Pre-trial detention: the case for urgent EU action

Transcription

1 Pre-trial detention: the case for urgent EU action May 2012 Our vision: Working for a world where every person's right to a fair trial is respected, whatever their nationality, wherever they are accused

2 About Fair Trials International Fair Trials International (FTI) is a non-governmental organisation that works for fair trials according to international standards of justice and defends the rights of those facing charges in a country other than their own. Our vision is a world where every person s right to a fair trial is respected, whatever their nationality, wherever they are accused. FTI pursues its mission by providing assistance to people arrested outside their own country through its expert casework practice. It also addresses the root causes of injustice through broader research and campaigning and builds local legal capacity through targeted training, mentoring and network activities. For further information, contact: Catherine Heard Emily Smith Head of Policy Policy Officer Fair Trials International Fair Trials International Catherine.Heard@fairtrials.net Emily.Smith@fairtrials.net With generous support from: Criminal Justice 2012 With financial support from the Criminal Justice Programme European Commission Directorate-General Justice

3 Executive Summary 1. Fair Trials International (FTI) has long been concerned about the excessive use of pretrial detention in the EU. Our experience of cases involving people arrested in countries other than their own has shown us the scale of the problem and the impact that unnecessary and unjustified pre-trial detention can have on the individual concerned. 2. We recognise that pre-trial detention offers important safeguards to ensure justice is served, evidence and witnesses are protected, and suspects do not escape prosecution. Yet depriving people of their liberty in the period before trial is supposed to be an exceptional measure, only to be used where absolutely necessary. Sadly, this is not the case in practice. 3. The European Commission published a Green Paper on detention in June 2011 and the consultation closed at the end of November Detention is a vast area and in our response to the Green Paper we focused solely on pre-trial detention in the EU and on whether EU-wide legislation is needed to set minimum standards governing its use. The responses to the Green Paper have recognised the problems with the pre-trial detention regime in Europe and the urgent need for action at the EU level. 4. In our response to the Green Paper, we made four key recommendations: i) the EU should legislate to set minimum standards for the use of pre-trial detention; ii) Member States should implement the European Supervision Order in a way that ensures it represents a real alternative to pre-trial detention; iii) deferred issue of European Arrest Warrants and negotiated deferred surrender should be used to avoid unnecessary pre-trial detention post-extradition; and iv) the EU should take steps towards establishing a one year maximum pre-trial detention limit, starting with targeted research by the European Commission to establish why practices differ so widely across Member States. 5. In December 2011 the European Parliament debated detention in the EU and passed a motion calling on the Commission and the Council to put forward a legislative proposal. FTI also considers the time is now right for the Commission to prepare a proposal aimed at ending the excessive and inappropriate use of pre-trial detention in the EU and to ensure that the presumption of innocence, a principle at the heart of any developed justice system, is respected more effectively across the EU. 6. More than fifty non-governmental organisations responded to the Commission s consultation. These responses indicated a large degree of support for FTI s recommendations for reform and echoed our concerns about the overuse of pre-trial detention in the EU and the need for EU legislation on minimum standards in this area. 7. Even amongst Member State responses, there was widespread agreement that there are problems with pre-trial detention in the EU and that alternatives must be used more effectively. Six Member States have called for EU legislation establishing minimum standards for the use of pre-trial detention. Sadly, other Member States seem unaware of the seriousness of the problem and six states had, as of 28 May 2012, failed to respond to the consultation at all. 1

