The EU’s common rules on detention: how serious are Member States about protecting fundamental rights?

By Debbie Sayers, Legal Research Consultant, http://interalia.org.uk

On 5 February 2014, the Commission published a damning report on its ‘common rules on detention’ confirming that, at best, only 18 of 28 Member States have implemented any of the instruments. This is a quantitative not qualitative study: there has been no evaluation of how well these rules have been applied or whether they have improved the lot of individuals.

The poor level of implementation of these very basic commitments to improve the rights of detainees is of concern. Every year, tens of thousands of EU citizens are prosecuted for alleged crimes or convicted in another Member State of the EU yet there is significant evidence of unacceptable disparity in standards of detention within Europe. Fair Trials International (FTI) has long noted the existence of lengthy pre-trial detention and the inconsistent availability of alternatives to detention such as electronic tagging as well as “overcrowding, violence, poor healthcare and lack of facilities”. Likewise, the former Council of Europe Commissioner on Human Rights, Thomas Hammarberg, has described the use of pre-trial detention as “virtually systematic in a number of European countries" with rates of 42% in Italy. The structural and systemic problem of overcrowding in the Italian prison system led to a pilot judgment by the ECtHR in 2013 which condemned Italy for inhuman and degrading treatment in overcrowded jails. The evidence of the need for action is clear.

Mutual recognition and a lack of mutual trust

To start at the beginning, the term ‘common detention rules’ relates to three mutual recognition Framework Decisions (FD) agreed by the EU to be implemented by 2011 and 2012 by all Member States. They form part of a broader judicial cooperation agenda which has focussed on the mutual recognition of judicial decisions and the approximation of law. The European Arrest Warrant [EAW] is the most notorious of these instruments.

Mutual recognition allows judicial decisions to ‘move’ freely between EU Member States based on the presumed existence of “mutual trust” between them. The approach has been predominantly prosecutorial, but, as experience with the operation of the EAW has demonstrated the fallacy of assumptions about trust, there have been increased efforts to establish specific individual safeguards to support the mutual recognition agenda. In 2009, the Council of the EU set out a ‘Roadmap’ for harmonizing some criminal procedural standards to “enhance citizens' confidence that the European Union and its Member States will protect and guarantee their rights”. To date, three Directives (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) have been agreed with a further package recently proposed.

However, the EU had already taken action in respect of EU citizens who were non-residents in a Member State where they face criminal proceedings as it was recognised that, too often, they may end up in detention where residents may not. This can occur pre-trial, because of the fear of flight, and also at sentence, where non-custodial sentences may be considered inappropriate. The three instruments agreed were:

·         The Framework Decision on the Transfer of Prisoners to be implemented by 5.12.11. It allows a Member State to execute a prison sentence issued by another Member State against a person who remains in the first Member State. It also establishes a system for transferring convicted prisoners back to the Member State of nationality or habitual residence (or to another Member State with which they have close ties) to serve their prison sentence.

·         The Framework Decision on probation and alternative sanctions to be implemented by 6.12.11.  It applies to many alternatives to custody and to measures facilitating early release (e.g. an obligation not to enter certain localities, to carry out community service or instructions relating to residence or training or professional activities). The probation decision or other alternative sanction can be executed in another Member State, as long as the person consents.

·         The European Supervision Order (ESO) to be implemented by 1.12.12. It enables a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where non-resident is suspected of having committed the offence to Member State where they are normally resident., thus, hopefully avoiding pre-trial detention.

In relation to detention conditions, a Commission Green Paper on Detention was also published in 2011 acknowledging 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, mutual trust is undermined by inconsistent and unfair detention arrangements and the EU needs to address this.

“Fewer than half of EU Member States have implemented common rules on detention”

It is in this context that the Commission published its report on the implementation of these ‘common rules on detention’. Rates of compliance are poor:

·         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. Only Denmark, Finland, Italy, Luxembourg and the UK had implemented it by the deadline. 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.  Only Denmark and Finland had implemented it by the deadline.

·         European Supervision Order: only 12 Member States have implemented it - Austria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, Slovakia. Only Denmark, Finland, Latvia and Poland had implemented it by the deadline.

In relation to the implementation legislation itself, the Commission has now highlighted some key concerns arising from its analysis which will need to be addressed by all Member States:

·         Member States must set out an effective procedure to give a role to “the person concerned in the transfer process” under the various FDs.

·         The principle of mutual trust is to be respected by achieving “the right balance” between respect for the sentence originally imposed and the legal traditions of Member States.

·         Member States must properly implement the duty to provide information about the sentence to avoid any differences discouraging use of the instruments.

·         The Commission’s view is that adding additional grounds for refusal and making them mandatory “seem[s] to be both contrary to the letter and spirit of the Framework Decisions”.

·         The time limits are to be respected and should be exceeded only in exceptional circumstances”.

·         Those provisions which link the FD and the EAW should be implemented. For example, Article 21 (which allows for the return of a person by EAW if s/he has not complied with an ESO) have not properly been implemented. The Commission describes this as ‘regrettable’ as Article 21 “would be very useful to allow persons awaiting trial for relatively minor offences to go home”

·         The Commission rules the declarations made by four Member States (Ireland, Malta, Netherlands and Poland) in relation to transitional provisions on the transfer of prisoners invalid because they were made after the adoption of the FD.

Those who have transposed the instruments are still requested “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 confirms pragmatically that

“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.”

They also have “the potential to reduce prison overcrowding and reduce prison budgets”.

There is an evident need for swift action to address these failures. From the perspective of the ‘suspect’, the non-adoption of the ESO by many Member States is concerning as it is a crucial ‘flanking measure’ for the EAW. FTI has long campaigned on the issue of bail in the EU, producing clear evidence of discrimination in the operation of decision-making (e.g. see the House of Lords report in 2007 on the European Supervision Order). The excessive and unfair use of detention for the non-resident suspect also undermines the right to a fair trial because it affects the suspect’s exercise of fair trial rights as well as the presumption of innocence. These fundamental rights are enshrined in Article 5 and 6 ECHR and Articles 6, 47 and 48 of the EU Charter of Fundamental Rights and merit active protection in practice. From the prosecution perspective too, cooperation cannot be made effective with such partial transposition.

 So what can be done? Infringement action against Member States is not possible until 1 December 2014 because of Article 10 of Protocol 36, which provides for a five-year waiting period before the Commission can sue Member States for non-implementation of EU ‘third pillar’ (criminal law and policing measures) adopted before the entry into force of the Treaty of Lisbon, such as these FDs. Whether the Commission will take such action at that point remains to be seen.

However, there is a broader point at stake: will these laws be used even if the FDs are implemented domestically and will they make any difference? The Commission’s report notes that the “limited figures available show that the Transfer of Prisoners is already used whereas no transfers have yet taken place under Probation and Alternative Sanctions and European Supervision Order”. We need to explore fully the reasons for the lack of commitment to these instruments. Is it a reflection of the prosecutorial drive behind the mutual recognition agenda or the absence of commitment to human rights protection? Is it the result of a lack of understanding (see FTI’s report) or weaknesses in training? Is it connected to resources, occupational cultures or a reluctance to cooperate? Or is it a mixture of all these factors? Over a hundred years ago, Roscoe Pound concluded that legislation which has not been the product of preliminary study of the conditions to which it was meant to apply will not respond accurately to social needs. Consequently, the process of making effective laws must go beyond statistics and data gathering to consider the human impact of its implementation.


Barnard & Peers: chapter 25