Pre-trial detention and EU law: Constitutional constraints,legislative reluctance and non-binding norms

Abstract

Pre-trial detention has been at the centre of the European Union’s policy debate in the last few years. Suggestions to adopt a set of harmonised rules on pre-trial detention within the EU, so far, have been met with resistance. This article begins with an analysis of the existing body of norms set by the EU procedural rights Directives, suggesting how they could enhance the rights of pre-trial detainees. It is argued that this current piecemeal approach to pre-trial detention in the EU remains deeply dissatisfying. The article then moves on to dissect the limits of EU competences to legislate on this field with a view, in particular, to reduce pre-trial detention. It is suggested that the scope of the Union’s normative intervention can be either functional (instrumental to judicial cooperation and mutual trust) or principled (focused on the rights of persons detained, irrespective of its relevance for inter-state cooperation). The article goes on to analyse the recently adopted European Commission’s Recommendation on pre-trial detention. In doing so, it tests the ability of this text to incorporate ECtHR’s case law into EU law and suggests that the Court of Justice may be nudged to develop a bolder interpretation of secondary legislation in accordance with some guidelines included in the Recommendation. The contribution conclusively reflects on the possible way forward, by discussing the constitutional constraints deriving from a strict reading of Article 82 Treaty on the Functioning of the EU and the strategies to get around the main ‘roadblocks’ in the path towards harmonisation and greater protection of fundamental rights behind bars.

Introduction

While deprivation of liberty before trial is used in almost every jurisdiction across Europe, ¹ the harmonisation of rules on pre-trial detention has proven surprisingly difficult at the EU level. ² Thus far, attempts at bringing about a set of common norms within the European judicial space have been unsuccessful. ³ To date, no comprehensive EU framework regulating arrest or detention on remand has seen the light of day. ⁴ Yet, paradoxically, pre-trial detention is in many ways central to the functioning of EU criminal justice ‘machinery’. On the one hand, the most important and widely used tool of cooperation in criminal matters, that is, the European Arrest Warrant (EAW) postulates the imposition by national authorities issuing such a warrant of pre-trial measures impinging on the right to liberty. On the other hand, other EU instruments of cooperation exist whose goal is to reduce the resort to custodial measures before a final conviction. These include, notably, the so-called European supervision order (ESO) introduced in 2009. Through the Schengen agreement, EU countries have established an area without internal borders. This ‘peaceful revolution’ ⁵ ushered in a new generation of tools of inter-state cooperation which operate according to a compensatory logic, ⁶ in such a way as to prevent suspects from taking advantage of their freedom of movement to flee or abscond from trial. Against this background, pre-trial detention has become paramount in the context of the increasing network of cooperative instruments that offer a shared platform for judges, prosecutors and police within the area of ‘Freedom Security and Justice’ (AFSJ). ⁷ Both the EAW and its alternatives logically postulate a State’s ability to lawfully arrest suspects and hold them in custody.

The power to incarcerate justice-involved individuals prior to trial has substantially evolved under EU law. In practice, EU cooperation instruments have enhanced the prerogatives of national law enforcement authorities by expanding their outreach across borders. More specifically, in light of the principle of mutual recognition, it is easier to lock up fugitive suspects and bring them to trial even when they took shelter in a different jurisdiction. So far, however, the Union has been reluctant to engage with a detailed regulation of what makes an arrest warrant lawful, let alone providing a set of rules on pre-trial detention more broadly. Article 82 of the Treaty on the Functioning of the EU (TFEU) stipulates that the Union has competence to set minimum standards in the field of fundamental rights within ‘criminal procedure’, ⁸ thereby hinting at the possibility that pre-trial detention may be the subject of EU legislative action. After all, it seems hard to think of any procedural measure that affects individual rights more than pre-trial detention. Nonetheless, the question of whether this Treaty provision allows the EU to lay down common standards pertaining to various aspects of detention (before, during and after trial) remains debatable. As it will be explained, it is far from clear whether harmonisation in this field may address purely domestic situations; that is, instances in which pre-trial detention has no link with cross-border cases. At the same time, the lack of common rules governing the use of pre-trial detention is problematic on at least three accounts.

First, recent empirical findings suggest that the failure to rein in the use of pre-trial detention at the EU level is partly responsible for the uncontrolled increase of EAWs issued across the Union. ⁹ While the EAW is often presented as a ‘success story’, evidence points to an improper use of this instrument. This may be due to the limited scrutiny into the lawfulness and proportionality of detention orders issued in the prosecuting state, one that stems from the ‘no inquiry’ rule underpinning all mutual recognition instruments. ¹⁰ The lack of restraint in the use of the EAW in cross-border cases is troublesome in itself and may contribute to the expand/legitimise the use of pre-trial detention in domestic proceedings. If a person is sought via an EAW, he/she has more chances of being detained upon surrender, in that their very presence abroad is regarded as an indicator of their risk of flight.

Second, the legislative inertia of EU bodies must be assessed in light of the ‘extensive use’ (or, for some, the ‘abuse’) of deprivation of pre-trial detention across many Member States. ¹¹ Some EU Member States continue to display a substantial rate of pre-trial detainees, even when their prison population is decreasing or remains stable. This state of affairs is partly to blame on the high number of foreign (EU) nationals held in custody without a final conviction: this group of justice-involved individuals is often regarded as non-eligible for bail and considered at risk of flight due to their status and/or social characteristics. For this reason, the limited use of the ESO can be seen as a missed opportunity to avoid detention in favour of less intrusive measures vis-à-vis persons subjected to a criminal investigation. After all, this instrument was adopted with the specific goal of operating as a substitute for pre-trial detention for ‘EU citizens, who are not residents in the territory of the Member State where they are suspected of having committed a criminal offence’. ¹²

Third, the massive use of incarceration is often coupled with lengthy periods spent in custody. ¹³ In this connection, the absence of common rules on the time limits and the grounds that justify pre-trial detention may be detrimental in terms of mutual trust. ¹⁴ When no legal guarantees are provided as regards the respect of precise time limits to hold a person in jail, the requested State may question the opportunity to cooperate with the prosecuting bodies. This risk was epitomised by an important decision of the Italian constitutional court issued in 2008; ¹⁵ though the EU judicial cooperation system was still in its infancy at the time, most of the issues underscored by the Italian supreme judges remain unsolved to this day. Similarly, the material detention conditions of those held in pre-trial detention in the state of prosecution may be a reason of concern, so much so that cross-border transfers of suspects could be halted in accordance with the case law of the Court of Justice (CJEU) when they fall foul of the prohibition of inhuman and degrading treatment (Article 4 of the EU Charter of Fundamental Rights). ¹⁶

