By Debbie Sayers, Legal Research Consultant, http://interalia.org.uk
In early February 2014, the Commission released a concerning report regarding “common rules on detention.” The report revealed that a mere 18 out of 28 EU member states had implemented any of the intended instruments. This study was purely quantitative and did not assess the effectiveness of the rules or their impact on individuals.
The inadequate implementation of these fundamental commitments to enhance detainee rights is worrisome. Each year, countless EU citizens face prosecution or conviction in another Member State. However, there is considerable evidence of unacceptable inconsistencies in detention standards across Europe. Fair Trials International (FTI) has long highlighted issues such as prolonged pre-trial detention, limited availability of alternatives like electronic tagging, and problems like overcrowding, violence, subpar healthcare, and inadequate facilities. Similarly, former Council of Europe Commissioner for Human Rights, Thomas Hammarberg, has criticized the “virtually systematic” use of pre-trial detention in several European countries, with rates reaching as high as 42% in Italy. This systemic overcrowding in the Italian prison system resulted in a landmark 2013 judgment by the European Court of Human Rights (ECtHR), condemning Italy for subjecting prisoners to inhumane and degrading treatment due to overcrowding. The evidence clearly calls for immediate action.
Mutual recognition and a lack of mutual trust
To clarify, the term “common detention rules” refers to three mutual recognition Framework Decisions (FD) adopted by the EU, with a 2011-2012 implementation deadline for all Member States. These decisions are part of a broader judicial cooperation strategy focused on the mutual recognition of legal rulings and the harmonization of laws. The European Arrest Warrant (EAW) is the most well-known of these instruments.
Mutual recognition allows legal decisions to move easily between EU Member States based on an assumption of “mutual trust.” This approach has mainly been prosecution-oriented. However, the EAW’s implementation has exposed the flawed nature of these trust assumptions. As a result, there have been increased efforts to establish specific safeguards for individuals to support this mutual recognition approach. In 2009, the Council of the EU established a “Roadmap” for aligning criminal procedure standards to “enhance citizens’ confidence that the European Union and its Member States will protect and guarantee their rights.” Currently, three directives have been agreed upon: the Directive on the right to interpretation and translation in criminal proceedings, the Directive on the right to information in criminal proceedings, and the Directive on the right of access to a lawyer. An additional package was recently proposed.
The EU had already taken steps to address the situation of EU citizens facing criminal proceedings in a Member State where they are not residents. These individuals often end up detained in situations where residents might not. This can occur pre-trial due to concerns about flight risk and also at sentencing when non-custodial options are deemed unsuitable. The three agreed-upon instruments are:
· The Framework Decision on the Transfer of Prisoners, to be implemented by 5.12.11, allows Member States to carry out prison sentences handed down by another Member State for individuals still residing in the first Member State. This framework also establishes a system for transferring convicted prisoners back to their home country or a Member State where they have strong ties to serve their sentence.
· The Framework Decision on probation and alternative sanctions, to be implemented by 6.12.11, pertains to various alternatives to imprisonment and measures promoting early release (e.g., restrictions on entering specific areas, community service mandates, or requirements related to residency, training, or work). Probation decisions or other alternative sanctions can be executed in another Member State with the individual’s consent.
· The European Supervision Order (ESO), to be implemented by 1.12.12, allows non-custodial supervision measures (e.g., obligations to remain in a specific location or report to an authority at scheduled times) to be transferred from the Member State where a non-resident is suspected of committing an offense to their home Member State. This is intended to prevent pre-trial detention.
Regarding detention conditions, a Commission Green Paper on Detention was published in 2011. This paper recognized that “excessively long periods of pre-trial detention are detrimental to the individual, can prejudice judicial cooperation between the member states and do not represent the values for which the European Union stands”. Pragmatically, inconsistent and unjust detention practices undermine mutual trust, a problem the EU must address.
“Fewer than half of EU Member States have implemented common rules on detention”
Within this context, the Commission published its report on implementing these “common rules on detention.” Adherence rates are disappointingly low:
· FD on the Transfer of Prisoners: Only 18 Member States have implemented it: Austria, Belgium, Czech Republic, Denmark, Finland, France, Croatia, Hungary, Italy, Luxembourg, Latvia, Malta, Netherlands, Poland, Romania, Slovenia, Slovakia, and the UK. Of these, only Denmark, Finland, Italy, Luxembourg, and the UK met the deadline. It’s worth noting that this is the only instrument the UK has implemented.
