The European Commission has begun a consultation process to explore the impact of pre-trial detention in the European Union (EU). The particular focus, summarised in its Green Paper, is how pre-trial detention issues affect judicial co-operation generally within the EU.
The issue is being debated at the moment in the UK, with a group of MPs urging an overhaul to international extradition rules. The Joint Committee on Human Rights has published its report on The Human Rights implications of UK extradition policy (read summary here), in which it concludes that the current statutory framework does not provide effective protection for human rights.
The EU has an interest in these questions, given the fundamental rights which is seeks to uphold. Article 4 of the EU Charter mirrors Article 3 of the European Convention on Human Rights, prohibiting torture and inhuman and degrading treatment.
The Commission has created a package of measures on the procedural rights for people suspected and accused of criminal conduct in the EU, which it aims to improve judicial co-operation. At the heart of the consultation is the concern of the Commission that this package of measures will be undermined by a lack of mutual trust between states, due to differing levels of protection for those in pre-trial detention. Prison overcrowding and allegations of poor treatment of detainees may undermine this trust, leading some Member States to be reluctant to enforce decisions made by others. Mutual co-operation can only be successful is Member States can trust each other to uphold prisoners’ fundamental rights.
The package of measures
New instruments which the Commission has created rely upon and are aimed to encourage EU wide mutual trust between judicial authorities. They are due to be transposed (enshrined in national law) in 2011 and 2012. One example is the European Arrest Warrant, which requires Member States to surrender persons wanted for trial and to serve sentences. Where surrender would lead to a person being imprisoned in unacceptable conditions, fundamental rights and human rights challenges may succeed. Similar arguments apply to the transfer of prisoners scheme, which transfers prisoners back to the country of their nationality or habitual residence. Other measures include mutual recognition of probation decisions and European Supervision Orders.
Length of pre-trial detention
The Commission is greatly concerned about this. The length of time a person may be incarcerated for before being tried varies between jurisdictions, with some not even having a maximum length, although the UK does have such limits. Non-nationals in particular are at risk of being refused bail on the basis that they are a flight risk.
The low standard of conditions to which prisoners are exposed in some Member States is another significant concern. Overcrowding in some states leads to prisoners being held in degrading conditions, for instance in very cramped accommodation.
The Commission is seeking responses to the 10 questions posed in the Green Paper from a veriaty of sources:
…the Commission is interested in receiving feedback, comments and replies from practitioners, such as judges, prosecutors and lawyers and other legal practitioners, directors of prison administrations, people working in the social and probation services, pre-trial detention centres and prisons, academic circles, relevant NGOs and government bodies.
The deadline for submission is 30 November 2011. Responses can be sent either by email: JUST-CRIMINAL-JUSTICE@ec.europa.eu; or post: European Commission, Directorate-General Justice, Unit B1 – Procedural Criminal Law, MO59 03/068, B-1049 Brussels, Belgium.
Human rights groups and those campaigning for prisoners’ rights have welcomed the Commission’s attention to the problems faced by those on remand across the EU. Prisoners’ welfare is often a low priority of governments, not being a topic which interests large swathes of their electorates. Prisoners who are imprisoned outside the states in which they have nationality or are ordinarily resident can face additional problems, such as language barriers, isolation from family and friends and a lack of understanding of the local law.
Catherine Heard, Head of Policy at Fair Trials International, a human rights charity which helps people facing trial in a country which is not their own, said:
At Fair Trials International we’re regularly contacted by people who have spent months or even years in prison awaiting trial in another EU country. It’s common for people to be held in appalling prison conditions, without access to a lawyer or an interpreter, making trial preparation impossible. This consultation is a sign that the EU has woken up to this scandalous situation and realised it needs to take action or risk further damage to the ‘mutual recognition’ concept on which the European Arrest Warrant is based.
You can read FTI’s press release here.