EU waking up to pre-trial detention injustice

Public Service Europe - Jago Russell

Lengthy pre-trial detention can deprive innocent people of their freedom for months on end. Jago Russell hopes that an EU green paper is the first step towards solving the problem

Over the past 10 years the European Union has focused its criminal justice policy on enhanced cooperation between police and judicial authorities in an attempt to create an area of freedom, justice and security in Europe. The cornerstone of this cooperation has been mutual trust, the idea that all EU states can be trusted to deliver justice – after all, the 27 countries which make up the EU have all signed up to the standards set out in the European Convention on Human Rights. In reality, though, standards vary so widely across the EU that this trust sometimes looks like little more than naivety or blind faith.

In the last two years, the EU seems to have started waking up to this. Its ongoing work to safeguard basic defence rights will certainly take us a step closer to a Europe in which there is some foundation for mutual trust and cooperation. This month, it has taken another important step, recognising one of the greatest threats to a common area of freedom justice and security: the scandal of excessive and unjustified pre-trial detention in Europe. It has issued a long-awaited green paper which promises a detailed review of the alternatives to pre-trial detention and what the EU can do to promote these, to strengthen the effective monitoring of prison conditions and end excessively long pre-trial detention.

At any one time, the European Commission estimates that 4,500 people are being held in European prisons that have not been convicted of any criminal offence. People are being detained for months or even years while they await trial, often in appalling conditions without access to the basic facilities they need to prepare a defence. All too often courts apply stereotypical reasons to order detention pre-trial, failing to consider the suspect's personal circumstances. Frequently, completely irrelevant factors are taken into account. In a recent case in Greece, bail was denied to one of Fair Trials International's clients in part because he had failed to show remorse for the offence he was charged with. But he has consistently maintained his innocence and had not been convicted of anything. This is clearly an affront to the presumption of innocence.

We are not talking, here, about a week or two in prison while the lawyers and judges prepare for trial. Pre-trial detention can last for years. In Spain, for example, pre-trial detention is allowed for up to four years. This is not just a theoretical possibility, available to be used by courts in only a tiny handful of the most extraordinary and complicated cases. These extraordinary powers are in fact being used in an almost routine way. At Fair Trials International we see cases of people being detained for years on end on an almost daily basis. It is not just the suspects but also their families that suffer, often losing the main bread-winner and left in dire financial circumstances unable to afford prison visits. Faced with these enormous emotional and financial challenges, families frequently fall apart, homes are repossessed by banks and, in some cases, parents lose custody of their children.

Often overlooked is the impact that pre-trial detention can have on the fairness of the trials that ultimately take place. Isolation from your support base, inadequate access to lawyers and interpreters, overcrowded and insanitary cells, violence among prisoners, abuse from prison staff and inadequate monitoring and complaint systems – all of these things make it more difficult for a person to prepare their defence. Time and again we are told that people are pleading guilty to offences they did not commit because otherwise they could end up spending longer in prison awaiting trial than would be given as a sentence after a guilty plea.

There are, of course, some sensible, practical steps that can be taken to address this problem. Initiatives could be supported to give courts a wider range of powers to make sure that people don't abscond. Enforcing bail conditions and electronic tagging may be expensive but costs states far less than keeping people in prison for months on end. A new EU law which will allow one EU country to ask another to enforce conditions imposed on people awaiting trial could make a huge difference to those arrested in a country other than their own.

The EU is right to recognise 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". But solving the problem will require more than recognition and consultation. Let's hope that this green paper is the first step towards a Europe in which innocent people are no longer unnecessarily deprived of their freedom for months on end as a matter of routine.