4 Introduction 8. Inappropriate and excessive pre-trial detention clearly impacts on the right to liberty and the right to be presumed innocent unless and until proven guilty. It also has a detrimental effect on a suspect s family members, particularly when detention is overseas, as visiting will be more costly and difficult. There is a wider socioeconomic cost as lengthy pre-trial detention will usually result in the suspect losing his or her job, which can have a severe financial impact on other family members. These knock-on effects further increase the costs of pre-trial detention to the State. 9. The reality of varying standards in pre-trial detention regimes across the EU is at odds with the idea that all Member States have criminal justice systems that respect fundamental rights and deliver justice. This is the premise of mutual trust, which forms the basis of the justification for enhanced cooperation in criminal justice matters across the EU. Inadequate systems for imposing and reviewing pre-trial detention and poor pretrial detention conditions undermine the trust needed for mutual recognition instruments to work effectively. 10. FTI s response to the Green Paper in October 2011 identified a stark contrast between law and practice in relation to pre-trial detention in the EU. 1 Many Member States are not meeting basic standards laid down in the European Court of Human Rights (ECtHR) case law on Article 5 of the European Convention on Human Rights (ECHR). 2 Across the EU, people not convicted of any crime are being held for months or even years without good reason, in appalling conditions and with limited access to a lawyer. Our calls for effective action at EU level to address the serious inadequacies of pre-trial detention regimes were echoed by Thomas Hammarberg, when serving as the Council of Europe s Commissioner for Human Rights. 3 Our proposals have also received widespread support from civil society and from MEPs. 11. We have reported that: approximately 21% of the total EU prison population is in pre-trial detention and over a quarter of those detainees are foreign nationals; across the EU, people who have not been convicted of any crime are being detained without good reason for months or even years, often in appalling conditions that make trial preparation impossible; some countries laws allow people to be detained for years before trial, others have no maximum period at all; few countries have an adequate review system; non-nationals are far more likely than nationals to suffer the injustice of arbitrary and/or excessive pre-trial detention and be deprived of key fair trial protections; growing numbers are being extradited under the European Arrest Warrant (EAW), only to be held for months in prison, hundreds of miles from home, waiting for trial; 1 Detained without trial: Fair Trials International s response to the European Commission s Green Paper on detention, October 2011, available at 2 See page 24 of our October 2011 report. 3 Human rights comment, 17 August 2011, available at 2

5 Europe s over use of pre-trial detention costs EU countries approximately 5 billion every year 4 (not including wider costs to society when jobs are lost and children are taken into care); and many EU countries justice systems are not ready to make full use of the potentially valuable European Supervision Order, which could save resources and ease the severe overcrowding that blights prisons in over half of all Member States. In response to these problems, we are calling for four reforms: 12. EU legislation on minimum standards: EU legislation is needed to set minimum standards for the use of pre-trial detention in the EU and for regular and effective judicial review of decisions to remand in custody. The ECtHR jurisprudence on Article 5 and pretrial detention sets out general principles which, as signatories to the ECHR, all Member States should observe. However, in practice they are failing to meet these obligations resulting in significant human and financial cost. Only clear, enforceable laws setting basic standards on when, and how, pre-trial detention can be used will force countries to stop imposing detention arbitrarily or for longer than necessary. 13. Effective implementation of the European Supervision Order: The European Supervision Order (ESO) 5, which will come into force at the end of 2012, lays down rules according to which one Member State must recognise a decision on supervision measures issued by another Member State as an alternative to pre-trial detention. These may ease the problems that non-nationals face when applying for release pending trial. However, Member States must implement the ESO in such a way that it represents a real and practical alternative to pre-trial detention. Mutual trust is central to the ESO s success as there is a danger that it will not be used consistently across all Member States but only between those where trust already exists. 14. Deferred surrender under the EAW: Many people who approach FTI for assistance are facing extradition under the EAW, Europe s fast-track extradition system. Deferred surrender should be used in these cases to avoid unnecessary pre-trial detention after extradition. Deferred issue of EAWs and negotiated surrender should also be used to ensure defendants are not surrendered speedily when there is no prospect of a speedy trial and defendants who are able to meet supervision conditions in their home country should be allowed to do so until the case is ready for trial. 15. EU research to establish the viability of a one year maximum pre-trial detention limit: The EU should examine the viability of establishing a flexible one year maximum pre-trial detention limit. The ECHR guarantees anyone subject to a criminal charge the right to a fair and public hearing in a reasonable time. 6 It is FTI s position that it is inherently unreasonable to imprison someone who has not been found guilty of any offence for more than a year, unless there are exceptional prevailing circumstances. Targeted research by the European Commission to help understand the underlying reasons for the wide disparity between EU countries use of pre-trial detention and its 4 See page 6 of our October 2011 report. 5 Framework Decision on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention, 2009/829/JHA, 23 October Article 6(1) ECHR 3

