EU  Charter  is  worded  identically  to  Article  3  of  the  ECHR,  these  two  provisions  have  the 
same  scope  and  meaning.  Article  19(2)  of  the  EU  Charter  also  states  that  no  one  may  be 
handed  over  to  a  State  where  there  is  a  serious  risk  that  the  person  concerned  would  be 
subjected in particular to inhuman or degrading treatment. 

Despite  the  fact  that  the  law  and  criminal  procedures  of  all  Member  States  are  subject  to 
ECHR standards and must comply with the EU Charter when applying EU Law, there are still 
doubts about the way in which standards are upheld across the EU.  

6 

7 

The  proposals  will  cover  the  right  to  interpretation  and  translation  in  criminal  proceedings  (Directive 
2010/64/EU  adopted  in  October  2010),  the  right  to  information  in  criminal  proceedings,  access  to  a 
lawyer,  the  right  to  communicate  while  in  detention,  protection  for  vulnerable  suspects  and  accused 
person and access to legal aid. 
"Strategy  for  the  effective  implementation  of  the  Charter  of  Fundamental  Rights  by  the  European 
Union" - COM(2010) 573. 

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3. 

THE  RELATIONSHIP  BETWEEN  MUTUAL  RECOGNITION 
DETENTION 

INSTRUMENTS  AND 

Detention conditions can have a direct impact on the smooth functioning of the principle of 
mutual recognition of judicial decisions. Pre-trial detainees and convicted prisoners alike are 
entitled to a reasonable standard of detention conditions. Prison overcrowding and allegations 
of poor treatment of detainees may undermine the trust that is necessary to underpin judicial 
cooperation within the European Union.  

The principle of mutual recognition rests on the idea of mutual trust between Member States. 
Judicial  decisions  are  to  be  recognised  as  equivalent  and  executed  throughout  the  Union 
regardless  of  where  the  decision  was  taken.  This  is  based  on  the  presumption  that  criminal 
justice  systems  within  the  European  Union,  whilst  not  the  same,  are  at  least  equivalent. 
Judicial decisions are usually executed by judges in the executing state. Those judges need to 
be  satisfied  that  the  initial  decision  was  taken  fairly  (i.e.  that  the  person's  rights  were  not 
violated when the decision was taken) and that the person's rights will be respected fully when 
returned to another Member State.  

Without  mutual  confidence  in  the  area  of  detention,  European  Union  mutual  recognition 
instruments that have a bearing on detention will not work properly, because a Member State 
might  be  reluctant  to  recognise  and  enforce  the  decision  taken  by  another  Member  State's 
authorities. It could be difficult to develop closer judicial cooperation between Member States 
unless further efforts are made to improve detention conditions and to promote alternatives to 
custody. 

A number of mutual recognition instruments are potentially affected by the issue of detention 
conditions:  The  instruments  in  question  are  the  Council  Framework  Decisions  on  the 
European Arrest Warrant, the transfer of prisoners, mutual recognition of alternative sanctions 
and probation and the European Supervision Order. 

3.1. 

The European Arrest Warrant (EAW)8 

The EAW requires the surrender between Member States of persons wanted both for trial and 
to  serve  sentences  in  respect  of  convictions  and  is  therefore  relevant  for  both  pre-trial  and 
post-trial detention.  

While  the  EAW  has  proved  to  be  a  very  useful  tool  to  ensure  that  criminals  cannot  use 
borders to evade justice, particularly in relation to serious and organised crime with a cross-
border dimension, its implementation, including the core principle of mutual recognition  on 
which it is based, must respect fundamental rights. Article 1(3) EAW provides that Member 
States must respect fundamental rights and fundamental legal principles, including Article 4 
of the EU Charter and Article 3 ECHR and does not oblige judicial authorities to surrender a 
person where  they are satisfied, while taking into account all the circumstances  of  the  case, 
that such surrender would result in a breach of the person's fundamental rights arising from 
unacceptable detention conditions.  

However, treatment of detainees subject to an EAW must reach a minimum level of severity 
to fall within the scope  of Article 4 of the EU  Charter  and  Article  3  ECHR.  The  latter  was 

8 

Council Framework Decision of 13 June 2002 (OJ L 190, 18.7.2002, p. 1). 

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recently  invoked in an EAW proceeding where surrender was contested on the grounds that 
detention conditions in the issuing State were allegedly inadequate (see box below).  

Example: In a recent judgment, The Minister for Justice Equality and Law Reform v Robert Rettinger, 23 July 
2010, the Irish Supreme Court overturned on appeal a decision by the Irish High Court to surrender a suspected 
person subject to a European Arrest Warrant to an issuing State. The Supreme Court referred the matter to the 
High Court to be reconsidered taking into account all the material before it in a rigorous examination to establish 
whether  there  was  a  real  risk  of  a  surrendered  person  being  subject  to  treatment  contrary  to  Article  3  of  the 
ECHR.  In  its  decision  the  Irish  Supreme  Court  referred  to  a  number  of  European  Court  of  Human  Rights 
(ECtHR)  cases  on  detention  conditions  where  the  ECtHR  concluded  that  complainants  have  been  detained  in 
conditions that were inhuman and degrading. 