· FD on probation and alternative sanctions: Only 14 Member States have implemented it: Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, and Slovakia. Again, only Denmark and Finland met the deadline.
· European Supervision Order: Only 12 Member States have implemented it: Austria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, and Slovakia. In this case, only Denmark, Finland, Latvia, and Poland implemented it by the deadline.
Regarding the implementing legislation itself, the Commission highlighted key concerns identified through their analysis, issues that all Member States must address:
· Member States are obligated to establish an effective process that gives “the person concerned in the transfer process” a role under the different FDs.
· Achieving “the right balance” between upholding the original sentence and respecting the legal traditions of individual Member States is essential to upholding the principle of mutual trust.
· Member States must thoroughly fulfill their obligation to provide information about the sentence to prevent discrepancies that might discourage the use of these instruments.
· The Commission contends that incorporating additional grounds for refusal and making them mandatory appears to contradict both the wording and the intent of the Framework Decisions.
· Established time limits must be adhered to and should only be bypassed in extraordinary circumstances.
· Provisions linking the FD and the EAW should be implemented. For example, Article 21, which allows for returning an individual via EAW if they haven’t complied with an ESO, hasn’t been properly implemented. The Commission finds this “regrettable” as Article 21 “would be very useful to allow persons awaiting trial for relatively minor offences to go home”.
· The Commission has deemed the declarations made by four Member States (Ireland, Malta, Netherlands, and Poland) concerning transitional provisions on prisoner transfers invalid because they were submitted after the FD’s adoption.
Countries that have transposed the instruments are urged “to review and align their national implementation legislation with the provisions of the Framework Decisions”.
Enforcing compliance and creating trust
The three FDs are interconnected and linked to the EAW. In its press release, the Commission acknowledges:
“The rules [are].. an essential element of a common European area of justice ….[and]… important tools to further social rehabilitation of prisoners and reduce the use of pre-trial detention. Their proper implementation is crucial.”
Additionally, they have “the potential to reduce prison overcrowding and reduce prison budgets”.
The need for prompt action to address these failures is clear. From a suspect’s viewpoint, the lack of ESO adoption by many Member States is concerning, as it’s a vital flanking measure for the EAW. The FTI has consistently advocated for bail reform within the EU, revealing clear evidence of discriminatory practices in decision-making. A prime example is the 2007 House of Lords report on the European Supervision Order. The excessive and unfair use of detention for non-resident suspects jeopardizes the right to a fair trial by impacting both their ability to exercise their fair trial rights and the presumption of innocence. These rights are protected under Article 5 and 6 ECHR and Articles 6, 47, and 48 of the EU Charter of Fundamental Rights and deserve active protection. Furthermore, this lack of consistent transposition hinders effective cooperation from the prosecution’s standpoint as well.
So, what can be done? Taking infringement action against Member States isn’t possible until December 1, 2014, due to Article 10 of Protocol 36. This article mandates a five-year waiting period before the Commission can pursue legal action against Member States for not implementing EU “third pillar” measures (relating to criminal law and policing) adopted before the Lisbon Treaty came into effect. Whether the Commission will take such action remains uncertain.
However, a broader issue is at play: even with domestic implementation of the FDs, will these laws be utilized, and will they make a difference? The Commission’s report notes that while “the Transfer of Prisoners is already being used, no transfers have yet taken place under Probation and Alternative Sanctions and European Supervision Order.” A comprehensive examination of the reasons behind the lack of commitment to these instruments is necessary. Does it reflect a prosecutorial bias within the mutual recognition agenda or an unwillingness to prioritize human rights? Is it rooted in a lack of understanding (refer to FTI’s report) or inadequate training? Is it linked to resource limitations, ingrained work cultures, or a reluctance to cooperate? Or is it a combination of these factors? Over a century ago, Roscoe Pound concluded that legislation developed without a preliminary understanding of the conditions it aims to address will fail to effectively meet societal needs. Therefore, the process of developing effective laws must extend beyond mere statistics and data collection. It must consider the real-world human impact of their implementation.
Barnard & Peers: chapter 25