The Eu’S Mutual Rules On Detention: How Serious Are Fellow Member States Nigh Protecting Key Rights?

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

On 5 Feb 2014, the Commission published a damning report on its ‘common rules on detention’ confirming that, at best, exclusively xviii of 28 Member States possess got implemented whatever of the instruments. This is a quantitative non qualitative study: in that place has been no evaluation of how good these rules possess got been applied or whether they possess got improved the lot of individuals.

The piteous degree of implementation of these real basic commitments to amend the rights of detainees is of concern. Every year, tens of thousands of European Union citizens are prosecuted for alleged crimes or convicted inwards or together with so other Member State of the European Union yet in that place is pregnant evidence of unacceptable disparity inwards standards of detention inside Europe. Fair Trials International (FTI) has long noted the beingness of lengthy pre-trial detention together with the inconsistent availability of alternatives to detention such every bit electronic tagging every bit good every bit “overcrowding, violence, piteous healthcare together with lack of facilities”. Likewise, the one-time Council of Europe Commissioner on Human Rights, Thomas Hammarberg, has described the utilization of pre-trial detention every bit “virtually systematic inwards a number of European countries" alongside rates of 42% inwards Italy. The structural together with systemic employment of overcrowding inwards the Italian prison theater scheme led to a airplane pilot judgment past times the ECtHR inwards 2013 which condemned Italia for inhuman together with degrading handling inwards overcrowded jails. The evidence of the require for activity is clear.

Mutual recognition together with a lack of mutual trust

To start at the beginning, the term ‘common detention rules’ relates to iii mutual recognition Framework Decisions (FD) agreed past times the European Union to last implemented past times 2011 together with 2012 past times all Member States. They shape purpose of a broader judicial cooperation agenda which has focussed on the mutual recognition of judicial decisions together with the approximation of law. The European Arrest Warrant [EAW] is the most notorious of these instruments.

Mutual recognition allows judicial decisions to ‘move’ freely betwixt European Union Member States based on the presumed beingness of “mutual trust” betwixt them. The approach has been predominantly prosecutorial, but, every bit sense alongside the functioning of the EAW has demonstrated the fallacy of assumptions most trust, in that place possess got been increased efforts to works life specific private safeguards to back upward the mutual recognition agenda. In 2009, the Council of the European Union laid out a ‘Roadmap’ for harmonizing or together with so criminal procedural standards to “enhance citizens' confidence that the European Union together with its Member States volition protect together with guarantee their rights”. To date, iii Directives (the Directive on the correct to interpretation together with translation inwards criminal proceedings; the Directive on the correct to information inwards criminal proceedings; together with the Directive on the correct of access to a lawyer) possess got been agreed alongside a farther package lately proposed.

However, the European Union had already taken activity inwards abide by of European Union citizens who were non-residents inwards a Member State where they expression upward criminal proceedings every bit it was recognised that, also often, they may destination upward inwards detention where residents may not. This tin occur pre-trial, because of the fright of flight, together with also at sentence, where non-custodial sentences may last considered inappropriate. The iii instruments agreed were:

·         The Framework Decision on the Transfer of Prisoners to last implemented past times 5.12.11. It allows a Member State to execute a prison theater judgement issued past times or together with so other Member State against a somebody who remains inwards the firstly Member State. It also establishes a scheme for transferring convicted prisoners dorsum to the Member State of nationality or habitual residence (or to or together with so other Member State alongside which they possess got closed ties) to serve their prison theater sentence.

·         The Framework Decision on probation together with alternative sanctions to last implemented past times 6.12.11.  It applies to many alternatives to custody together with to measures facilitating early on release (e.g. an obligation non to come inwards sure enough localities, to bear out community service or instructions relating to residence or preparation or professional person activities). The probation conclusion or other alternative sanction tin last executed inwards or together with so other Member State, every bit long every bit the somebody consents.

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

In relation to detention conditions, a Commission Green Paper on Detention was also published inwards 2011 acknowledging that “excessively long periods of pre-trial detention are detrimental to the individual, tin prejudice judicial cooperation betwixt the fellow member states together with produce non stand upward for the values for which the European Union stands”. Pragmatically, mutual trust is undermined past times inconsistent together with unfair detention arrangements together with the European Union needs to address this.

“Fewer than one-half of European Union Member States possess got implemented mutual rules on detention”

It is inwards 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: exclusively xviii Member States possess got implemented it. Austria, Belgium, Czech Republic, Denmark, Finland, France, Croatia, Hungary, Italy, Luxembourg, Latvia, Malta, Netherlands, Poland, Romania, Slovenia, Slovakia together with the UK. Only Denmark, Finland, Italy, Grand Duchy of Luxembourg together with the United Kingdom of Great Britain together with Northern Ireland had implemented it past times the deadline. This is the exclusively musical instrument the United Kingdom of Great Britain together with Northern Ireland has implemented.