In  this  casesurrender  was  therefore    contested  on  grounds  related  to  detention  issues.  as 
conditions in the issuing State were   perceived as not being  in conformity with EU Charter 
and ECHR standards. .  

The problems arise at both the pre- and post-trial stages9. A judicial authority may find such a 
detention-related argument compelling in a particular case and refuse surrender. Even where 
refusal is not the outcome, the "high level of confidence between Member States" (cited as the 
basis of the EAW system in recital 10 of the Framework Decision) is eroded where judicial 
authorities  must  repeatedly  weigh  this  confidence  against  acknowledged  detention-related 
deficiencies. 

Given  the  right  to  an  expeditious  trial  enshrined  in  Article  6(1)  ECHR,  where  pre-trial 
detention periods are excessively long, Member States executing EAWs may object to the use 
of an instrument designed for the rapid surrender of persons to face trial if those persons then 
risk spending months awaiting trial in a foreign prison when they could have remained in their 
home environment until the authorities in the issuing State were ready for trial. 

3.2. 

The Transfer of Prisoners 

Council Framework Decision 2008/909/JHA of 27 November 200810 on the application of the 
principle  of  mutual  recognition  to  judgments  imposing  custodial  sentences  or  measures 
involving  deprivation  of  liberty  is  to  be  implemented  by  5  December  2011.  It  establishes  a 
system  for  transferring  convicted  prisoners  back  to  the  Member  State  of  nationality  or 
habitual  residence  (or  to  a  Member  State  with  which  they  have  close  ties).  Article  3(4) 
provides  that  Member  States  must  respect  fundamental  rights  and  fundamental  legal 
principles. It should facilitate the social rehabilitation of the sentenced person by ensuring that 
they serve their sentence in their home country.  

Example:  Peter  is  a  national  of  Member  State  A.  He  is  convicted  of  an  offence  in  Member  State  B  where  he 
habitually  lives  and  sentenced  to  2  years  in  prison.  The  authorities  of  Member  State  B  may  return  him  to 
Member State A to serve the sentence without seeking his consent. 

Perceived  poor  detention  conditions,  or  conditions  that  risk  falling  below  the  minimum 
standards required by the Council of Europe European Prison Rules, could be an impediment 
to the transfer of prisoners. Convicted persons who do not wish to be transferred could seek to 
argue that the transfer could risk subjecting them to inhuman or degrading treatment.  

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10 

See report from the Commission on the implementation of the EAW - COM(2011) 175, 11.4.2011. 
Council Framework Decision 2008/909/JHA of 27 November 2008 (OJ L 327, 5.12.2008, p. 27). 

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The Framework Decision removes the requirement that the sentenced person must consent to 
transfer. This means that even greater attention must be paid to the possible infringement of 
fundamental  rights  post-transfer.  Greater  access  to  information  on  prison  conditions  and 
criminal justice systems in other States will enable issuing States to take all relevant factors 
into account before initiating transfer.  

There is a risk that transfers may be used to ease overcrowding in one Member State, possibly 
exacerbating overcrowding in another. This could be a particular problem where one Member 
State has a high proportion of prisoners who are nationals of another, perhaps neighbouring, 
Member State. 

The diversity between Member States’ laws on the enforcement of custodial sentences poses 
potential  problems  for  the  successful  operation  of  the  Framework  Decision.  If  someone  is 
sentenced in one Member State to a term of imprisonment that will be served in another, it is 
relevant  for  the  person  to  know  how  much  of  that  sentence  he  will  actually  have  to  serve. 
Member  States  have  different  rules  regarding  conditional  or  early  release11,  and  this  could 
become  an  obstacle  to  transfers  if  the  person  concerned  were  to  end  up  serving  a  longer 
sentence in the Member State to which they are transferred than they would serve in the one 
in which they were sentenced. There is a risk that the executing (administering) State has a 
less generous system of early release than the issuing (sentencing) State. The ECtHR held12 
that,  where  this  was  the  case,  it  did  not  "exclude  the  possibility  that  a  flagrantly  longer  de 
facto term of imprisonment in the administering (executing) State could give rise to an issue 
under Article 5 ECHR (right to liberty and security), and hence engage the responsibility of 
the sentencing (issuing) State under that Article"13.  

3.3. 

Probation and Alternative Sanctions 

Council Framework Decision 2008/947/JHA of 27 November 200814 on the application of the 
principle  of  mutual  recognition  of  probation  decisions  and  alternative  sanctions  is  to  be 
implemented by 6 December 2011.  

