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A Measure of Last Resort?

The practice of pre-trial detention decision-making in the EU

May 26, 2016 - Pre-trial detention
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'A Measure of Last Resort? The practice of pre-trial detention decision-making in the EU' shows the extent to which pre-trial detention is being used all over the EU without adequate justification.

Within the European Union, there are over 120,000 people being detained in pre-trial detention. That's more than 1 in 5 people held in prison that haven't yet been found guilty of any crime. The report brings together the findings from across the 10 jurisdictions, as well as a wider regional experts seminar, which involved over 50 participants from 24 EU Member States.

You can read some of the key findings of our report here.


Executive Summary 


Pre-trial detention (depriving suspects and accused people of their liberty before the conclusion of a criminal case) is intended to be an exceptional measure, only to be used as necessary and proportionate and in compliance with the presumption of innocence and the right to liberty. Its use is only acceptable as a measure of last resort, in very limited circumstances. Unfortunately, in the EU as around the world, these strict limitations are not always respected.

The EU is facing a long-standing crisis in prison overcrowding that threatens to undermine mutual trust and the functioning and legality of mutual recognition instruments like the European Arrest Warrant. Overcrowding, and the rights violations it causes, is driven in part by excessive use of pre-trial detention, in contravention of regional and international standards. The European Commission and Parliament have, for the past five years, repeatedly recognised the need for improved standards of pre-trial detention. Recent decisions from the Court of Justice of the European Union have again pushed the need for regional legislation to the fore.

Given the concern expressed about excessive use of pre-trial detention in the EU, there is a surprising lack of information on the practical operation of procedural rules designed to ensure that detention is only used when strictly legal and necessary. In order to gain a realistic view of problems in practice on which to develop targeted national and regional solutions, Fair Trials has coordinated research in ten EU Member States (England and Wales, Greece, Hungary, Italy, Ireland, Lithuania, Netherlands, Poland, Romania, and Spain) to analyse the practice of pre-trial detention decision-making and the use of alternatives to detention. The research consisted of legal and statistical analysis, hearing monitoring, case-file reviews, a survey of defence lawyers, and qualitative interviews with prosecutors and judges, resulting in detailed reports. This report provides a high-level overview of the research and analysis from an EU regional perspective.


Despite laws that protect in principle concepts like detention as a last resort, presumption of release, equality of arms, and proportionality, researchers across the studied jurisdictions found systematic failures to respect these standards effectively in practice. Researchers observed proceedings in which judges made poorly-reasoned decisions to detain suspects unnecessarily, relying on minimal information. Judicial reasoning was often vague and formulaic, and failed to engage sufficiently with practical alternatives to pre-trial detention that can protect the investigation, limit the possibility of reoffending and ensure defendants’ presence at trial.

Procedure: Defendants did not always have access to adequate legal assistance or sufficient access to case materials essential to challenging detention. Even where access was sufficient, in most jurisdictions lawyers did not have enough time to study the material prior to a hearing. Many lawyers perceived, and researchers were able to establish, that judges credited the arguments of the prosecution over those of the defence. Lawyers in some jurisdictions believed that pre-trial detention was used for unlawful ends, such as in order to coerce a confession, and some judges admitted using pre-trial detention for punitive purposes.

Substance: Human rights standards set out certain limited grounds for imposing pre-trial detention but judges sometimes relied on unlawful grounds, such as exclusive or primary reliance on the nature of the offences, or findings of flight risk based on suspect justifications such as lack of fixed residence or foreign nationality. Reasoning was often formulaic and did not engage with the specific evidence in each case. In some countries, certain suspects including women and foreign nationals were disproportionately detained.

Reviews: Because pre-trial detention is intended as an exceptional measure, countries should provide regular reviews of detention to ensure that it is still justified. But reviews in practice did not always provide sufficient oversight. In some countries, defendants and/or their lawyers are not being guaranteed presence at review hearings. Decisions to detain were rarely overturned or even seriously questioned on review in most countries, and reasoning tended to be even more generic and formulaic than in the first instance. Detention was sometimes extended to protect the integrity of the investigation long after relevant investigative tasks were complete. The frequency with which reviews takes place varies widely between Member States, as does the average duration of pre-trial detention.

Alternatives: Researchers observed that judges were often reluctant to use alternatives. Electronic monitoring and house arrest are increasingly available in many Member States, but these were seldom used due to their novelty and court actors’ lack of experience in administering them. As a result of a lack of data collection, access to bail information services or pre-trial risk assessments, training, investment and enforcement of alternatives to detention, judges and prosecutors lacked faith in the efficacy of alternatives and continued to rely instead on pre-trial detention. Some examples of good practice exist and could be duplicated elsewhere. Alternatives to detention can also infringe the right to liberty, and human rights impacts of their extended use must also be considered, especially with regard to electronic monitoring and house arrest.


Fair Trials recommends that regional action should take the form of an EU legislative instrument that is binding on Member States and codifies existing ECHR standards which are currently inaccessibly buried in an ever-growing corpus of ECtHR case law. Legislation is within the EU’s competency and would add value by setting out procedural guidelines to ensure that domestic legislation adequately assists judges to give effect to those standards in practice.

Greater financial investment in prisons is not the answer to the problems presented by overcrowding, which will continue to grow in the absence of clear and effective legal frameworks to prevent excessive pre-trial detention over the long term.

Member States are experiencing significant tension in balancing the importance of mutual recognition measures like the European Arrest Warrant (EAW) with their obligation to protect the fundamental rights of individuals subject to them. Repeated cases of injustice have demonstrated that regional action on pre-trial detention reform is necessary to support the EU legal order, achieve economic efficiency in the administration of criminal justice, and to protect public safety.

Percentage of EU prison population in pre-trial detention


Percentage of Prison Population in PTD.png

Judicial grants (%) of prosecutorial requests for pre-trial detention

Judicial grants of prosecutorial requests.png

If you are a journalist interested in this story, please call the media team on +44 (0) 7749 785 932 or email [email protected]

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Some activities in the following sections on this website are funded by the European Union’s Justice Programme (2014-2020): Legal Experts Advisory Panel, Defence Rights Map, Case Law Database, Advice Guides, Resources, Campaigns, Publications, News and Events. This content represents the views of the authors only and is their sole responsibility. It cannot be considered to reflect the views of the European Commission or any other body of the European Union. The European Commission does not accept any responsibility for use that may be made of the information it contains.