6 varying lengths is needed. This research could then be used to implement a programme of information-sharing and exchange of best practice between Member States. European Parliament debate and resolution on detention 16. On 14 December 2011 the European Parliament held a debate on detention conditions in the EU. 7 The debate demonstrated the high degree of cross-party recognition of the problems with pre-trial detention across the EU and support for reform. Following the debate, on 15 December 2011 the European Parliament passed a groundbreaking resolution which reaffirmed many of FTI s concerns and called on the Commission and EU institutions to come forward with a legislative proposal on the rights of persons deprived of their liberty and to develop and implement minimum standards in the field of detention. 8 FTI is delighted to see the European Parliament taking a strong stand on the need to safeguard fundamental rights in the context of pre-trial detention in the EU. 17. During the debate, a cross-party group of MEPs echoed many of FTI s concerns with pre-trial detention in the EU and the resulting resolution was passed by an overwhelming majority. Key points were: Several MEPs echoed FTI s findings that the use of pre-trial detention is, in some states, virtually automatic and that alternatives to detention are not being used sufficiently. 9 The resolution reminded states that pre-trial detention should be an exceptional measure to be used only when necessary and proportionate and for a limited period of time and that it must be reviewed periodically by a judicial authority. The debate and resolution reaffirmed FTI s concerns about the large numbers of pretrial detainees being held in the EU and in particular the disproportionate numbers of foreign nationals being denied release pending trial. 10 Non-nationals are often deemed a flight risk merely by virtue of this fact. MEPs reiterated FTI s findings that the premature extradition of suspects under EAWs as well as the excessive length of pre-trial detention in some states can lead to extreme and unnecessary hardship for individuals and their families. 11 MEPs expressed concern that the mutual trust required for mutual recognition to succeed is not possible without respect for fundamental rights. 12 They concluded that cooperation between Member States on criminal justice measures such as pre-trial detention can only work if common minimum standards are enforced. 13 The resolution recognised that problems such as prison overcrowding and allegations of poor treatment of detainees may undermine the trust which must underpin judicial cooperation in criminal matters based on the principle of mutual recognition. 18. Representatives of both the European Council and the European Commission participated in the debate at the European Parliament. Each acknowledged that there 7 Minutes of the debate are available at //EP//TEXT+PV ITEMS+DOC+XML+V0//EN&language=EN#pvitem29 8 The resolution is available at 9 Salvatore Iacolino, Baroness Sarah Ludford, Birgit Sippel 10 Baroness Sarah Ludford 11 Baroness Sarah Ludford, Judith Sargentini, Birgit Sippel 12 Jan Albrecht, Judith Sargentini, Birgit Sippel 13 Jan Albrecht, Judith Sargentini, Birgit Sippel 4