The  Framework  Decision  relates  to  the  post-trial  stage.  It  applies  the  principle  of  mutual 
recognition  to  many  of  the  alternatives  to  custody  and  measures  facilitating  early  release. 
Article  1(4)  provides  that  Member  States  must  respect  fundamental  rights  and  fundamental 
legal principles. The probation decision or other alternative sanction would be executed in a 
Member State other than the one in which the person was sentenced, and can be executed in 
any Member State as long as the person concerned has consented. 

11 

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14 

Some Member States have provisions for automatic early release of prisoners, some have discretionary 
mechanisms  and others  combine both discretionary  and automatic  provisions. Variations  also  exist  in 
the monitoring arrangements for offenders released early from prison and the ability (or otherwise) of 
prisoners to earn remission from their sentence as a result of work carried out whilst in prison. There 
are also variations between Member States with regard to the manner in which custodial sentences can 
be served. Some States make provision for prisoners to serve a custodial sentence during the weekend 
or  evening,  whilst  others  make  provision  for  daytime  detention.  In  contrast,  these  types  of  sentence 
execution  are  not  available  at  all  in  a  number  of  Member  States  which  rely  instead  on  the  use  of 
imprisonment in its more “traditional” sense. 
Final decision as to the admissibility of application no. 28578/03 by Szabó v Sweden, 27  June 2006. 
See  Dirk  van  Zyl  Smit  and  Sonja  Snacken,  Principles  of  European  Prison  Law  and  Policy.  Penology 
and Human Rights, OUP, 2009, Chapter 8, Release. 
Council Framework Decision 2008/947/JHA of 27 November 2008 (OJ L 337, 16.12.2008, p. 102). 

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Example: Anna is a national of Member State A but is on holiday in Member State B. She is convicted of an 
offence in Member State B and sentenced to carry out community service in lieu of a custodial sentence. She can 
return  to  her  home  Member  State  and  the  authorities  of  that  Member  State  are  obliged  to  recognise  the 
community sentence and to supervise Anna's execution of it. 

The  Framework  Decision  applies  the  principle  of  mutual  recognition  to  many  of  these 
alternatives  to  custody  and  measures  facilitating  early  release.  Its  correct  application  would 
imply that probation measures and alternatives to imprisonment would be available in all legal 
systems across the Union. These measures may then have to be promoted at Union level for a 
proper and efficient application of the rules by Member States. 

3.4. 

European Supervision Order (ESO) 

Council Framework Decision 2009/829/JHA of 23 October 200915 on the application of the 
principle  of  mutual  recognition  to  decisions  on  supervision  measures  as  an  alternative  to 
provisional  detention  is  to  be  implemented  by  1  December  2012.  Article  5  provides  that 
Member States must respect fundamental rights and fundamental legal principles. 

The  ESO  concerns  provisional  release  in  the  pre-trial  stage.  It  will  enable  a  non-custodial 
supervision  measure  to  be  transferred  from  the  Member  State  where  the  non-resident  is 
suspected of having committed an offence to the Member State where he is normally resident. 
This  will  allow  a  suspected  person  to  be  subject  to  a  supervision  measure  in  his  home 
Member State until the trial takes place in the foreign Member State, and thus provides a way 
to reduce pre-trial detention of non-resident European Union citizens in the future. 

Example: Hans, who is a resident of Member State A is arrested and charged with an offence in Member State B. 
His  trial  will  not  start  for  6  months.  If  he  was  a  resident  of  Member  State  A,  the  judge  would  be  inclined  to 
release him on bail, with a condition of reporting to the police station, but the judge is reluctant to do so because 
Hans lives in another Member State and will return there pending trial. The judge fears that Hans will not return 
and may even flee. Under the ESO, the judge can allow Hans to return home imposing a reporting condition, and 
can  ask  the  authorities  in  Member  State  A  to  ensure  that Hans does  report  to  the  police  station  in  accordance 
with the order of the court in Member State B. 

The ESO provides for several alternative types of supervision to be applied instead of pre-trial 
detention,  such  as  an  obligation  for  the  person  to  inform  the  competent  authority  in  the 
executing State of any change of residence for the purpose of receiving a summons to attend a 
hearing  or  a  trial  in  the  course  of  criminal  proceedings;  an  obligation  not  to  enter  certain 
localities in the issuing or executing State; an obligation to remain at a specified place, during 
specified  times;  a  limitation  on  leaving  the  territory  of  the  executing  State;  an  obligation  to 
report  at  specified  times  to  a  specific  authority,  an  obligation  to  deposit  a  certain  sum  of 
money  or  to  give  another  type  of  guarantee  or  an  obligation  to  undergo  treatment  for 
addiction.  

The ESO system is discretionary for the issuing Member State, which makes it hard to predict 
how national courts will apply it and how it will interact with the EAW. Questions also arise 
as to how frequently the ESO will be used.  

