Recommendation of the Commission on procedural rights of suspects and accused in pre-trial detention and on material detention conditions
Date: 2022-03-25
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: fundamental rights



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CALL FOR EVIDENCE


FOR AN INITIATIVE  (without an impact assessment)






This document aims to inform the public and stakeholders about the Commission's work, so they can provide feedback and participate effectively in consultation activities. 


We ask these groups to provide views on the Commission's understanding of the problem and possible solutions, and to give us any relevant information they may have. 






Title of the initiative




Pre-trial detention – EU recommendation on rights and conditions






Lead DG – responsible unit 




Directorate-General for Justice and Consumers (DG JUST), Unit B2 Procedural Criminal Law






Likely Type of initiative




Commission Recommendation






Indicative Timing




Q4-2022






Additional Information




-






This document is for information purposes only. It does not prejudge the final decision of the Commission on whether this initiative will be pursued or on its final content. All elements of the initiative described by this document, including its timing, are subject to change.










A. Political context, problem definition and subsidiarity check






Political context 








People in pre-trial detention account on average for 22% of the total prison population in the EU and have a substantial impact on overcrowding in prisons. In addition, the average length of pre-trial detention varies substantially between EU countries. 


In the conclusions from EU Council meetings in recent years, EU governments have repeatedly acknowledged the importance of detention conditions, as well as alternatives to detention, including at the pre-trial stage, in the context of the European arrest warrant. 


At the Justice and Home Affairs Council meeting of 7 October 2021, national justice ministers underlined the high sensitivity of the topic, which is at heart of national criminal justice systems. They stressed the importance of the work done by the Council of Europe in this area, as well as funding possibilities for prisons under the EU’s multi-year budget for 2021-27. 


To improve detention conditions and increase the use of alternative measures, the ministers recommended the creation of recommendations or guidelines, the sharing of good practice and additional judicial training.


The Commission’s 2022 work programme commits it to assessing how to achieve convergence on pre-trial detention and detention conditions between different EU countries, as part of improving cross-border cooperation in criminal matters. 


At the same time, the DG for Home Affairs is working on a Commission Recommendation on alternatives to coercive penalties for drug-using offenders, which will also be adopted in Q4 2022.







Problem the initiative aims to tackle 






The problems the initiative aims to tackle are:


a) National practices in pre-trial detention and material detention conditions not meeting international standards


Despite standards in this field developed by the Council of Europe, it appears that in many EU countries pre-trial decision-making amounts to a routine exercise that does not involve reasoned decisions. 


Available data show that some countries do not provide for pre-trial alternatives (e.g. bail, reporting to the police authorities, electronic monitoring or a travel ban), and even if these exist, they are rarely used by judges at this stage of the proceedings. 


It seems that there is also a lack of knowledge among judges and prosecutors of the applicable international standards as regards decision-making on pre-trial detention.


Material detention conditions also vary considerably between EU countries and in some cases fall below the standards of the European Convention on Human Rights (ECHR) and other international human rights acts.


b) Negative impact on mutual trust and EU judicial cooperation in the area of criminal law


The divergent national practices for pre-trial detention and in material detention conditions are detrimental to mutual trust between EU countries and might in particular affect the operation of EU judicial cooperation instruments, such as the European arrest warrant. 


Indeed, there are an increasing number of cases where surrender under a European arrest warrant is contested because it is expected that the person concerned will be kept in pre-trial detention for an overly long period and suffer from poor conditions during that time. Such contestations may considerably delay the procedure and affect the efficiency and general credibility of the European arrest warrant. 


How is the problem likely to evolve with no new EU action?


As the ECHR and the case law of the European Court of Human Rights are not uniformly implemented by EU countries, the level of protection given to suspects, accused people and detainees on the basis of the very different standards would remain inadequate, and mutual trust in cross-border judicial cooperation would be undermined.


This could result in:


·an increasing number of refusals to surrender people under a European arrest warrant


·continuing costs of appeals, due to breaches of suspects’ rights in detention


·direct costs relating to prisons 


·indirect personal costs for the individuals in detention (such as loss of job and family ties).






Basis for EU action (legal basis and subsidiarity check) 











Legal basis






The EU's legislative powers to lay down minimum rights in criminal procedures are set out in Art 82(2) (b) of the Treaty on the Functioning of the EU.  


Article 292 of this treaty empowers the Commission to adopt Recommendations on such issues. The proposed Recommendation aims to improve the procedures and cross-border cooperation.






Practical need for EU action






EU action can be justified for several reasons, in particular: 


People who are enjoying their rights under EU law to move freely around the EU can be involved in criminal proceedings outside their own EU country, so the needs of suspected, accused and detained people in such cases need to be tackled by action at EU level.


There are still differences in detention standards between EU countries, with poor standards in a number of them. This is despite their shared obligations under the ECHR and other international human rights acts.


Convergence in law and practice as regards detention will not be achieved in a timely and coordinated manner if left to EU countries alone.






B. What does the initiative aim to achieve and how 






General policy objectives 


·To improve the protection of fundamental rights for suspects, accused people and detainees throughout the EU, in compliance with EU and other international standards.


·To strengthen mutual trust between judicial authorities and so ensure the smooth working of EU judicial cooperation instruments.


Specific/operational policy objectives 


·To ensure convergence of standards for pre-trial detention and material detention conditions in line with EU countries’ obligations under the ECHR and other international human rights acts.


·To increase the use of alternatives to (pre-trial) detention by national courts, consistent with the principle that detention should be used only as a last resort.


Because EU governments will remain responsible for implementing this Recommendation, the proposal does not go beyond what is necessary and proportionate.






Likely impacts






A Commission Recommendation has the potential to create more convergence in detention matters by EU countries, thereby increasing mutual trust in the common area of freedom, security and justice. 


As regards social impact and fundamental rights, some improvement of the rights of suspects, accused people and detainees would be likely, as Commission endorsement of and guidance on detention standards would help reinforce the safeguards in all countries. 


As regards the financial and economic impact, if the Recommendation were effectively implemented by EU countries, it would reduce the current costs of appeals to the European Court of Human Rights.  


Any training schemes and other ‘soft’ measures introduced to comply with the Recommendation would involve some costs. In the longer-term, because fewer people will be held in detention, there could be cost reductions, including direct costs related to prisons and indirect social costs.






Future monitoring






Within 24 months of the Recommendation being published, EU governments are expected to inform the Commission about the extent of their compliance and/or which measures they have taken to give effect to the Recommendation.


The Commission would carry out an evaluation of these notified national measures within 36 months of the publication date. 






C. Better regulation






Impact assessment 






No impact assessment or implementation plan will be necessary, as the initiative will consist of a Commission Recommendation, which will mainly consist of a compilation of relevant existing Council of Europe and other international standards. 


As the initiative will be a non-binding recommendation, impacts cannot be clearly identified in advance as they will depend on the level of (voluntary) compliance. 







Consultation strategy 






Currently, an exploratory study on pre-trial detention is being carried out by an external contractor (Tetra Tech). It is due to be finalised by Q1 2022. 


This study will include an extensive consultation of key stakeholders (national authorities, including judges and prosecutors, defence lawyers and human rights NGOs) via questionnaires and interview programmes. Dedicated workshops will be held with practitioners in 5 EU countries in Q1 2022 (Netherlands, Ireland, Romania, Germany and France).


These key stakeholders will also be consulted via targeted consultations, carried out by the Commission in Q2 2022. There is therefore no need for a public consultation.