As it will be explained, since the early 2010s, the EU has developed a set of procedural safeguards which, by allowing a greater involvement of defence lawyers in both domestic and cross-border proceedings, may have the effect of restraining the use of pre-trial detention by national courts. However, none of the Directives adopted based on the EU roadmap on procedural rights is explicitly intended to protect the right to liberty. ¹⁷ Due to a lack of consensus among the different Member States, the only outcome of the normative process (started with the Roadmap in late 2009) has been the adoption of a soft law document: the 2022 Commission Recommendation on pre-trial detention and material detention conditions. The failure to act with a binding text is revealing of the great diversity between legal cultures in Europe when it comes to pre-trial detention. Although the case law of the European Court of Human Rights (ECtHR) has progressively developed a set of procedural safeguards applicable to all remand proceedings, a huge number of differences persist in the approach to both the substantive rationale of pre-trial detention and the judicial culture surrounding its use. The absence of a comprehensive EU legal framework in this field is likely to become even more worrisome in the near future, considering two major developments. On the one hand, the establishment of the European Public Prosecutor’s Office (EPPO) has raised new concerns with respect to the use of deprivation of liberty in cross-border cases ¹⁸ : the EPPO Regulation contains no specific provisions as regards the use of pre-trial detention. ¹⁹ Instead, the main avenue to obtain deprivation of liberty in the cases falling within the competence of EPPO remains the EAW. On the other hand, current trends towards a rule of law backsliding in several parts of Europe ²⁰ (discernible by key markers such as the elimination of checks and balances on the government powers, the curtailment of judicial independence, and the decay of political pluralism) have increased the use of pre-trial detention to target political opponents. ²¹ More generally, pan-European civil society bodies warn that a rise in pre-trial detention rates can be a sign that rule of law bulwarks are being undermined. ²²

Against this background, the present contribution begins with an analysis of the existing EU norms on procedural safeguards. These may work to enhance the rights of pre-trial detainees and act as a legal constraint in the context of remand proceedings. The current piecemeal approach to pre-trial detention in the EU, however, remains deeply dissatisfying. The lack of a comprehensive set of binding rules on pre-trial detention is likely to impact negatively on the protection of fundamental rights when an EAW is issued. In particular, the adoption of harmonised legislation regarding the substantive prerequisite of pre-trial detention seems badly needed so as to create a level playing field across the Member States. For this reason, the article goes on to dissect the limits of EU competence to legislate on this field and cut down detention. It starts with an analysis of the recently adopted European Commission’s Recommendation on pre-trial detention. In doing so, it tests the ability of this text to incorporate ECtHR’s case law into EU law and suggests possibilities of spurring the CJEU to develop a bolder interpretation of secondary legislation impacting remand proceedings. The article conclusively discusses the possible way forward by reflecting on the constitutional constraints deriving from a strict reading of Article 82 TFEU and the possible strategies to get around the main ‘roadblocks’ in the path towards harmonisation.

EU procedural rights and pre-trial detention: The limits of a piecemeal approach

As mentioned, this section takes a closer look at the EU instruments that lay down minimum standards on defence rights and procedural safeguards. It is submitted that significant intersections exist between EU Directives on procedural rights and the functioning of remand proceedings. The safeguards laid down by EU law have the potential to impact on the use of pre-trial detention by offsetting the balance between prosecuting authorities and the defence and/or by increasing the ‘access to justice’ of those detained before or during trial. In spite of their lack of explicit references to the rights of pre-trial detainees, the EU Directives can be relied on to gain a stronger protection of the ‘right to liberty’ ²³ within criminal proceedings and (albeit mildly) reassert the importance of the presumption of innocence. EU procedural guarantees may be invoked to strengthen the tools of the defence in the face of an arrest or during police custody. In fact, an extensive reading of these provisions could act as an affirmative tool to improve the legal position of those held in pre-trial detention. More broadly, the enhancement of procedural safeguards (especially in the early stages of a criminal investigation) would secure a greater parity of arms and change the equilibrium between the prosecution and the defence. If improved correctly, these norms would at least provide a ‘brake’ on prosecutorial discretion and influence the decision between detention or bail in remand proceedings. ²⁴ For instance, to challenge an arrest warrant or a subsequent detention order, accessing the documents of the case file is a pre-condition for an effective defence. This is crucial, especially for counsels tasked with the defence of persons accused of crimes if they wish to argue for release or bail with any chance of success. In this respect, empirical findings from across Europe show that, at the first court hearing after arrest, defence lawyers often have little or no time to sit with their clients and consult the documents of the case. ²⁵ Similar issues may arise at a later stage when a court is asked to revoke or review a pre-trial detention order. A lack of advice may be detrimental for defendants, leading to unnecessary deprivations of liberty, that is, grounded exclusively on suspicions that may well be dissipated if the person were to receive proper assistance from a counsel during police interrogation or before the court hearing. For this reason, the EU has introduced two Directives regarding the right to information and the right to legal assistance in criminal proceedings: Directive 2012/13/EU and Directive 2013/48/EU, respectively.