Mutual  trust  is  central  to  the  ESO’s  successful  operation.  However,  there  is  a  risk  that  the 
instrument  will  not  be  used  uniformly  across  all  Member  States,  but  only  between  those 
countries where mutual trust exists.  

15 

Council Framework Decision 2009/829/JHA of 23 October 2009 (OJ L 294, 11.11.2009 p. 20). 

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The  use  of  alternative  measures  to  pre-trial  detention  could  be  encouraged.  With  the 
application of the ESO, the use of alternative measures such as, for example, surveillance via 
electronic devices should be promoted for a proper and efficient application of the ESO rules 
by Member States and to reduce pre-trial detention.  

3.5. 

Implementation  

The question whether detention conditions are such as to enable mutual trust to take root so 
that  there  is  no  impediment  to  the  application  of  mutual  recognition  instruments  across  the 
Union should be addressed before the Framework Decisions are to be transposed (in 2011 and 
2012 respectively).  

It is important that Member States transpose them into their national legislation promptly and 
apply  them  correctly.  The  Commission  is  available  to  give  Member  States  assistance  and 
guidance  on  good  practice  and  will  continue  its  regional  implementation  workshops  from 
2010, as these were considered an important aspect of the implementation process.  

QUESTIONS ON MUTUAL RECOGNITION INSTRUMENTS 

1)  Pre-trial:  What  non-custodial  alternatives  to  pre-trial  detention  are  available?  Do  they 
work? Could alternatives to pre-trial detention be promoted at European Union level? If yes, 
how? 

2)  Post  trial:  What  are  the  most  important  alternative  measures  to  custody  (such  as 
community service or probation) in your legal system? Do they work? Could probation and 
other alternative measures to detention be promoted at European Union level? If yes, how? 

3) How do you think that detention conditions may have an effect on the proper operation of 
the EAW? And what about the operation of the Transfer of Prisoners Framework Decision?  

4. 

THE ISSUE OF PRE-TRIAL DETENTION  

Detention may only be ordered when it complies with the duty to respect the right to liberty 
(Article  5(1)  ECHR)  which  is  closely  linked  to  the  presumption  of  innocence.16  The  EU 
Charter,  Article  48(1),  provides  that  “[e]veryone  charged  with  a  criminal  offence  shall  be 
presumed innocent until proved guilty according to law”. Article 6(2) ECHR and the ICCPR17 
also have provisions on the presumption of innocence18. Pre-trial detention in the context of 
this Green Paper covers the period until the sentence is final19. Pre-trial detention is a measure 
of an exceptional nature in all Member States' judicial systems. It is to be applied only when 
all other measures are judged to be insufficient. In some European systems pre-trial detention 
is  even  set  by  a  constitutional  norm  revealing  a  bias  in  favour  of  liberty  in  line  with  the 
presumption  of  innocence.  This  limits  the  circumstances  under  which  pre-trial  detention  is 
authorised and establishes specific criteria and procedures for its use. For example, it should 
only apply after the court determines that defendants pose a substantial risk of flight, a threat 
to the safety of the community, victims or witnesses, or a risk of hindering investigations. The 

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19 

See Commission Green Paper on the presumption of innocence - COM(2006) 174, 26.4.2006. 
International Covenant on Civil and Political Rights. 
Article 48(1) of the Charter, Article 14(2) of the ICCPR. 
Likewise  in  most  EU  Member  States,  the  notion  "pre-trial  detention"  in  the  Green Paper  is  used  in  a 
'broad' sense and includes all prisoners who have not been finally judged.  

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status of detained defendants should, however, be monitored in all cases and their eligibility 
for  release  reviewed  throughout  the  adjudication  period.  The  cases  of  detained  defendants 
should  be  given  priority  in  scheduling  for  trial.  The  proportionality  principle  in  criminal 
matters  requires  that  coercive  measures,  such  as  pre-trial  detention  or  alternatives  to  such 
detention, are only used when this is absolutely necessary and only for as long as required. It 
falls to the national judicial authorities to ensure that, in a given case, the pre-trial detention of 
an accused person does not exceed a reasonable time and complies with the principle of the 
presumption  of  innocence  and  the  right  to  liberty  whilst  meeting  the  necessities  of  the 
investigation of criminal offenses.  

4.1. 

Length of pre-trial detention 

The  time  a  person  spends  in  pre-trial  detention  varies  widely  from  one  Member  State  to 
another.  ECtHR  case  law  establishes  that  pre-trial  detention  must  be  regarded  as  an 
exceptional measure and the widest possible use should be made of non-custodial supervision 
measures.  In  practice,  however,  non-nationals  are  often  at  a  disadvantage  in  obtaining  bail 
because they are seen as a greater flight risk than national defendants. The result is that other 
defendants  are  regularly  denied  release,  and  consequently  their  right  to  liberty,  simply 
because they have fewer ties with the jurisdiction. 

