Europe: Increase in pre-trial detention rates erodes rule of law

Article by Fair Trials

A new briefing from Fair Trials shows that:

  • Pre-trial detention increased across Europe in 2020 despite the serious health risks created by detaining people during the COVID-19 pandemic.
  • In a number of Member States, including Poland and France, the number of people being held in prison while waiting for a trial has increased steadily over the past five years.
  • This increase in pre-trial detention is a sign that the rule of law continues to decline across the European Union.

Read the briefing here.

Legal Director, Laure Baudrihaye-Gerard said:

Taking someone s liberty away before they’ve even been found guilty of a crime – is one of the harshest measures that a State can take. Pre-trial detention should be a measure of last resort, particularly when the health risks in prison posed by COVID-19 are so high. However, pre-trial detention rates continued to rise in many states during the pandemic. This is a sign that the necessary safeguards to prevent overuse of detention are not functioning. More broadly, high pre-trial detention rates are yet another sign that the rule of law is being eroded across the EU.

The ever-growing recourse to pre-trial detention is driving prison overcrowding and deteriorating prison conditions. This is a structural problem in Europe that needs to be addressed urgently.

When it comes to monitoring the state of the rule of law, the European Commission cannot ignore pre-trial detention rates any longer.

As Europe faces the third wave of the COVID-19 pandemic, Fair Trials is calling for Member States to ensure pre-trial detention is only used when necessary and proportionate. We are also calling for the European Commission to include pre-trial detention in its current discussions with Member States in preparation for the 2021 Rule of Law monitoring report.

Read the briefing here.

The use of pre-trial detention is often based on an assumed flight risk simply where a person is not a resident or a citizen of the country where the investigation or trial is taking place. This discriminatory use of pre-trial detention is seen in cross-border proceedings where authorities rely upon European Arrest Warrants to get suspects located in another country extradited and detained. Fair Trials is promoting alternatives to the European Arrest Warrant to be used to avoid the unnecessary and discriminatory use of detention of people suspected of a crime in cross-border proceedings.

Find out more about our work on European Arrest Warrants.