The right to information and the right to access the case file are two faces of the same coin. According to a well-established case law of the ECtHR, ²⁶ the habeas corpus review of detention presupposes that a suspect is informed about his right to challenge detention and that, to do so, his lawyers are given access to all documents that justify the decision to impinge on that person’s liberty. As far as the right to information is concerned, Directive 2012/13/EU lays down an obligation for investigating authorities to provide a Letter of Rights to suspects when arrested or detained. The Letter of Rights is meant to offer basic information concerning any possibility, ²⁷ under national law, to challenge the lawfulness of the arrest/detention, obtaining a review of the initial order or requesting provisional release (eg bail). The right to access to the case file is equally recognised by Directive 2012/13/EU in terms that appear to lay out an absolute right. However, the prosecution is still allowed to restrict access to the documents by invoking reasons of ‘strict necessity’. ²⁸ In practical terms, such access may be procrastinated until ‘the court begins to examine the merits of the charges and before the commencement of any hearing of argument by the court’. ²⁹

The right to access to a lawyer in the early stages of proceedings has been enshrined by Directive 2013/48/EU, which lays down special guarantees for suspects deprived of their liberty (Article 3). The right to have a lawyer applies throughout the entire process (Article 2), including in the context of remand hearings. The Directive has established some other rights that can improve the legitimacy of detention at the pre-trial stage: these include the right to inform and remain in contact with third persons and with consular authorities (Articles 5 to 7). Similarly, the lack of interpreters and the poor or insufficient translation of case documents can cause great disadvantages to foreign suspects, as they are unable to understand the questions posed and gain proper advice from their lawyers. It is no surprise that the EU has taken action in this field with Directive 2010/64/EU, by laying down that suspects who do not speak or understand the language of the procedure are given the right to an interpreter and to translation of certain documents. ³⁰ Once again, these rights may compensate for the vulnerability of suspects and allow for a better assessment of the circumstances of the case, so as to rule out the need for pre-trial custody. In other words, the norms applicable to pre-trial detention have undoubtedly an added value and illustrate the posture of EU law in favour of an adversarial process, thereby posing some restrictions on the unbridled use of detention especially in the early stage of the proceedings. At the same time, some essential rights which may be affected when pre-trial detention is ordered are not covered by the EU Directives on procedural rights. ³¹ This absence reflects a deliberate reluctance of EU law to address this issue in a holistic manner. In particular, as far as procedural safeguards are concerned, the EU Directives have avoided to pose restrictions on the decision-making process of key ‘gate-keepers’ of the incarceration process ³² such as police, prosecutors and judges.

The reluctance to influence the discretion of pre-trial decision-makers is clearly proven by Directive 2016/343/EU, which harmonises certain aspects of the presumption of innocence and the right to be present at trial. A more restrictive regulation on the burden of proof required to order a remand in custody may well be justified by the need to respect the presumption of innocence of suspects before final conviction. As the ECtHR held, the Convention stipulates special safeguards for pre-trial detention. ³³ These are justified by the need to find a proper equilibrium between the reasons justifying a deprivation of liberty and the suspect’s presumption of innocence. ³⁴ Though a right to be presumed innocent is now affirmed by EU law, the above-mentioned Directive seems to have little or no impact on pre-trial decision-making. Recital 16 explicitly exempts decisions on pre-trial detention from the respect of such right, ‘provided that such decisions do not refer to the suspect or accused person as being guilty’. In addition, the Directive on the presumption of innocence has been interpreted in a manner that reduces even further its impact on remand proceedings. The CJEU made clear that ‘Directive 2016/343 cannot be interpreted as being a complete and exhaustive instrument intended to lay down all the conditions for the adoption of decisions on pre-trial detention’. ³⁵ More recently, the CJEU took the view that the scope of Article 6 of the Directive – as regards the burden of proof – should be restricted to decisions on guilt or innocence of defendants, thus trial verdicts. ³⁶ As a result, national law may go as far as to place the burden of proof in remand proceedings entirely on suspects, despite the existence of ECHR case law prohibiting such practice. ³⁷

More fundamentally, EU Directives seem concerned exclusively with guarantees applicable ‘within’ criminal proceedings. At the same time, they disregard rights which, for persons detained on remand, are instrumental to exercise their defence effectively. For example, Directive 2016/1919/EU makes clear that suspects or defendants have a right to legal aid when a decision is taken as regards their incarceration or when already in detention, at any stage of the proceedings. It adds, however, that Member States can make legal assistance conditional on further criteria to determine whether a suspect or an accused person lacks sufficient resources to pay for the assistance of a lawyer. At the same time, the ability of individuals behind bars to gain access to legal aid may suffer from additional impediments which are social, cultural and technological in nature. Importantly, the exercise of defence rights may be rendered ineffective due to the limitations applicable to inmates, especially in their relationship with the outside world (relatives and friends). In many legal systems, permission to telephone (or, more rarely, videocall) may be refused and letters intercepted by prison authorities. The absence of legal assistance to challenge this kind of administrative decisions is often a factor that hollows out the chance of exercising the right to defence in an effective manner. ³⁸ Similarly, the prison regime applicable to pre-trial detainees, including the choice to subject prisoners to solitary confinement or other disciplinary measures (such as transfers) could interfere with the person’s proceedings, acting as a reprisal or making it otherwise more difficult to organise an effective defence strategy. Finally, it is no secret that various forms of ill-treatment during detention may be used to coerce the suspect into confessions or other inculpatory statements: for this reason, the oversight of national and international inspection bodies ³⁹ must be coupled by the ability to rely on effective remedies that bind the prison authorities to cease promptly any violation of fundamental rights. ⁴⁰

The lack of substantive rules on pre-trial detention: In search of a common language

The fact that the EU has stepped in to enhance the respect of defence rights and offset the imbalance between suspects and prosecutors/police, protecting the equality of arms – as mandated by the case law of the ECtHR in its interpretation of Articles 5 and Article 6 ECHR – is a good sign. However, it would be far-fetched to claim that these norms have been adopted with the precise goal of decreasing the use of pre-trial detention or incentivising bail and non-custodial measures. EU secondary law deals exclusively with procedural safeguards that can be invoked during criminal proceedings. As said, these guarantees might play a role in making decisions between prison and bail, but have no explicit aspiration to curb the over-use of pre-trial detention. The fact that the rate and frequency of pre-trial detention may decline thanks to a greater parity of arms in criminal proceedings is of significance for mutual confidence. Arguably, this might contribute to improve detention conditions for those awaiting trial. As a result, judicial authorities of a requested Member State may be more inclined to cooperate in the context of the EAW, safe in the knowledge that a surrender would not cause an inhuman or degrading treatment. At the same time, the most significant concerns with respect to the impact of pre-trial detention on mutual trust can be explained as a result of the lack of uniform regulation of the substantive grounds justifying deprivation of liberty. Similarly, the judicial arguments or the evidence relied on to ascertain whether such legal grounds are met differ widely. ⁴¹ Particularly, the threshold for imposing pre-trial detention, encapsulated in terms such as ‘reasonable suspicion’ or ‘serious indications of guilt’, is defined in a different manner across Member States. In addition, the judicial review of pre-trial detention and the various rules on the maximum amount of its length reflect the different attitudes of Member States with respect to deprivation of liberty before a final sentence.