Some countries have no legal maximum length of pre-trial detention. In some, a person can be 
held in pre-trial detention for up to 4 years20. Excessively long periods of pre-trial detention 
are  detrimental  for  the  individual,  and  a  pattern  of  excessively  long  pre-trial  detention  in  a 
particular Member State can undermine mutual trust. 

A judicial authority must apply the most lenient coercive measure appropriate, i.e. choose an 
alternative  measure  to  pre-trial  detention,  if  this  is  sufficient  to  eliminate  the  risks  of 
absconding  or  reoffending.  These  authorities  can  issue  a  EAW  to  ensure  the  return  of 
someone  wanted  for  trial  who  has  been  released  and  allowed  to  return  to  his  home  State 
instead of placing him in pre-trial detention. This possibility could enable judges  to make a 
more  balanced  use  of  pre-trial  detention  to  release  persons  accused  of  committing  offences 
not permanently resident in their jurisdiction and thus reduce periods of pre-trial detention 

Finally, Article 47 of the EU Charter and the ECHR21 provide that everyone shall be entitled 
to trial within a reasonable time or to release pending trial, and that release may be subject to 
guarantees to appear for trial.  

4.2. 

Regular  review  of  the  grounds  for  pre-trial  detention/statutory  maximum 
periods 

The  question  arises  whether  minimum  standards  in  respect  of  provisions  on  review  of  the 
grounds  of  pre-trial  detention  and/or  statutory  maximum  time  limits  on  pre-trial  detention 
would enhance mutual confidence between Member States. 

The right to an expeditious trial and to pre-trial release (unless there are overriding reasons for 
keeping the individual in pre-trial custody) is an important right. Some Member States have 

20 

21 

See Study on "Pre-trial detention in the European Union, An Analysis of Minimum Standards in Pre-
trial Detention and the Grounds for Regular Review in the Member States of the EU” carried out by the 
Universities of Tilburg, NL, and Greifswald, DE. 
Article 5(3) ECHR. 

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statutory  maximum  time  limits  for  pre-trial  detention.  There  is  a  requirement  for  judicial 
review of pre-trial detention under Article 5 ECHR, and this is to be interpreted as a recurring 
obligation for authorities in charge of investigation and prosecution to justify the extension of 
the suspect's pre-trial detention regularly.  

Council of Europe Recommendation 2006-1322 on remands in custody lays down conditions 
for  remands  in  custody  and  safeguards  against  abuse.  It  recommends  measures  for  periodic 
review, by a judicial authority, of the justification for remanding someone in custody. 

The  Commission  wants  to  assess  whether  legally  binding  rules,  for  instance  EU  minimum 
rules on regular review of the grounds for detention, would improve mutual confidence. 

QUESTIONS ON PRE-TRIAL DETENTION 

4)  There is an obligation to release an accused person unless there are overriding reasons for 
keeping them in custody. How is this principle applied in your legal system?  

5) Different  practices  between  Member  States  in  relation  to  rules  on  (a)  statutory  maximum 
length of pre-trial detention and (b) regularity of review of pre-trial detention may constitute 
an obstacle to mutual confidence. What is your view? What is the best way to reduce pre-trial 
detention?  

6)  Courts  can  issue  a  EAW  to  ensure  the  return  of  someone  wanted  for  trial  who  has  been 
released and allowed to return to his home State instead of placing him in pre-trial detention. 
Is this possibility already used by judges, and if so, how? 

7) Would  there  be  merit  in  having  European  Union  minimum  rules  for  maximum  pre-trial 
detention periods and the regular review of such detention in order to strengthen mutual trust? 
If  so,  how  could  this  be  better  achieved?  What  other  measures  would  reduce  pre-trial 
detention? 

5. 

CHILDREN  

Children are in a particularly vulnerable position in relation to pre-trial detention. Deprivation 
of  liberty  has  very  negative  consequences  for  the  child’s  harmonious  development  and 
seriously hampers their reintegration in society. A recent study23 reveals differences regarding 
the  way  in  which  children  are  treated  in  the  different  legal  systems.  Within  the  EU,  the 
minimum  age  of  criminal  responsibility  varies  from  8  years  in  Scotland  to  16  years  in 
Portugal. Generally, Member States have special regulations for juveniles. 

A number of measures have been taken at international level to protect the rights of children 
in criminal proceedings, including as regards detention. Article 37 of the UN Convention on 
the  Rights  of  the  Child  provides  that  arrest  and detention  of  a  child  shall  be  used  only  as  a 
measure of last resort and for the shortest appropriate period of time. Children shall be treated 
in  a  manner  that  takes  into  account  the  needs  of  persons  of  their  age,  including  being  kept 
separate  from  adults  and  have  the  right  to  maintain  contact  with  their  families.  Every  child 

22 
23 

Adopted by the Committee of Ministers of the Council of Europe on 27 September 2006. 
Document,  Strasbourg  6  June  2006,  PC-CP  (2006)  09,  "Youth  custody  and  the  balance  between 
education and punishment – an international comparison of developments and prospects". 