7 are problems with pre-trial detention but expressed the view that it is the responsibility of Member States to ensure that pre-trial detention proceedings and detention conditions respect fundamental rights and meet international standards. Unfortunately, however, many Member States are not complying with the ECHR and are failing to safeguard the fundamental rights of those held in pre-trial detention. Responses of international and non-governmental organisations More than fifty NGOs responded to the Green Paper. 15 The United Nations 16 and the Council of Europe also provided submissions. 17 The vast majority of these responses echo FTI s concerns and recommendations. The extraordinary level of response from civil society and beyond shows that the misuse of pre-trial detention raises serious concerns throughout the EU and that urgent action is needed to raise standards. 20. The UN and the Council of Europe both expressed concern about pre-trial detention in Europe, with the former reiterating that pre-trial detention should be a last resort in criminal proceedings and highlighting previous recommendations of the United Nations Human Rights Committee that states should increase the use of alternative measures and consider maximum non-extensible terms of pre-trial detention. 21. Numerous NGOs supported FTI s call for EU legislation to introduce minimum standards for the use of pre-trial detention in criminal proceedings. 18 Existing ECHR obligations as set out and interpreted by the ECtHR were seen as a good basis for this. 19 Several responses identified the lack of minimum standards and the wide differences in pre-trial detention standards across the EU as a serious bar to mutual trust. 20 NGOs generally agreed with FTI that urgent action needs to be taken at the EU level to reduce excessive pre-trial detention and to end the rights infringements that result from this The lack of regular, independent review of pre-trial detention was commonly identified as an issue that needs to be addressed. 22 Our report identified a number of countries that have unacceptable restrictions on the right to a regular and reasoned review of the decision to remand in custody. 23 Our call for a presumption against pre-trial detention 14 All responses are available at 15 Strengthening mutual trust in the European judicial area A Green Paper on the application of EU criminal justice legislation in the field of detention, COM(2011) 327, Brussels 14 June A joint response was provided by United Nations Office of the High Commissioner for Human Rights (OHCHR), the United Nations Office on Drugs and Crime (UNODC) and the United Nations Children s Fund (UNICEF). 17 All responses are available at 18 ECBA, European Network of Councils for the Judiciary, Madrid Bar, General Council of Spanish Lawyers, Amnesty, JUSTICE and International Commission of Jurists, Quaker Council for European Affairs, OSJI, Meijers Committee, ENLACE, Faculty of Law of the University of Bologna, Irish Penal Reform Trust 19 Amnesty, Irish Penal Reform Trust 20 ECBA, Opinion of German Federal Bar, JUSTICE and International Commission of Jurists, Quaker Council for European Affairs, Meijers Committee, Faculty of Law of the University of Bologna 21 ECBA, European Network of Councils for the Judiciary, General Council of Spanish Lawyers, JUSTICE and International Commission of Jurists 22 ECBA, Madrid Bar, Austrian Law Society, JUSTICE, Quaker Council for European Affairs, Faculty of Law of University of Bologna 23 See page 24 of FTI s pre-trial detention report 5

8 unless there are good and valid reasons for a suspect to be detained has also been echoed There was strong support from civil society for an increased use of alternatives to pretrial detention, 25 which has a huge cost both financially for the state and for individuals whose lives and livelihoods can be destroyed if they are denied release pending trial. Various alternatives were put forward by NGOs including the obligation to put up money as surety, a requirement to report to a police station and electronic tagging. 24. FTI has highlighted numerous cases where people are denied release pending trial merely because they are non-nationals. This discriminatory use of pre-trial detention has been corroborated in several of the NGO responses. There is broad support for FTI s call for deferred surrender under EAWs and additional recommendations that the EU move towards a position where an EU national from a different Member State is treated no differently to a national of the prosecuting Member State FTI has noted that, if implemented and used by all Member States, the ESO will go some way to addressing this unfair treatment of non-nationals as well as increasing the alternatives to pre-trial detention available to judges. The potential positive impact of the ESO was also noted by several NGOs, although many responses shared FTI s view that it can only work effectively if properly implemented and if adequate training is provided to judges and to defence lawyers about how to make use of it In addition to EU legislation to establish minimum standards and regular review of detention, some responses have suggested EU legislation is needed to establish maximum pre-trial detention periods. 28 Others argue that, while length of pre-trial detention is an area that needs to be addressed, maximum periods would not in themselves protect against arbitrary detention unless additional minimum standards are introduced requiring prompt and regular reviews that are not merely rubber-stamping exercises. 29 Responses of Member States 27. Twenty-one Member States had responded to the Green Paper as of 28 May A vast majority of these recognised that there are problems with pre-trial detention in the EU and that some form of action is needed. 31 Six Member States have called for EU legislation establishing minimum standards for the use of pre-trial detention, including a 24 ECBA, Quaker Council for European Affairs, OSJI 25 See e.g. ECBA, Madrid Bar, Amnesty, JUSTICE and International Commission of Jurists, Quaker Council for European Affairs, OSJI, Meijers Committee, Justice and Prisons, Irish Human Rights Commission s Response, Irish Penal Reform Trust 26 CCBE, Quaker Council for European Affairs, OSJI, Irish Penal Reform Trust, EPSU 27 CCBE, Quaker Council for European Affairs, OSJI 28 Madrid Bar, Austrian Law Society, ENLACE, Helsinki Foundation for Human Rights (Warsaw) 29 JUSTICE and International Commission of Jurists, Quaker Council for European Affairs 30 See Those that had not responded as at 28 May 2012 were: Cyprus, Greece, Hungary, Lithuania, Luxembourg and Slovakia. 31 Romania, Estonia, Bulgaria, Sweden, Finland, Portugal, Spain, Austria, Netherlands, UK, Italy, Czech Republic, Slovenia, 6