Similarly, not all Member States conceive of ‘bail’ (understood here as any alternative to deprivation of liberty) as a default option in the case of remand proceedings. In other words, they do not embrace explicitly a presumption of bail (which, in turn, is rather common, albeit nuanced, in many common law jurisdictions). ⁴² In fact, in several continental legal systems, non-custodial measures are accessible only for those who have already been arrested and held in detention. The judicial culture in some jurisdictions (such as Ireland), by contrast, is imbued with the idea that individuals with criminal charges have ‘a prima facie [. . .] entitlement to be released on bail pending the resolution of those charges before the courts’. ⁴³ Legal diversity in this field of criminal justice is certainly an issue in itself, as EU Treaties maintain that all Member States can invoke their constitutional identities in the face of EU power to harmonise substantive and procedural criminal laws. Yet, the absence of a level playing field in this area may turn out to be detrimental for the effectiveness of judicial cooperation tools such as the EAW. ⁴⁴ Of course, judicial cooperation involving pre-trial detention orders does not take place in a normative vacuum. The ECtHR has developed criteria that may influence the evidentiary threshold required by national law and must be accounted for as a part of the legal reasoning of domestic judicial authorities in the Member States. However, this normative framework remains sketchy and, if not translated into legislative measures, has little ability to reduce the use of pre-trial detention and increase the implementation of non-custodial alternatives. ⁴⁵ In addition, the Strasbourg Court has provided only minimum standards that fail to establish a shared culture of pre-trial detention across the different Member States of the Union. A closer examination of these aspects is now needed to illustrate the shortcomings of the current EU legal framework.

As for the substantive rationale of pre-trial detention, it is apparent that a huge variety of justifications exist across the different Member States of the EU. Such differences concern both the typology of available legal grounds for pre-trial detention and their content (as defined by statutory law or by the jurisprudence). For example, the legislation of some Member States recognises the possibility of issuing a detention order on account of a risk for the ‘public order’. Despite being ‘tolerated’ by the ECtHR’s case law ⁴⁶ and, more recently, mentioned by the 2022 EU Recommendation on pre-trial detention, ⁴⁷ this rationale is squarely rejected by the law of many EU Member States. One principled reason to explain such ‘taboo’ is the concern to maintain a clear-cut distinction between pre-trial detention and preventive detention. While the former ought to be regarded as a tool to secure the proceedings (both by ensuring the attendance at trial and avoiding interferences with the investigation), the latter performs broader criminal policy functions in that it strives to protect the public order and may tackle the risk of re-offending as well as any further element of social dangerousness. This ambivalence speaks to the dual nature that characterises both the law and practice of pre-trial detention in several jurisdictions: on the one hand, deprivation of liberty performs a procedural function that relates to the aims of trial and protects the interests of the proceedings, for example, by avoiding the risk of collusion and absconding; on the other hand, it serves a preventative goal by addressing the dangers posed by the detainee, either in terms of re-offending (specific prevention) or as a threat to the public order (generic prevention). ⁴⁸

Although such ambiguity of purposes is somewhat inherent to the essence of pre-trial detention, ⁴⁹ there is no consensus across the States of the Union about the extent to which purely preventive motives can justify pre-trial detention. In particular, the idea that deprivation of liberty can be used to protect the public is not explicitly accepted as a legitimate ground for custody in every jurisdiction, nor is the prevention of re-offending a universally established ground to order pre-trial detention. ⁵⁰ In Ireland, for example, the possibility of putting someone in jail to prevent the commission of criminal offences is laid down in very strict terms by the law. ⁵¹ This applies only to a limited number of charges (for very serious crimes) and require a high threshold of evidence showing that the refusal of bail is reasonably considered necessary. Similarly, Italian law does not list explicitly public protection as a reason to keep someone in custody after arrest or to order pre-trial detention. By contrast, in the Netherlands, the statutory law mentions the risks for the public order as a legitimate ground for pre-trial detention. ⁵² Therefore, in cross-border cases (those involving an EAW), there is reason to believe that an arrest warrant issued to address the concerns posed by a suspect to the public order in the state of the proceedings may run counter to the law in force in the other Member State (where the requested person may live or reside). Even though the principle of mutual trust does not allow a scrutiny of the domestic provisions of the State issuing an EAW, this example lays bare the profound differences with respect to the role pre-trial detention is meant to perform.

Turning now to the judicial arguments underpinning a detention order, it is worth considering that, even when the legal grounds to detain on remand are worded similarly, their practical implementation may differ widely. A case in point is the assessment of flight risk. While this is a standard justification for pre-trial detention in every EU jurisdiction, ⁵³ the reasons behind its application are a matter of debate. A recent empirical study in six EU Member States has shown that, when it comes to the evidence of flight risk, the wording of judicial decisions is often stereotyped and formulaic. ⁵⁴ In particular, the analysis of case files and courtroom observations have consistently demonstrated that the notion of flight risk is open-ended and flexible, in that it allows for consideration of a wide array of objectives and subjective circumstances to exclude the application of bail and non-custodial measures. It appears that the risk of flight may, indeed, function as passe-partout to justify detention. Due to the vagueness of this requirement, the existence of conditions of vulnerability (such as the lack of residence permit or homelessness) may give rise to a self-fulfilling prophecy. The outcome is a disproportionate impact of pre-trial detention on foreign nationals, homeless people and people with socio-economic fragilities ⁵⁵ : all these categories are deemed to be a ‘population at risk’ and thus more prone to flee or abscond. While this state of affairs is worrisome in itself, it seems particularly at odds with some fundamental principles of EU law. First, it allows criminal proceedings to result in decisions that substantially violate the principle of non-discrimination on grounds of nationality (Article 18(1) TFEU). Second, it creates hurdles to the exercise of several EU free movement rights when pre-trial detention is factually ordered only on account of the suspect being an EU citizen with no residence or abode in the State of prosecution. Finally, the notion that a person with weaker ties to the State of prosecution should be perceived as more dangerous is fundamentally at odds with the presumption of innocence (Article 48 of the Charter). This latter criticism strikes as even more persuasive when the reasoning behind a detention order (or a decision to renew it) relies heavily on the alleged offence rather than on the risk posed by the individual.