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deprived of their liberty shall have the right to prompt access to legal and other appropriate 
assistance, as well as the right to challenge the legality of the deprivation of liberty before a 
court or other competent authority.  

QUESTION ON CHILDREN 

Are  there  any  specific  alternative  measures  to  detention  that  could  be  developed  in 

8) 
respect of children? 

6. 

DETENTION CONDITIONS  

A number of judgments from the ECtHR have highlighted deficiencies in some prisons within 
the EU24. The Stockholm Programme states that "[..] Efforts to promote the exchange of best 
practice  should  be  pursued  and  the  implementation  of  the  Council  of  Europe's  European 
Prison  Rules  supported.  Issues  such  as  alternatives  to  imprisonment,  pilot  projects  on 
detention and best practices in prison management could also be addressed".  

6.1. 

Current activities related to detention at EU level 

The  Commission  supports  a  number  of  prison  related  activities  via  different  financial 
programmes25.  Activities  range  from  studies  on  prison  conditions  to  practical  projects  on 
education and training, and social inclusion, as well as on the re-integration of ex-offenders.  

6.2.  Monitoring of detention conditions by the Member States 

Good detention conditions are a prerequisite to the rehabilitation of offenders. Several reports 
on the detention conditions in EU prisons reveal that some fall below international standards, 
including the Council of Europe European Prison Rules and the UN Standard Minimum Rules 
for the Treatment of Prisoners26. 

Prison  standards  in  Europe  are  mainly  developed  by  the  Council  of  Europe,  including  the 
ECtHR, the CPT  and  the  Committee  of Ministers. The standards contained in the European 
Prison Rules, whilst non-binding, have largely been endorsed. 

The  2006  Optional  Protocol  to  the  United  Nations  Convention  against  Torture  (OPCAT), 
created  a  new  system  of  regular  visits  to  places  of  detention  to  prevent  ill-treatment  of 
detainees. At the national level, States Parties to OPCAT27 must set up or designate National 
Preventive Mechanisms (NPMs) to carry out the monitoring of prisons.  

The EU and the Council of Europe jointly fund a project promoting the establishment of an 
active  network  of  National  Preventive  Mechanisms  in  Europe  to  foster  peer  exchange  and 
critical reflection.  

24 

25 
26 

27 

See,  inter alia,  the  judgments  in  the  cases Peers  v. Greece  (19 April  2001),  Salejmanovic  v  Italy  (16 
July 2009), Orchowski v Poland (22 January 2010). 
See Table 2.  
Recommendation  of  the  Council  of  Europe  (2006)2  on  the  European  Prison  Rules  and  the  United 
Nations Standard Minimum Rules for the Treatment of Prisoners (1995). 
The following Member States have ratified OPCAT as of 2 February 2011: CY, CZ, DK, EE, FR, DE, 
LU, MT, NL, PL, RO, SI, ES, SE and UK. The following Member States have signed OPCAT: AT, BE, 
BG, FI, IE, IT and PT.  

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The question of how better to coordinate the work of these monitoring bodies so as to avoid 
duplication  and  to  foster  synergies  is  regularly  discussed  between  the  Commission  and  the 
Council  of  Europe.  The  National  Preventive  Mechanisms  consider  that  it  is  important  for 
them to meet regularly within an informal network to discuss detention matters and exchange 
best practice in this field. It would also be worth encouraging the administrators of prisons in 
the  European  Union  to  meet  regularly.  However,  it  is  clear  that  there  is  no  need  for  the 
creation  of  an  additional  European  Union  network  of  monitoring  of  prisons.  In  the  two 
roundtables organised to bring together national monitoring bodies and administrators, it was 
felt  that  the  EU  added  value  would  be  in  promoting  better  coordination  of  the  different 
networks. 

QUESTION ON MONITORING OF DETENTION CONDITIONS 

9) 
How  could  monitoring  of  detention  conditions  by  the  Member  States  be  better 
promoted? How could the EU encourage prison administrations to network and establish best 
practice?  

6.3. 

European Prison Rules 

The  European  Prison  Rules,  adopted  by  the  Council  of  Europe  in  January  2006,  contain 
comprehensive guidance on the running of prisons and the treatment of prisoners. They aim to 
protect  prisoners’  fundamental  rights  in  a  manner  that  is  consistent  with  the  legitimate 
purpose of their  detention and to provide  that conditions should facilitate reintegration after 
release from prison.  

The  European  Prison  Rules  are  not  binding,  although  the  ECtHR  has  used  them  as  a  basis 
when  assessing  complaints  about  prison  conditions.  ECtHR  case-law  seeks  to  correct 
excessively  poor  prison  conditions  in  individual  cases,  but  cannot  achieve  uniform 
compliance in all Member States. 

