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Posted by: Gherson Extradition

Prisons in the European Union (EU) are constantly dealing with overcrowding with over a hundred thousand suspects currently held in pre-trial detention alone. EU authorities admit that the issue is reaching a critical point and has to be tackled urgently and more effectively.


In a speech at the Annual Conference of European Criminal Law Academic Network, in April 2016, Vera Jourova, the EU Commissionerfor Justice, Consumers and Gender named pre-trial detention the EU priority area (see full speech here). Jourova has highlighted that: "[...] pre-trial detention should only be a last resort solution, however it is often used too early." She has also stressed that: "The lack of minimum procedural safeguards for pre-trial detention can hinder judicial cooperation. Poor detention conditions can indeed lead to refusal of extradition under the European Arrest Warrant". It is also alarming that "Conditions in pre-trial detention are often worse than those in regular prisons."


Indeed, in its recent judgment in the joint cases of Aranyosi and Caldararu (C-404/15 and C-659/15 PPU) the Court of Justice of the European Union (CJEU) has ruled that, prior to fulfilling other Member State's request under the European Arrest Warrant (EAW), the issuing EU Member State is under a firm obligation to undertake its own scrupulous investigation of whether, if extradited, the requested person's human rights would be observed in line with the European Convention of Human Rights (ECHR). The court has confirmed that consideration should be given as to whether extradition should be refused if there is a real risk that the requested person will be subjected to a lengthy pre-trial detention or intolerable detention conditions. Fair Trials International note that: "In practical terms, the judgment obliges judicial authorities to defer execution of an EAW until the requesting Member State has provided sufficient information to make clear whether the requested person's fundamental rights are at real risk of infringement. If sufficient information is not forthcoming within a reasonable period of time, the judicial authority may decide to end surrender proceedings." Therefore, it is in the requesting EU Member State's interest to act quickly and provide all necessary information and assurances to the issuing state if it wants the EAW be executed swiftly.

The latest Policy Report on Pre-trial Detention in the EU was initiated by Fair Trials International and published on 26 May 2016. This comprehensive document incorporates data collected across 10 EU Member States from interviews with detained persons, judges and prosecutors, lawyers' surveys, observations of hearings and case-file reviews. The report states that with some jurisdictional variations, the EU Member States rely on a few common legal reasons to justify pre-trial detention. These include flight risk, a potential intimidation of witnesses or contamination of evidence, risk of committing further offences or causing public disorder, or, quite exceptionally, the need to protect the safety of a person under investigation. However, the report also reveals that often these reasons are used very broadly and applied generally, failing to properly consider individual circumstances or ignoring specific evidence produced by defence lawyers. The report also found that often judges were reluctant to impose alternatives to pre-trial detention such as house arrest or electronic curfew. Due to lack of reliable monitoring and enforcement procedures, insufficient funding and inexperience, judges and prosecutors were sceptical about the efficacy of such alternative measures and continued to rely instead on pre-trial detention. Consequently, all these factors were summed up into one main conclusion that pre-trial detention in the EU is used excessively, "withoutadequate justification", and falling "well below ECHR standards of justice".The report also echoes the EU Commissioner's concerns that unjustified pre-trial detention practices undermine "the operation of vital mutual recognition measures such us the European Arrest Warrant" and calls for a unified legislation which would codify "existing ECHR standards" and be binding on all EU Member States.

Finally, the Policy Report has triggered an immediate reaction from the European Parliament members and was followed up by a cross-party MEPs group letter addressed to Vera Jourova. The letter states that"the lack of a harmonised approach with regard to pre-trial detention procedures impacts on the functioning of mutual recognition and therefore requires EU action". The letter urges the EU Commissioner to hasten the European Commission for the "submission of a legislative proposal on pre-trial detention [...], and [t]he submission of legislative proposals clarifying the Framework Decision on the European Arrest Warrant [...]."

These recent calls for imminent action demonstrate that current EU criminal justice policies adopted by the EU institutions are not sufficient to cope with the increasing issue of prison overcrowding within the EU due to excessive use of pre-trial detention. There is obvious urgency for unified legislation, which would set out procedural guidance to assist domestic judges in observing the fair trial principals, and other fundamental rights imbedded in the ECHR and encourage a move away from over reliance on pre-trial detention.

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