The failure to pass any binding legislation on the grounds that justify this deprivation of liberty has been repeatedly underlined as problematic for a closer integration within the AFSJ. ⁵⁶ The main challenges, resulting from the procedural and substantive shortcomings on pre-trial detention in the EU can be summed up into two main categories: (a) the functional issues related to the smooth operability of mutual recognition instruments involving a deprivation of liberty and (b) the principled concerns involving the protection of fundamental rights of suspects and accused persons. While the two areas partially overlap (as a poor or absent protection of fundamental rights in remand proceedings may hamper mutual trust), these components shall be considered separately. In fact, some functional questions such as the possible introduction of minimum rules on the grounds of pre-trial detention and/or on the length thereof are justified by the need to increase the smooth functioning of mutual recognition instruments, in that they establish a level playing field. On the other hand, principled concerns as regards the protection of fundamental rights may well be considered in isolation, regardless of any connection with the goals of judicial cooperation. So are the questions that pertain to the status of pre-trial detainees and their access to justice. After all, irrespective of their functional relevance for judicial cooperation, these guarantees give substance to a ‘due process’ model of criminal justice. ⁵⁷ To fully comprehend how these functional and principled issues have been dealt with by the EU so far, we must now turn to the contents of the recent Commission’s recommendation on pre-trial detention before moving on to explore the limits and possibilities of further EU legislation in this field. It will appear clearly that, while employing soft law, the Union has been keen to address principled concerns related to the specific vulnerability of people in pre-trial detention. By contrast, even if it were to adopt a Directive – which has so far lacked a sufficient political support – the EU will be mostly confined to addressing functional issues that pertain to mutual recognition and would find it harder to legitimise a binding normative action to protect fundamental rights in prison.

Pre-trial detention and material detention conditions: EU soft law

Only a small number of the problems discussed above can be effectively addressed through the recently adopted recommendation on procedural rights of persons subject to pre-trial detention and on material detention conditions. ⁵⁸ This document is certainly a major milestone in the development of an EU corpus of law on detention. It also constitutes the first EU act to embody a set of standards on pre-trial custody. ⁵⁹ The recommendation, issued on 8 December 2022, is however, a non-binding instrument. Its key contents reflect a process of consultation launched by the Commission with its Work Programme 2022 and a subsequent ‘call for evidence’. ⁶⁰ First and foremost, the recommendation pick up on the most relevant findings of ECtHR’s case law on remand detention and bail. Its first part contains some vague provisions regarding the procedural aspects of pre-trial detention, while the second part is devoted to detention conditions of those detained on remand. The main issues dealt with in the first part of the document are: the notion of reasonable suspicion and the grounds to detain a suspect; the reasoning behind pre-trial detention orders; the periodic reviews of such orders and the overall length of pre-trial detention; the pre-trial hearing of suspects and accused; and the remedies and the right of appeal against a detention order. The Recommendation also warmly suggests that Member States enrich the set of non-custodial measures available during remand proceedings. Interestingly, it does so by inviting national policy-makers to introduce ‘the widest possible range of alternative measures, such as the alternative measures mentioned in Framework Decision 2009/829/JHA on the application of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention’. ⁶¹ The actions to be taken at the national level are framed as ‘suggestions’. Thus, domestic lawmakers may well pick and choose the aspects of the text that they consider more consistent with their own legal system and judicial tradition. In addition, where the Recommendation lays down procedural rules, it does so with a broad-brush approach, to preserve the leeway of national authorities. Nonetheless, one can find provisions that would be very divisive if adopted as part of a binding instrument: for instance, there is no consensus between the Member States as to the deduction from the final sentence of periods spent under a non-custodial measure. ⁶²

The main questions addressed in the second part are: the allocation and accommodation of pre-trial detainees; their hygiene and sanitary conditions; the detainee’s healthcare and nutrition; the time spent in out-of-cells activities, with a special focus on work and education; the prevention of ill-treatment; the contacts with the outside world; the legal assistance and the provision of effective remedies to file requests and complaints; the inspection and monitoring of detention facilities. Significantly, the text includes a special set of provisions for particular groups of detainees, whose features may turn deprivation of liberty into further restrictions of rights. These categories are as follows: women and girls; foreign nationals; children and young adults; persons with disabilities or serious medical conditions. It is particularly telling that the Recommendation sets out that any violation of a person’s rights in prison must be handled promptly and diligently by an independent authority or tribunal empowered to order measures of relief especially when such violations constitute an inhuman or degrading treatment. The provisions in the second part of the Recommendation are more meticulous and meaningful, partly because they draw on prior initiatives of the same content taken within the Council of Europe. ⁶³ Also, the monitoring experience of the Committee for the Prevention of Torture (or CPT), and its reports involving a scrutiny of pre-trial detention conditions, ⁶⁴ provided a blueprint for the EU to set out more detailed standards. In this respect, one must read the provision regulating the detainee’s right to perform out-of-cell activities ⁶⁵ as a codification of the CPT’s frequent remark that ‘it is not acceptable to lock up remand prisoners in their cells for up to 23 hours per day’. ⁶⁶

Yet, the reception of the Commission’s initiative has been lukewarm, to say the least. Several commentators have predicted that the document would be unable to change the status quo. In particular, some suggested that the choice of a soft law instrument seems indicative of the difficulties in developing a common EU approach to pre-trial detention. ⁶⁷ Certainly, the contents of the document at hand do not come across as particularly ambitious (and they fail to reproduce specific clauses contained in the equivalent non-binding texts adopted by the Council of Europe). ⁶⁸ Even more surprisingly, the Recommendation falls short of a holistic approach to pre-trial detention and does not rule on the cross-border implications raised by the detention of non-resident EU nationals across the different Member States. ⁶⁹ The only provision that stands out in this respect is paragraph 72, according to which Member States should ensure that foreign nationals are informed of the possibility of requesting that the execution of their sentence or pre-trial supervision measures be transferred to their country of nationality or permanent residence. ⁷⁰ The lack of notification about the possibility of obtaining a transfer to the State of origin is often explained as one of the reasons for Framework Decision 2009/829/JHA’s limited application in practice. ⁷¹ In addition, no rule has been put forward to orient judicial discretion when it comes to choose between detention and bail. Instead, EU soft law has deliberately avoided taking a stance on the tricky issue of decision-making within remand proceedings. ⁷² Similarly, the text contains few references to the problem of what evidence should be provided to ascertain whether – to use the language of the ECtHR – there is a ‘reasonable suspicion’ that a crime has been committed.