Given  its  substantial  experience  and  work  in  this  area,  the  Council  of  Europe  has  a  leading 
role.  Future  European  Union  action  in  this  field  could  play  a  part  in  ensuring  equivalent 
prison  standards  for  the  proper  operation  of  the  mutual  recognition  instruments  set  out  in 
section 3.  

QUESTION ON DETENTION STANDARDS 

10)  How could the work of the Council of Europe and and that of Member States be better 
promoted as they endeavour to put good detention standards into practice? 

7. 

PUBLIC CONSULTATION  

The Commission hopes that this Green Paper reaches a wide audience and stimulates interest 
in  many  quarters.  The  paper  contains  10  questions,  and  the  Commission  is  interested  in 
receiving feedback, comments and replies from practitioners, such as judges, prosecutors and 
lawyers  and  other  legal  practitioners,  directors  of  prison  administrations,  people  working  in 
the  social  and  probation  services,  pre-trial  detention  centres  and  prisons,  academic  circles, 
relevant NGOs and government bodies.  

Responses should be sent, by 30 November 2011, to: 

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European Commission 
Directorate-General Justice  
Unit B1 – Procedural Criminal Law 
MO59 03/068 
B-1049 Brussels 
Belgium 

or by email to: 

JUST-CRIMINAL-JUSTICE@ec.europa.eu 

Privacy statement 

Purpose and scope of personal data processing: 

The Commission will record and further process your personal details to the extent 
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consultation.  Your  data  will  be  handled  in  conformity  with  Regulation  (EC)  N° 
45/2001  on  the  protection  of  individuals  with  regard  to  the  processing  of  personal 
data by Community institutions and bodies and on the free movement of such data. 
Your  data  are  recorded  and  stored  as  long  as  follow-up  actions  are  needed  in  the 
context of your contribution. For transparency purposes, the contributions, including 
your name and position in your organisation will be communicated to the public, in 
particular through the Commission website at: http://[...].  

Right of rectification & personal data controller: 

Should  you  require  further  information  concerning  the  processing  of  your  personal 
data or exercise your rights (e.g. access or rectify any inaccurate or incomplete data) 
please contact: JUST-CRIMINAL-JUSTICE@ec.europa.eu 

You  have  the  right  of  recourse  at  any  time  to  the  European  Data  Protection 
Supervisor at edps@edps.europa.eu 

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ANNEXES 

TABLE 1: PRISON POPULATION IN THE EUROPEAN UNION 2009-2010 

Statistics: Prison population in the European Union 
(Sources: International Centre for Prison Studies – King's College – University of London available at: 

http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/?search=europe&x=Europe 

and Eurostat – statistics in focus – 58/2010) 

EU Member States 

Prison population total 

Pre-trial detainees 

Occupancy level 

Prison population rate 

Data from 2009/2010 

(including pre-trial 
detainees/ 
remand prisoners) 

(percentage of prison 
population) 

(based on official 
capacity) 

(per 100 000 of national 
population) 

Non-national 
prisoners 

Juveniles / 
minors 

(percentage of prison 
population, incl. non-
national EU citizens) 
and 3rd country 
nationals) 

(percentage of 
prison 
population) 

