Pre-trial detention decision-making: A European research project Libby McVeigh, Fair Trials 29 September 2015

Background EU Procedural Rights Roadmap (2009) Green Paper on Detention Fair Trials – ‘Detained without Trial’ – Case studies European Parliament support – Resolution December 2011 “calls on the Commission and EU institutions to come forward with a legislative proposal on the rights of persons deprived of their liberty” Expert meetings – Hungary, Poland, Greece, Lithuania, France Letter to Justice Commissioner – September 2013 “urge the Commission to use its powers to introduce a proposal to include the development, production and dissemination of statistics on pre-trial detention in the European statistical programme to assess the use of alternatives to, and length of, pre-trial detention in Member States and the numbers of cases in which non-nationals are permitted to return home pending trial.” No legislative developments

Research Project Funded by European Commission Criminal Justice Programme. Objective: To inform the development of future initiatives aiming to reduce the unnecessary use of pre-trial detention within the EU by building a unique evidence-base regarding causes of overuse of pre-trial detention and good practice. Approach: Evaluating practice of pre-trial detention decision-making against ECHR standards as determined through ECtHR case law. Methodology: 10 countries – England & Wales, Greece, Ireland, Italy, Hungary, Lithuania, the Netherlands, Poland, Romania and Spain Defence practitioner survey Hearing monitoring and case-file reviews Interviews with judges and prosecutors Outputs: 10 x country reports, to support domestic advocacy; 1 x regional report, to support EU level advocacy.

Results The decision-making process Inadequate defence access to case-file and limited time to prepare for hearings Lack of effective legal representation Unequal treatment of prosecution and defence Short hearings The substance of pre-trial detention decisions Significance of gravity of offence / length of potential sentence Use of previous convictions to substantiate reoffending risk Inadequate case-specific reasoning Use of alternatives to detention Lack of judicial trust in alternatives Underuse of electronic monitoring Treatment of non-nationals Good practice: use of bail in Eng & Wales/ Ireland, but not without problems – excessive use of conditions Effectiveness of review mechanisms/ special diligence Shift of burden of proof after first decision Decisions on the papers/without defendant present Lack of special diligence and limited judicial oversight Reform initiatives Domestic reform initiatives European Commission Impact Assessment