Having said that, however, it seems too early to predict an utter failure for this first EU initiative in the field of pre-trial detention. What today seems like a missed opportunity may turn out to be a blessing in disguise. Should the CJEU decide to refer to this document in its case law, its provisions would ‘hardify’, becoming binding norms as a result of the Court’s rulings. ⁷³ To mention but one example, the Recommendation takes a firm stance on the burden of proof when it comes to the alternative between detention and bail. Member States, the recommendation suggests, ‘should require the competent national authorities to bear the burden of proof for demonstrating the necessity of imposing pre-trial detention’. ⁷⁴ In doing so, the Recommendation contradicts openly what the CJEU has ruled in its interpretation of Directive 2016/343/EU on the presumption of innocence (see above). ⁷⁵ It is plausible to foresee that the same Court may well take a different stance on this issue were it to draw some inspiration from the Commission’s recommendation. True: this text is more of a technocratic exercise than the product of the will of the EU legislature. Yet, its suggestions may be taken to reflect a consensus among experts and stakeholders as to what ought to be done to bring pre-trial proceedings in line with human rights standards (thereby aligning the EU acquis to the standards set by the Council of Europe). A process of legal solidification (whereby soft law gets legally binding through its incorporation in a Court’s jurisprudence) may well be the future that awaits EU standards on pre-trial detention. This will require an active role played by national courts, which, through the mechanism of the preliminary reference, may facilitate a progressive interpretation of procedural safeguards applicable to those detained (see below).

What strikes, in any case, is the approach taken by the 2022 Recommendation. As noted above, the document tackles the status of pre-trial detainees as a purely domestic situation. In other words, the inspiration of this initiative comes almost entirely from the principled concern to increase the protection of fundamental rights as mandated in broad terms by Article 2 TEU (‘the European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’). By contrast, the functional rationale of inter-state cooperation falls beyond the scope of the document adopted by the Commission. Very few provisions, in fact, seem concerned with judicial cooperation and cross-border proceedings. Arguably, the adoption of this Recommendation mirrors a ‘coming of age’ of EU criminal justice, whereby the limits of mutual trust (and, particularly, the gaps in the regulation of EAW proceedings) have been laid bare by the lack of common standards on deprivation of liberty. Accordingly, the Recitals mention that both the CJEU ⁷⁶ and the ECtHR ⁷⁷ have ruled on the impact of poor detention conditions on the operation of mutual recognition instruments. However, they fail to provide further arguments as to what the added value of the text could be in improving mutual trust and judicial cooperation. For this reason, a text of this kind would have hardly made it through the EU legislative process in accordance with Article 82 TFEU. As it will be explained, the constitutional constraints posed by the Treaty require that any binding instrument legislating on the rights of suspects and defendants entail a cross-border dimension. For this reason, it is now time to turn our attention to the primary law provisions setting the boundaries for the adoption of binding rules in this field. This needs to be done. especially, to map the prospects of a legislative intervention based on Article 82 TFEU, one that would diminish the differences between national laws and policies and build up a shared European culture of pre-trial detention.

Constitutional constraints and pathways for legislative harmonisation

To provide a detailed analysis of EU competences in the field of pre-trial detention, one must start from the legal basis allowing the Union’s legislative intervention. Scholars agree that EU legislative action in this field finds its legal basis in Article 82(2)b TFEU. ⁷⁸ This provision sets out the requirements for the adoption of minimum rules ‘in the field of rights of individuals in criminal procedure’. It is submitted that, to be justified, EU legislative action must fulfil a set of requirements. These requirements basically reiterate the general principles of proportionality and subsidiarity, which govern the division of labour between EU and national law-making powers. ⁷⁹ The principle of proportionality has a tripartite structure. Upon finding a legal basis for the adoption of measures impacting on a person’s rights, EU law must adopt legislation in keeping with the criteria of necessity, adequacy and proportion (or proportionality in a narrow sense). The principle of subsidiarity requires that decisions be taken as ‘close as possible to the citizen’. ⁸⁰ In other words, for EU legislative action to be justified, it must rebut the presumption that Member States are better placed to regulate a given matter. ⁸¹ The TFEU has specified these two principles by laying down that: the European Parliament and the Council may adopt Directives establishing minimum rules ‘to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension’; such rules ‘shall concern [. . .] the rights of individuals in criminal procedure’. Pursuant to Article 82(2)b TFEU, the exercise of EU regulatory powers in the field of pre-trial detention shall abide by three distinct prerequisites: first, EU rules on custody must be necessary to improve the effectiveness of judicial cooperation, especially by enhancing the mutual recognition of judicial decisions; second, they shall have implications for proceedings with a transnational character; third, they must entail a greater protection of individual rights affected in the context of criminal procedure.

These three requirements warrant further scrutiny as their interpretation is still subject to much controversy. It is worth recalling, by way of introduction, that EU rules on pre-trial detention may not give rise to a complete unification of the relevant legal regime in the Member States. The very notion of ‘minimum rules’ suggests that national legislatures maintain a certain degree of discretion while implementing EU law. ⁸² Accordingly, the adoption of a single EU normative framework cannot have the effect of eradicating differences between the legal cultures of the Member States. By introducing minimum rules, the EU may launch a process of harmonisation ⁸³ one that reduces discrepancies between different bodies of norms while maintaining specificities and differences. ⁸⁴ However, as mentioned, the EU could not issue a Directive regulating aspects of pre-trial detention unless its adoption would appear necessary to increase the effectiveness of mutual recognition in cross-border cases. This set of constraints shows that the only approach taken by the EU lawmaker, in this area, can be a functional one. Admittedly, the object of such legislative intervention is bound by the Treaty: it must concern the rights of individuals in criminal procedure. However, fundamental rights are oddly seen as ‘means to an end’ (rather than an end in themselves), the ultimate goal being the effectiveness of the judicial cooperation mechanisms. There is no ambition to legitimise a far-reaching intervention that would go so far as to establish a magna carta of people deprived of liberty. Instead, the scope of a prospective EU Directive is constrained by the functional requisite of necessity and by the related requirement of transnationality. Both conditions must be analysed in detail before concluding the present analysis.

