6Īt national level, there is wide consensus around the fact that pre-trial detention must have a specific aim. As it will be discussed, however, the distinction between pre-trial detention and custodial sentencing tends to blur when pre-trial detention is used as means to prevent re-offending or, even more broadly, to protect the public order. The requirement of legitimate purpose serves the principle of ultima ratio but also the presumption of innocence: requiring pre-trial detention to serve a specific purpose is key to avoid that deprivation of liberty is used as an ‘anticipation of punishment’.
Article 5 echr sets out a general right to liberty, followed by the prohibition of locking people up save in exceptional circumstances. The Convention system is underpinned by the idea that detention can only be used as a measure of last resort (or principle of ultima ratio) and without violating the presumption of innocence. This risk-oriented approach can be linked to a strong principled argument. As we will see, however, the question as to what kind of risks justify the use of pre-trial detention remains controversial. Pre-trial detention has long been justified as an instrument to bridge the time gap between a suspect’s capture and trial, thus dealing with certain risks that may occur during this period. 5 These correspond to certain risks to be prevented, e.g.
More specifically, pre-trial detention can be ordered exclusively when justified on the basis of legitimate public interests. 4 The European Court of Human Rights (ECtHR) has interpreted article 5 para 1 and 3 European Convention on Human Rights ( echr) narrowly, adding the requirement of a legitimate purpose. In addition, scholars argue that detention on remand must always be regarded as a risk-oriented measure: while its purposes vary across jurisdictions, they have in common the prevention of certain risks. This means that it draws its legitimacy from serving a purpose and potentially producing certain consequences. Traditionally, detention on remand has been conceptualized as a utilitarian or consequentialist measure. Justifying pre-trial detention appears crucial for its rational use. By pre-trial detention, we refer to detention on remand ordered after (and thus not including) arrest. In this article, we delve deeper into the purposes of using pre-trial detention and alternative measures.
Nevertheless, courts in many jurisdictions exhibit a lack of trust in their use. They are meant to offer a less strict option in dealing with the defendant pending investigation and trial. Alternatives to pre-trial detention are milder measures whose content varies widely across jurisdictions (spanning from unconditional freedom on remand to electronic monitoring). 2 While the use of pre-trial detention is inflated according to these surveys, alternative measures remain underused. 1 Statistics show that about one in four prisoners (approximately 22% of prisoners in Europe) is a pre-trial detainee. right to liberty, presumption of innocence, privilege of non-self-incrimination and access to legal advice reportedly, lengthy detentions have far-reaching consequences regarding the economic fate and stability of families, the state and the criminal justice system. All these studies point to a problematic (over)use, which impacts negatively on a variety of individual and procedural rights, e.g. Pre-trial detention has been under the spotlight during the last few years, with various empirical projects being conducted in Europe and globally. Conclusively, we encourage the reflection and re-examination of the echr standards for pre-trial detention, instead of focusing merely on their better enforcement.ġ Setting the Scene: the Overuse of Pre-Trial Detention as a European Problem Additionally, we delve deeper into the obligation to use milder measures as part of the echr standards, which remains superficial and vague. One major example is the use of pre-trial detention to prevent re-offending, which blurs the boundaries between custody on remand and preventive detention. Moreover, we reveal internal inconsistencies with the presumption of innocence. In our analysis we discuss the shortcomings of the echr standards to fully protect from abusive detention. Yet these purposes are heterogeneous as pre-trial detention protects the pending proceedings but also averts risks pertinent to criminal policy. They focus on the legitimate purposes of detention as safeguards to ensure the principle of ultima ratio. These standards are considered panacea for the reported overuse of pre-trial detention in Europe. In this article, we take issue with the echr standards on pre-trial detention.
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