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

2. 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

3. 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.

4. 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