Unravelling Flight Risk: Pre-trial Detention Trends Across Europe

Article by Fair Trials

On January 30, 2024, the National Institute of Criminalistics and Criminology finalized the report “Available statistical data and research on flight risk in pre-trial (detention) proceedings”. The report, which will be soon available on our website, is an output of the FLIGHTRISK project funded by the European Commission.

The project, which includes the Ludwig Boltzmann Institute of Fundamental and Human Rights (Austria), the Bulgarian Helsinki Committee Association (Bulgaria), the Helsinki Foundation for Human Rights (Poland), the Irish Council for Civil Liberties Limited (Ireland), the National Institute of Criminalistics and Criminology (Belgium) and Fair Trials Europe, analyses judicial decision-making practice on flight risk as a ground for pre-trial detention and its use considering ECtHR regional standards.

Aiming at setting the current regional state of play, the authors investigated whether statistical data and scientific research on flight risk was available in the Member States of the European Union. To obtain their findings, they conducted meticulous research between July 2022 to January 2024 which involved reviewing literature and creating an open-ended questionnaire shared with relevant stakeholders across the EU.

Flight Risk Terminology   

Flight risk is one of the most common grounds on which a judge relies to decide on pretrial detention. It refers to someone who is accused of a crime and is considered  likely  to  try  to  escape out of the country  or  area  before  their  trial or bail hearing begins.

To date, there is no universal terminology to the concept of flight risk. NICC’s Jonckheere and Maes explain in their report that there exist different terms to refer to flight risk that are often used interchangeably, even when they should not in some cases. These terms are the risk of absconding, risk of fleeing, risk of evading and the risk of hiding.

The study considered these various terms, acknowledging that certain domestic laws do differentiate between them. For example, in Germany “the term Flucht (flight) covers two alternative actions, which can exist contemporaneously and which both lead to the imposition of pre-trial detention: The action of absconding itself (fliehen) and the action of going into hiding (sich verborgen halten). Both alternatives require the accused’s will to evade ensuing criminal proceeding.”

Prevalence of flight risk & factors taken into account   

In the “Available statistical data and research on flight risk in pre-trial (detention) proceedings” the authors found that there is a lack of studies which analyze the extended use of flight risk in pre-trial detention and scarcity of statistical data on this matter collected by official national bodies, with notable exceptions in Germany and Spain.

This study aligns with previous research findings concerning variations in the utilization of grounds of recidivism and flight risk among EU Member States. Specifically, it observes a prevalence of flight risk over recidivism in some jurisdictions, while others exhibit the opposite trend and regional disparities within the same jurisdiction or country.

For example, in Spain (according to nationwide statistical data published by the General Council of The Judiciary), the primary ground for pre-trial detention is the risk of not appearing at trial (risk of escape). In Italy, research indicates that the primary grounds leading to pre-trial detention is the risk of reoffending. Additionally, flight risk is frequently cited, although typically in combination with other grounds for pre-trial detention.

Another two neighboring countries, Germany (one of the two countries with statistical data on flight risk published by the Statistisches Bundesamt), and Austria, proceed differently in applying flight risk as a ground for pre-trial detention. Austria takes the same approach as Italy, in which the risk of reoffending is stated as a ground (90%), while in Germany occurs the opposite, 90% of all pre-trail detention cases are based on the risk of absconding.
Research shows the severity of the offence, lack of strong bonds such as family ties and occupation, and importantly, foreign nationality and absence of a (fixed) place of residence in the prosecuting State are considered in assessing flight risk, deriving in the ground for detention more often applied.

The specific case of foreign nationals & flight risk

In Europe, nearly 60% of individuals detained pre-trial in 2019 were foreigners (Fair Trials 2021). This disproportionality is attributed to the application of legal criteria concerning the risk of flight. However, local divergencies are noticed; for example, in Austria, 68% of people in pre-trial detention are of foreign nationality, compared with just 5% in Bulgaria and 8% in Poland. Foreign nationality and residency are often perceived by judges as opportunities for evading supervision by law enforcement authorities while trials are pending and, ultimately, fleeing justice.

Behind this, there is a form of selectivity in relation to the person and their ethnic origin (Fair Trials 2021).

AI for identifying flight risk  

With the development of technology, particularly Artificial intelligence (AI), an additional concern is added. In this respect, the report notes that automation of the legal system should be cautiously applied. Research from the United States examines how AI risk assessment tools can help determine flight risk and the likelihood of defendants responding to court summons. The authors stress the importance of judges retaining autonomy to deviate from machine-calculated risk factors and individualizing their decisions. Studies of this type are an important reminder of the need – but also the difficulty – of determining objectively the risk of absconding in concrete terms.

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