·         FD on probation together with alternative sanctions: exclusively xiv Member States possess got implemented it - Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, together with Slovakia.  Only Kingdom of Denmark together with Republic of Finland had implemented it past times the deadline.

·         European Supervision Order: exclusively 12 Member States possess got implemented it - Austria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, Slovakia. Only Denmark, Finland, Republic of Latvia together with Poland had implemented it past times the deadline.

In relation to the implementation legislation itself, the Commission has at in 1 lawsuit highlighted or together with so key concerns arising from its analysis which volition require to last addressed past times all Member States:

·         Member States must laid out an effective physical care for to make a purpose to “the somebody concerned inwards the transfer process” nether the diverse FDs.

·         The regulation of mutual trust is to last respected past times achieving “the correct balance” betwixt abide by for the judgement originally imposed together with the legal traditions of Member States.

·         Member States must properly implement the duty to furnish information most the judgement to avoid any differences discouraging utilization of the instruments.

·         The Commission’s thought is that adding additional grounds for refusal together with making them mandatory “seem[s] to last both opposite to the missive of the alphabet together with spirit of the Framework Decisions”.

·         The fourth dimension limits are to last respected together with should last exceeded exclusively inwards special circumstances”.

·         Those provisions which link the FD together with the EAW should last implemented. For example, Article 21 (which allows for the render of a somebody past times EAW if s/he has non complied alongside an ESO) possess got non properly been implemented. The Commission describes this every bit ‘regrettable’ every bit Article 21 “would last real useful to allow persons awaiting trial for relatively little fry offences to become home”

·         The Commission rules the declarations made past times 4 Member States (Ireland, Malta, Netherlands together with Poland) inwards relation to transitional provisions on the transfer of prisoners invalid because they were made subsequently the adoption of the FD.

Those who possess got transposed the instruments are even together with so requested “to review together with align their national implementation legislation alongside the provisions of the Framework Decisions”.

Enforcing compliance together with creating trust

The iii FDs are interconnected together with linked to the EAW. In its press release, the Commission confirms pragmatically that

“The rules [are].. an essential chemical component of a mutual European surface area of judge ….[and]… of import tools to farther social rehabilitation of prisoners together with trim back the utilization of pre-trial detention. Their proper implementation is crucial.”

They also possess got “the potential to trim back prison theater overcrowding together with trim back prison theater budgets”.

There is an evident require for swift activity to address these failures. From the perspective of the ‘suspect’, the non-adoption of the ESO past times many Member States is concerning every bit it is a crucial ‘flanking measure’ for the EAW. FTI has long campaigned on the number of bail inwards the EU, producing clear evidence of discrimination inwards the functioning of decision-making (e.g. run across the House of Lords report inwards 2007 on the European Supervision Order). The excessive together with unfair utilization of detention for the non-resident suspect also undermines the correct to a fair trial because it affects the suspect’s exercise of fair trial rights every bit good every bit the presumption of innocence. These key rights are enshrined inwards Article 5 together with half-dozen ECHR together with Articles 6, 47 together with 48 of the European Union Charter of Fundamental Rights together with merit active protection inwards practice. From the prosecution perspective too, cooperation cannot last made effective alongside such partial transposition.

 So what tin last done? Infringement activity against Member States is non possible until 1 Dec 2014 because of Article 10 of Protocol 36, which provides for a five-year waiting catamenia earlier the Commission tin sue Member States for non-implementation of European Union ‘third pillar’ (criminal police together with policing measures) adopted earlier the entry into forcefulness of the Treaty of Lisbon, such every bit these FDs. Whether the Commission volition bring such activity at that bespeak remains to last seen.

However, in that place is a broader bespeak at stake: volition these laws last used fifty-fifty if the FDs are implemented domestically together with volition they brand whatever difference? The Commission’s report notes that the “limited figures available demo that the Transfer of Prisoners is already used whereas no transfers possess got yet taken identify nether Probation together with Alternative Sanctions together with European Supervision Order”. We require 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 final result of a lack of agreement (see FTI’s report) or weaknesses inwards 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 non been the production of preliminary study of the weather condition to which it was meant to apply volition non reply accurately to social needs. Consequently, the physical care for of making effective laws must become beyond statistics together with information gathering to consider the human impact of its implementation.


Barnard & Peers: chapter 25

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