The necessity requirement is one of the corollaries of the EU principle of proportionality. To be lawfully adopted, any legislative action at the Union level must prove suitable to attain a legitimate objective in accordance with the Treaties and this goal cannot be reached by other measures (eg non-legislative initiatives). ⁸⁵ But what is a legitimate objective when it comes to the harmonisation of procedural criminal law? As said, any legislative initiative must prove instrumental to the improvement of ‘mutual recognition of judgments and judicial decisions’ and of ‘judicial cooperation’ more broadly. In practice, were it to table a draft Directive, the Commission must demonstrate that, if adopted, such an instrument would be the only means to attain the goal of a better and more effective functioning of mutual recognition. Clearly, the main concern in this respect is that it is simply not straightforward to link a factual consequence (such as the rise in the level of confidence) to the adoption of a normative text. Be that as it may, to meet the necessity requirement, a draft legislation would have to show that the differences between national legislations on pre-trial detention effectively create a hindrance to the smooth functioning of mutual recognition instruments. ⁸⁶ To simply presume that uniform legislation would increase mutual trust would not be enough. An EU regulatory intervention could be justified only if the added value of the legislative measure is backed by evidence. Yet, the practice of the EU law-making process shows that, so far, there has been a limited scrutiny as regards the extent to which harmonised rules would, in concreto, ease judicial cooperation.

The transnationality requirement is perhaps even more ambiguous. At first sight, the harmonisation must concern procedural norms applicable to cross-border cases. The Treaty refers, in particular, to ‘judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension’. A strict interpretation of this proviso suggests that harmonised rules should ‘concern or have strong implications for cross-border judicial cooperation’. ⁸⁷ In other words, only the aspects of domestic criminal procedure which are functionally tied to cross-border proceedings could be the subject of legislative intervention as per Article 82(2)b TFEU. ⁸⁸ This reading of the sub-paragraph at hand reflects a close implementation of the principle of subsidiarity. Some scholars argued, for instance, that this principle does not justify harmonisation on any topic with a potential cross-border element but confines it to issues which have per se a transnational character. ⁸⁹ A broader interpretation of the requirement analysed in this section, by contrast, seems more focused on the implications or effects of a certain rule of criminal procedure. ⁹⁰ Referring specifically to the rules on evidence, it has been observed that the cross-border dimension of certain proceedings: (i) might arise from practical considerations (such as the actual location of witnesses and other pieces of evidence that are relevant to the proceedings) rather than from the inherent content of the legal provisions involved ⁹¹ ; (ii) can be found at a later stage of the investigation or even at trial, for example, when the questioning of suspects or the hearing of witnesses takes place, and might not be known to the authorities at the time when such proceedings are launched. ⁹² In addition, the risk of reverse discrimination, resulting from the development of two sets of procedural rules (one for purely national proceedings and the other for those of cross-border nature) would be hard to avoid. ⁹³

The broader interpretation seems more plausible both in theory and in practice. Not only is this understanding explicitly endorsed by the EU Commission, ⁹⁴ but it was also accepted, for the most part, by the Member States (legislating within the Council of the EU) and by the European Parliament while implementing the ‘Roadmap’ on procedural rights in criminal proceedings. More recently, there are signs that national governments sitting within the Council could take a more restrictive stance as regards the criteria of necessity and transnationality to take new initiatives of harmonisation. ⁹⁵ At the same time, the CJEU has recently opened the floor for a legitimate use of the legislative powers by watering down the requirement of ‘transnationality’. Adjudicating on the scope of application of the Directives adopted as part of the Roadmap, the Court has accepted the point of view of Advocates General Bobek and Pikamäe: the minimum rules based on Article 82, for the purpose of harmonising criminal proceedings, are entirely independent from of the existence of any cross-border situation in the context of the disputes arising in each Member State concerned. In other words, there is no need to apply this legal basis only to cases which may be linked to more than one jurisdiction and even less to limit it to proceedings initiated for transnational offences. While secondary law is arguably entitled to restrict its area of intervention to cross-border offences, ⁹⁶ this impediment does not follow necessarily from the text of the mentioned Treaty provision. Accordingly, the requirement of transnationality for the purposes of harmonising pre-trial detention has lost much of its practical relevance. ⁹⁷ Even the legislative competence regarding substantive criminal law, as per Article 83(1) TFEU, is not limited to the adoption of harmonisation rules regarding offences which are transnational in nature: rather, the definition of criminal offences and sanctions in the area under consideration may embrace offences where the actus reus is typically confined within a single Member State. It would thus make little sense to interpret the functional competence to harmonise criminal procedure as one limited to transnational offences.

The exercise of the EU competence to pass legislative measures under Article 82 TFEU does not seem to be limited by the reference, within this provision, to the object of the Union’s intervention: namely, the protection of fundamental human rights in criminal procedure. If anything, this term lends itself to possible interpretations that may go so far as to expand the scope of the normative intervention. Provided that any procedural provision that has impact on the actual use of pre-trial detention (eg the prerequisites that establish when a detention order can be issued or prolonged) has an indirect impact on fundamental rights, it seems rather straightforward to claim that a prospective Directive could harmonise the national rules on the maximum length of pre-trial detention as well as the mechanisms (including the frequency) of its judicial review. Based on the literature review conducted for this paper, the last two examples stand out as the minimum common denominator in the scholarly debate. ⁹⁸ More controversial is the question of whether an EU Directive can regulate the material detention conditions of suspects held in custody. Such conditions are undoubtedly impacting on the person’s fundamental rights while he or she is detained. However, a regulatory intervention of this kind would fall within the Treaty notion of ‘criminal procedure’. Some authors believe that the material organisation of the penitentiary system, from which the quality of detention and well-being of detainees depend, can hardly be thought of as being part of criminal procedure. ⁹⁹ So much so, that it would seem wise to exclude them from the scope of a legislative action under 82(2)b TFEU. ¹⁰⁰