9 requirement to consider alternative measures and to ensure regular reviews of detention. 32 Two Member States also advocated EU-wide maximum remand periods Some Member States acknowledged that there is a wide disparity in pre-trial detention practices across the EU including in relation to review of ongoing detention and maximum periods of detention while awaiting trial. Those states widely accepted that this can have a negative impact on mutual trust FTI was pleased to see some Member States explicitly mention the ESO as an important new instrument to help reduce the use of pre-trial detention, especially in relation to nonnationals. 35 It is now important that each country implement it properly and ensures that it is used in practice. 30. Several Member States suggested that EU-wide legislation is not appropriate in the area of pre-trial detention and that the issues raised can be adequately addressed through the sharing of best practice among Member States. 36 Council of Europe recommendations and other mechanisms were suggested to assist in raising standards across the EU. 31. We welcome the recognition by many Member States that action at EU level is needed to end the excessive use of pre-trial detention. We are delighted that some Member States have called for legislation to be introduced at EU level but we are disappointed that others appear unwilling to acknowledge that there is a problem with the pre-trial detention regime in the EU. 37 Conclusion 32. There is substantial support for EU legislation to set minimum standards for the use of pre-trial detention in the EU and for regular and effective judicial review of decisions to remand in custody. The European Parliament has provided a clear mandate for reform by calling on the Commission and Council to make a legislative proposal. The responses of international and non-governmental organisations overwhelmingly support FTI s recommendations for action to address excessive and arbitrary pre-trial detention in the EU. Many Member States have also acknowledged that there are problems with pre-trial detention in the EU. 33. As the Commission notes in its Green Paper, detention issues come within the purview of the European Union as [...] they are a relevant aspect of the rights that must be safeguarded in order to promote mutual trust. 38 There is a clear legal base for legislation in this area under Article 82(2)(b) of the Treaty on the Functioning of the European Union, as pre-trial detention (indeed, all detention in the criminal justice context) engages with the rights of individuals in criminal procedure. 32 Romania, Estonia, Bulgaria, Sweden, Finland, Portugal 33 Romania, Estonia 34 Romania, Estonia, Spain, Sweden, Slovenia, Austria, 35 Netherlands, Sweden, Germany, Czech Republic 36 UK, Netherlands, Slovenia, Italy, Czech Republic, Belgium 37 Ireland, Poland, Germany, Denmark, Latvia, Malta, Belgium, France 38 Strengthening mutual trust in the European judicial area A Green Paper on the application of EU criminal justice legislation in the field of detention, COM(2011) 327 final, 14 June 2011, p.3 7

10 34. Varying standards in pre-trial detention across Europe not only weaken trust between Member States, they also undermine the EU s justice and home affairs policy mandate. Legislation in the field of pre-trial detention is the natural continuation of the EU s roadmap for strengthening procedural rights. 39 Poor standards of protection for basic rights across the EU erode the trust necessary for mutual recognition and undermine confidence in existing and forthcoming mutual recognition measures. 35. The Commission s Green Paper was an important first step in raising standards in the use of pre-trial detention. We look forward to the Commission s imminent response and to working with EU institutions to bring about concrete action to tackle this widely recognised and urgent problem, which represents a clear violation of the presumption of innocence and of Member States obligations under the ECHR. Fair Trials International May Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, (2009/C 295/01), 30 November