The Great Escape: Part II

Civitas, 30 June 2011

In light of the increasingly evident disparity between standards of criminal justice in EU member states, the European Commission has launched a consultation on pre-trial detention and extradition. This Green Paper should be welcomed as a recognition of “the scandal of excessive and unjustified pre-trial detention in Europe”, and the need to impose more rigorous common standards to prevent further rights violation.

The Commission recognises that effective mutual cooperation between EU member states “in tackling crime and making justice systems work” must rest on the cornerstone of mutual trust between these states; each member is expected to accept that criminal justice systems in other EU states, “whilst not the same, are at least equivalent”. Yet, with widespread prison overcrowding and unjustified detention, as Chief Executive of Fair Trials International Jago Russell has stated: “In reality…standards vary so widely across the EU that this trust sometimes looks like little more than naivety or blind faith”.

The consultation comes just as the Joint Committee on Human Rights of the UK parliament publishes a report which concludes that “the current statutory framework [of the UK’s extradition policy] does not provide effective protection for human rights”. The gravity of human rights implications bound up in pre-trial detention and extradition is unequivocal. Art 4 of the EU Charter of Fundamental Rights mirrors exactly the wording and meaning of Art 3 ECHR (prohibition of torture or inhuman or degrading treatment), which covers incidents of unacceptable detention conditions, and Art 19(2) of the Charter declares that a person may not be handed to another state where there exists a serious risk that they will be subject to treatment infringing Art 3 ECHR.

Furthermore, whilst the European Court of Human Rights has held that pre-trial detention must be used only exceptionally, the reality is that “[t]hese extraordinary powers are in fact being used in an almost routine way”. Approximately 4,500 unconvicted people are being held in European prisons at any given time, yet some jurisdictions have no maximum time limit for pre-trial detention. Even among those which have some cap, there is little consistency; while the limit in Cyprus is three months, suspects in Italy can be detained for up to six years pending trial.

Risk of rights violation is compounded for those prisoners held outside their national or resident state; not only do they face the challenge of an unfamiliar language and legal system, but they are often isolated from their family and home. These difficulties can have a devastating impact on the fairness of the trial if and when it does occur. Fair Trials International reports a plethora of cases in which people held abroad plead guilty to offences they did not commit, solely to avoid the risk of spending a longer period in custody awaiting trial than they could have received as a sentence on conviction.

Such examples of rights infringements have now been catalogued and acknowledged; the consultation now seeks to establish a solid footing for mutual trust, by tackling these problematic rights issues head on, pushing for broader use of non-custodial alternatives to pre-trial detention and the possibility of an EU maximum pre-trial detention period. Moreover, to its credit, the Commission has been careful to avoid commandeering the issue. Recognising that responsibility for detention conditions lies with member states, the paper accepts that the EU can most appropriately and helpfully raise detention standards, not through  additional EU-led monitoring, but through “promoting better coordination” of existing networks.

The UK Joint Committee has also made a number of rational recommendations, including a requirement “for the requesting country to show a prima facie case or similarly robust evidential threshold” in extradition cases, and safeguards to ensure that other EU member states do not use the EAW to request a person for investigation rather than to stand trial. Importantly, the Committee has proposed the introduction of a proportionality principle, to ensure that the human rights implications of an EAW extradition are not disproportionate to the alleged crime.

For too long systematic rights violations have been left to fester in states throughout the EU. Yet, driven by pragmatism and consensus, the detention green paper is all about looking forward. The true extent of the paper’s impact will not be felt for some time, as the consultation period remains open until November, however it marks another key commitment to protecting the rights of both suspects and victims, at home and abroad. The ideas for reform are there, and it seems as though – at last – the Commission is ready to listen.