Pre-trial detention rates are a sensitive issue in the EU with large variations in standards between Member States – but the issue will not be resolved in the near future.
The European Commission adopted a Recommendation in December 2022 on the procedural rights of suspects and accused persons subject to pre-trial detention and their material detention conditions. The recommendation lays down minimum standards. Using pre-trial detention is seen as a measure of last resort if there is a risk that the suspect will try to escape from the country or disrupt the criminal investigation. As far as possible alternative methods should be used.
People in pre-trial detention account on average for 22% of the total prison population in the EU and have a substantial impact on overcrowding in prisons, according to the Commission. In addition, the average length of pre-trial detention varies substantially between EU countries.
Member States are urged to take the necessary steps at the national level to align practices with the recommendations. The Commission also issued a non-paper in an annex with statistical data on the divergences between EU member states in relation to different aspects of pre-trial detention.
Very high pre-detention rates can be found in seven member states: Belgium, Croatia, Denmark, Italy, Luxembourg, Netherlands and Slovenia. The percentages of detainees not serving a final sentence in these Member States vary from 45.7% to 31.5% of the prison population (from Netherlands with the highest rate of 45.7% to Italy with the still high rate of 31.5%).
A relatively high rate can also be found in at least four member states: Cyprus, France, Latvia and Sweden. For these member states the percentages of detainees not serving a final sentence vary from 26.2% to 28.5% of the prison population. Another indicator is the pre-trial detention rate calculated per 100,000 inhabitants which gives a more accurate view about pre-trial detention in a given country.
The highest indicators of the average length of pre-trial detention (in months) were found in Slovenia (12.9), Hungary (12.3), Greece (11.5), Portugal (11), Italy (6.5), Bulgaria (6.5), Spain (5.9), Romania (5.3), Luxembourg (5.2) and Czech Republic (5.1).
Asked about the follow-up of the Recommendation, a Commission spokesperson replied last week that EU Member States should inform the Commission on their follow-up to the Recommendation within 18 months of its adoption. Based on this information, the Commission should submit a report to the European Parliament and to the Council within 24 months of its adoption, i.e., by the latest in December 2024.
Diplomatic row between Albania and Greece
As regards the state of play in the candidate countries, the spokesperson referred to data from the Council of Europe (CoE). Its latest report on penal statistics with data for 2022 includes figures on inmates not serving a final sentence (incl. untried detainees/pre-trial detention) and cover all its member states.
Recently, the issue of pre-detention caused a diplomatic row between Greece, an EU Member State, and Albania, a candidate country. The Greek government had invited Commission president Ursula von der Leyen and the leaders of all the candidate/pre-candidate countries in the Western Balkans to an informal dinner in Athens to discuss the enlargement process.
However, Albania’s prime minister Edi Rama was not invited. Instead, its president was invited but he declined to come. Greek has accused Albania of not respecting minority rights after an Albanian politician of Greek ethnicity was arrested in May in connection with local elections, accused of corruption (vote buying). He was put in pre-trial detention where he still remains.
The incident has strained the relations between the two countries and their prime ministers and could harm Albania’s accession process.
The Albania’s prime minister wrote recently a lengthy op-ed about the incident. Margaritis Schinas, the European Commissioner for Promoting our European Way of Life, was reportedly stating that the pre-detention was “profoundly anti-European” and risks becoming a barrier to the “Albanian people’s European aspirations”.
Greece is threatening to use its veto while Albania has responded that it is an internal matter and that it is applying the law in the same way for all its citizens. A Commission spokesperson told The Brussels Times that it is following the case and referred to EU case law but declined to comment as the case is still on-going.
The issue of pre-trial detention in the candidate countries is normally addressed in the Commission progress reports. A new enlargement package is expected in October but no date has been set yet. In last year’s report, the Commission wrote that the prison system and detention centres in Albania remain an issue of concern.
Among others the use of electronic monitoring, an alternative to pre-trial detention, has been suspended since 2017 because of an unsettled legal dispute. Albania continues to have a very high pre-detention rate compared to other countries, both in relation to the total prison population and even more in relation to its population (per 100,000 inhabitants).
The lengthy periods of pre-trial detention, insufficient and irrelevant reasons given for extending periods of detention, and its use as a disguised form of punishment are the most pressing issues in the practice of the detention, according to a joint report by the European Commission and the Council of Europe some years ago.
M. Apelblat
The Brussels Times