At the same time, the CJEU has accepted that mutual trust cannot be simply presumed and extradition/surrender requests may be rejected if a threat exists that the requested person will be detained in a manner that violates the prohibition of inhuman and degrading treatment. Such a violation may emerge from the prison regime applicable to the person concerned or from the material detention conditions to which such person will be exposed upon their apprehension by the authorities of the issuing State. ¹⁰¹ In such cases, fundamental rights are clearly at stake as deprivation of liberty would breach both Article 4 of the Charter and Article 3 ECHR. It seems odd, to say the least, that legislative competences could not expand to cover the regulation of aspects (the modalities in which prisoners are physically detained and, in particular, the quality of ‘housing and services’ offered to pre-trial detainees) that affect so substantially the respect of such fundamental rights, especially in cross-border proceedings underpinned by mutual trust. And after all, it is fair to say that the extent of EU regulatory powers should be read in light of the human-centred approach designed by fundamental rights – which are general principles of Union’s law pursuant to Article 6(3) TFEU – and not the other way around. The precedent of Directive (EU) 2016/800 militates in favour of a broad interpretation of Article 82 TFEU, as this instrument contains provisions that detail the specific treatment of children in the case of deprivation of liberty: Article 12 lays down the child’s right to education and training and it reiterates the right to family life of imprisoned minors. In this connection, the Directive goes so far as to require the Member States to offer programmes that foster an inmate’s development and reintegration into society. ¹⁰² From this standpoint, it seems clear that the EU lawmaker has not restricted itself to a functional attitude and has followed a full-spectrum approach to harmonisation that prioritises the protection of fundamental rights.

Conclusion

In light of the above, the legitimacy of EU legislative intervention to tackle the over-use of pre-trial detention seems hardly questionable. However, as it has been explained, the lack of a shared institutional grammar and the different judicial cultures vis-à-vis pre-trial detention are significant obstacles: they may impact negatively on judicial cooperation, thus showing the need for further integration through minimum rules and the establishment of a level playing field; at the same time, they constitute significant hurdles to the very project of harmonisation as the exercise of legislative powers conferred to the Union by Article 82 TFEU must ‘respect’ and accommodate the differences between legal systems and constitutional traditions in the Member States (see Article 67 TFEU). ¹⁰³ Nevertheless, the common language of fundamental rights – enshrined in the ECHR and embedded in the EU legal order – offers a springboard to develop a common framework transcending different legal cultures. In all fairness, the specific features of EU integration in criminal matters show that this common grammar can serve only as a starting point to develop more specific standards. The vague and piecemeal approach that emerges from the casuistic jurisprudence of the ECtHR is not fit for purpose. As a consequence, this article has argued that the issues that would warrant a EU regulatory intervention can be divided into groups: on the one hand, there are the functional concerns pertaining to the implementation of judicial cooperation instruments; on the other hand, the principled issues relating to the core fundamental rights impacted by deprivation of liberty within a criminal procedure. A superficial reading of the constitutional framework designed by Article 82 TFEU might lead one to think that only the functional concerns ought to be addressed via harmonising legislation. The choice of a soft law document (as a tool to detail specific requirements concerning the detention regime and the conditions and rights applicable to pre-trial detainees) may be seen as proof that a draft Directive of the same content would not have met the requirements set by EU primary law.

Yet, as has been argued in the previous section, a broad interpretation of the criteria of necessity and transnationality set by Article 82 could pave the way for a more principled approach. In particular, an entirely functional approach to the harmonisation of criminal procedure seems at odds with the pivotal role of fundamental rights within the EU constitutional architecture. Accordingly, this article has sought to demonstrate that a combined reading of EU primary law would legitimise the adoption of a Directive harmonising several aspects of pre-trial detention regardless of their functional relevance for judicial cooperation. In doing this, the ‘north star’ should be a human-centred notion of criminal justice that builds upon the foundational value of dignity enshrined in both Article 2 TEU and Article 1 of the Charter. ¹⁰⁴ As a result, it goes without saying that the legislative intervention may encompass some key procedural provisions such as: the grounds for pre-trial detention or, at least, some criteria to ascertain such grounds and to set a common evidentiary threshold to establish if ‘reasonable suspicion’ exists; the maximum length of pre-trial detention and the mechanisms to ensure that a judicial review is carried out at regular intervals even ex officio. At the same time, the proposed interpretation of the legal basis of Article 82 TFEU could pave the way for a detailed discipline of material detention conditions, drawing on the contents of the 2022 Recommendations and on the latest findings of the CPT. All in all, the dysfunctions of a lack of binding rules as to how pre-trial detainees must be treated are already influencing negatively the practice of EAW proceedings and have prompted an increasing number of bolder rulings by the CJEU.

Ostensibly, there is no political consensus about the way forward. The most recent meetings of the newly established High-Level Forum for EU criminal justice have displayed the divisions between the Member States (and other stakeholders): one group of participants stressed that detention matters should be dealt with at national level, as falling under national procedural autonomy, while another strongly called for action at EU level to establish binding standards of protection for detainees. While waiting for a further normative initiative (perhaps supported by forthcoming assessment by the Commission of the 2022 Recommendation on pre-trial detention), the ball is in the practitioners’ court, as they may prompt the CJEU to rule more extensively on pre-trial detention via the preliminary reference procedure. This can be done along two lines of litigation.

The first strategy of litigation would be to stimulate a bolder interpretation of procedural guarantees applicable to pre-trial detainees: by relying on a combined interpretation of the Roadmap Directives and the Charter, it should be possible to lead the CJEU to embrace a ‘presumption of liberty’, thereby requiring a higher evidentiary threshold and a narrower interpretation of the grounds for detention. Besides a stronger protection of the right to liberty, the Directives could be interpreted to provide a bulwark for the presumption of innocence in remand proceedings. Whatever the legislature’s intent at the time of passing Directive 2016/343/EU, a reading of this instrument in combination with Article 47 of the Charter may lead to embrace the rule included in the 2022 Recommendation: namely, Article 6 of the said Directive could be interpreted in the sense that competent national authorities should factually bear the burden of proof for demonstrating the necessity of imposing pre-trial detention. The second litigation strategy must aim at the ‘codification’ of detention standards within the EU case law on judicial cooperation; legal arguments may draw legitimacy from the increasing integration of National Preventive Mechanisms (NPMs) within the EU. The work of these bodies, active in almost every EU jurisdiction, may provide increasingly refined criteria to establish where and under which conditions a detainee must be housed to avoid ill-treatment. ¹⁰⁵ This is just an example of how, via the preliminary reference, the CJEU may be nudged to pick up on the findings of prison oversight bodies to raise the bar of its case law on detention and make it more ambitious and protective for people behind bars.