The report was prepared by Fair Trials following a two-year study across 10 European countries.

Over 100,000 people are currently held in pre-trial detention in jails across Europe. A new system is needed to make pre-trial detainment a last resort.

In a new report titled "A measure of last resort? The practice of pre-trial detention decision making in the EU," prepared with the help of contributions of NGOs and academic partners from 10 European countries, including Antigone, speaks for itself.

After an in-depth study conducted over two years, the conclusions are not very positive: there is an excessive use of pre-trial detention across Europe, and the strict limitations on the use of this measure are too often not respected.

There is also a surprising lack of information on the practical operation of procedural rules designed to ensure that detention is only used when strictly legal and necessary.

There is thus the need for regional action, which should take the form of an EU legislative instrument that is binding on member states and codifies existing standards set out by the European Court of Human Rights but currently inaccessibly buried in an ever-growing corpus of case law.

In theory and in practice

Pre-trial detention is supposed to be an exceptional measure, only to be used as necessary and proportionate and in compliance with the presumption of innocence and the right to liberty.

Its use is indeed only acceptable as a measure of last resort, in extremely limited circumstances. Unfortunately, in the EU as around the world, these limitations are not always respected.

Today there are 120,000 people in pre-trial detention in Europe. In other words, one detainee in five is deprived of his liberty before the conclusion of the criminal case against him.

Mind the terms of use

Furthermore, procedures regarding the use of pre-trial detention are too often violated. Common breaches concern the equal treatment of prosecution and defense, the right to access to a lawyer, the adequacy of translation and interpretation as well as insufficient defense access to case materials essential for challenging pre-trial detention.

The report also insists on the lack of reviews of pre-trial detention measures, on the fact they are not conducted automatically and sometimes even without the suspect himself.

“I never participated during the hearings. The only time I appeared before the court was when the pre-trial detention was being prolonged. I was never asked anything. Never.” - Daniela, an acquitted pre-trial detainee in Romania.

The importance of alternatives

A variety of alternatives to detention are available and utilized across the EU, usually comprised of a selection of sureties, travel bans and other geographic and residency limitations, judicial or police supervision, and in some countries, electronic monitoring and house arrest.

Nevertheless, alternatives to detention remain little used in Europe: this is true for eight out of 10 of the countries studied, with Ireland, England and Wales as exceptional examples of relatively good use of alternatives to detention.

In some countries, legislation is drafted in such a way that it discourages the creative use of alternatives to detention; in others, mandatory pre-trial detention still exists in relation to certain classes of allegations. In Italy, for example, pre-trial detention is still mandatory and presumptively applied in offenses related to mafia crimes, terrorism, and subversive association.

Furthermore, court actors lack sufficient faith and experience in administering available alternatives, meaning they remain underused even if practical and legal challenges are overcome.

Focus on Italy

Regarding Italy, the assessment is not much different than the European one. Breaches noticed at the European level are present at the national level too: the Antigone's report on pre-trial detention denounces the unequal treatment between the prosecution and the defense, as well as the lack of justification for the use of pre-trial detention.

Italy does not do better on the use of alternative measures, since most judges and public prosecutors do not believe in their efficiency. Scenarios of unjustified and abusive pre-trial detention are very common regarding vulnerable population – that is to say, non-European citizens.

Italy is currently among the worst countries in Europe regarding pre-trial detention use, with 34.5 percent of detainees waiting for a trial. To avoid an umpteenth condemnation by the European Court of Human Right for violation of Article 5 of the Convention on Human Rights, Antigone formulated some recommendation to public authorities.

Among other things, Antigone suggest to reduce the gap of information available to prosecution and defense before the first hearing and to increase access to translation services for defendants who do not speak Italian. All of them should be able to understand and take an active part into the legal process regarding their own case.

Antigone does not ignore the improvements made the Italian legislation, but the recent reforms to the law are not sufficient to fully guarantee the rights of suspects and detainees.

The need to take action

The Fair Trials report concludes with some crucial recommendations to European countries and European institutions in order to put an end to abusive and unjustified pre-trial detention. It is an issue to consider with close attention, because it directly threatens human rights and, most specifically, the right to a fair trial.

Read the full report here. National reports - including the one for Italy, realized by Antigone - can be found here.