Austria

Belgium

Bulgaria

Cyprus

Czech Republic

Denmark

8 671

10 501

9 071

831

22 575

3 967

23,7%

35%

10,4%

38,4%

11,3%

34,9%

102,9% 

118,9% 

155,6% 

150,5% 

111,9% 

96% 

103

97

120

105

214

71

45,8% 

41,1% 

1,9% 

59,6% 

7,3% 

21,9% 

2,6 % 

0,3 % 

0,5 % 

0,6 % 

0,7 % 

0,5 % 

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Estonia

Finland

France

Germany

Greece

Hungary

Ireland 

Italy

Latvia

Lithuania

Luxembourg

Malta

The Netherlands

Poland

Portugal

3 436

3 231

59 655

69 385

11 547

15 373

4 409

68 795

7 055

8 655

706

583

15 604

82 794

11 896

21,9%

17,1%

27,7%

15,5%

27,4%

29,3%

14,9%

43,6%

28,3%

14%

47,2%

35,2%

36,3%

10,3%

19,4%

97,2% 

98,2% 

118,1% 

89,0% 

129,6% 

127,7% 

103,7% 

153% 

70,4% 

85,5% 

99,3% 

84,5% 

86,4% 

97,4% 

98,5% 

256

39,4% 

60

96

85

102

153

99

113

314

260

139

140

94

217

112

10,3% 

19,2% 

26,3% 

43,9% 
-

3,8% 

10,8% 

36,9% 

1% 

1,2% 

69,5% 

40,1% 

27,7% 

0,7% 

20,2% 

1 % 

0,1 % 

1,1 % 

3,5 % (of pre-
trial prisoners 

4,4 % 

3 % 

2,4 % 

0,5 % 

2,1 % 

2,5 % 

0,7 % 

6,1 % 

4,7 % 

0,3 % 

0,7 % 

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Romania

Slovakia 

Slovenia

Spain

Sweden

United Kingdom 28

a) England & Wales

b) Scotland

c) Northern Ireland

EU AVERAGE

28 481

10 044

1 385

73 520

7 286

85 206

7 781

1 557

16,5%

17,4%

24,4%

18,7%

24,7%

14,9%

20,2%

36,8%

24,7%

81,4% 

94,6% 

124,2% 

136,3% 

105,4% 

107,2% 

105,2% 

82,7% 

107,3% 

133

185

67

159

78

154

149

86

0,7% 

1,8% 

10,8% 

35,5% 

28,7% 

12,9% 

3,4% 

8% 

137 

21,7% 

1,6 % 

0,8 % 

2 % 

0 % (2,1 % under 
21) 

0,1 % 

1,9 % 

1,5 % 

1 % 

1,6% 

28 

EN 

Figures for the UK are reported separately as a) England & Wales, b) Scotland and c) Northern Ireland owing to the existence of three separate jurisdictions. 

16 

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TABLE 2: CURRENT SUPPORT ACTIVITIES AT EU LEVEL 

Title 

Nature of activity 

Description 

Criminal Justice 
Programme (JPEN) 

"Study on detention in the EU" 

"Pre-trial detention in the 
European Union"  

Pathways 
Inclusion  

for 

European Conference on 
Prison Education 

Lifelong Learning  
 Programme (LLP)  

Initiatives targeting offender 
rehabilitation 

&  

Youth in Action  
 programme 

European Social 
Fund  

Supports vocational and social 
re-integration of ex-offenders.  

JPEN finances projects relating to 
criminal justice.  

The "Study on detention in the EU" is 
being carried out by the Institute for 
International Research on Criminal 
Policy, of the Universities of Ghent, 
BE, and Tilburg, NL. It is an empirical 
EU-wide questionnaire-based survey 
of detention conditions in all Member 
States. It examines prison conditions, 
length of detention periods, early 
release provisions, health of prisoners, 
good order (compliance with 
international standards) and 
inspection and monitoring, and 
contains a special section on juveniles. 
To be published in summer 2011. 

"Pre-trial detention in the European 
Union, An Analysis of Minimum 
Standards in Pre-trial Detention and 
the Grounds for Regular Review in the 
Member States of the EU” carried out 
by the Universities of Tilburg, NL, and 
Greifswald, DE. It contains a 
statistical analysis and individual 
chapters for each EU Member State. 

In February 2010, the European 
Commission organised a European 
Conference on Prison Education, 
Pathways for Inclusion. Its results 
were instrumental in shaping 
pathways for future development of 
prison education modules. 

Education and training are a vital 
component in effective rehabilitation 
strategies, as are measures to engage 
young people at risk. The main EU 
instruments are the Lifelong Learning 
Programme (LLP) and the Youth in 
Action programme. Initiatives 
specifically targeting offender 
rehabilitation account for over 100 
grants totalling some 12 million €.  

The European Social Fund supports 
both the vocational and the social re-
integration of ex-offenders. Common 
consensus is that the single most 
important factor in reducing 
reoffending is that the offender has a 

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EQUAL 
Community 
Initiative etc 

Aims to strengthen the 
employability of ex-offenders 

job on release. Around 10 billion € 
over the period 2007-2013 is 
earmarked for actions promoting the 
social inclusion of the most 
disadvantaged groups, which include 
prisoners and ex-offenders.  

The  EQUAL  Community  Initiative 
aims  to  strengthen  the  employability 
of  ex-offenders.  A  Learning  Network 
for the Re-integration of Ex-Offenders 
bringing  together  11  Member  States 
has  been  established  and  is  funded 
until  the  beginning  of  2012..  The 
Structural  Funds  are  used  in  several 
programmes  to  provide  vocational 
training 
correctional 
centres.  These  are  European  Regional 
Development 
(ERDF) 
as 
investments 
educational  training  workplaces  and 
are  supplemented  by  European  Social 
Fund  actions  designed 
to  help 
reintegrate ex prisoners into society.  

Fund 
areas 

facilities 

such 

in 

in 

Peer-to-Peer II 
Project 

The  aim  is  to  reduce  poor 
treatment  of  prison  inmates  at 
national level in Europe 

The  European  Commission, 
the 
Council  of  Europe  and  the  newly 
created Human Rights Trust Fund are 
co-funding a large project, the Peer-to-
Peer II Project which includes funding 
for  the  European  NPM  Project.  The 
overall  objective  of  the  project  is  to 
treatment  of  prison 
reduce  poor 
inmates at national level..  

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