Towards Pre-Trial Detention as Ultima Ratio

In many European countries, high numbers of persons are held in pre-trial detention. Pre-trial detention primarily serves procedural purposes: to prevent a suspect from absconding or from tampering with evidence. The justice system needs him or her at its disposal and quite often uses detention as the easiest way of achieving it. This is contrary to the fact that, with respect to the fundamental right to liberty and the presumption of innocence, deprivation of liberty must only be applied when less severe mechanisms are insufficient to control the suspect and to guarantee his or her presence at trial (as ultima ratio). Generally, the principle of subsidiarity must be applied in a way that the suspect or accused may await the procedure in unrestricted liberty or, in justified cases, under specified conditions. In prisons, remand detainees often suffer from worse conditions than sentenced prisoners. The European Committee for the Prevention of Torture has called this a pan-European problem. Another common problem is an often observed excessive length of pre-trial detention. It also has to be pointed out that in many European jurisdictions there is a high proportion of foreigners in pre-trial detention. The Framework Decision 2009/829 of the so-called European supervision order (ESO) could be a useful tool in this respect, but yet has not been fully implemented.

The use of alternatives to pretrial detention, however, is not without difficulties for both suspects and practitioners. In the countries represented in the project, the availability of alternatives to pretrial detention and their use vary considerably. They may take less invasive forms, such as release on recognizance with some obligations attached such as reporting regularly to the authorities. But they also may take the form of curfew, electronically monitored curfew, other forms of (police) supervision, or drug treatment. A fundamental problem that may arise from the use of alternatives to pretrial detention is the potential for net-widening and there can also be a “hidden agenda” of e.g. punitive or coercive aims, which may go beyond the legitimate goals. Further problems are the possible exclusion of foreigners or homeless persons from such alternatives. 

This projects aims at exploring and analyzing pre-trial detention practice, especially different ways of reducing the use of pre-trial detention in seven European jurisdictions. It is, on the one hand, focused on the human rights situation of the suspects who in principle should benefit from the presumption of innocence. On the other hand it addresses the views and needs of the judiciary which also depends on available alternatives as well as on other obstacles they experience with respect to the avoidance of pre trail detention. Increasingly, and this will be another focus, cross-border cases need to be solved within the EU, like for instance with the European Supervision order. The project aims at increasing mutual knowledge about other jurisdictions within the EU. Central to all project activities, although not restricted to them, are judges and prosecutors, because they are the ones who decide also dependent on and influenced by given conditions. The project is about learning from and with each other and to contribute to developments fostering the avoidance of pre-trial detention.

The project is funded by the Justice Programme of the European Commission and supported by the Austrian Ministry of Justice.

For more information see project website.

Project partners:

  • Ernst Moritz Arndt University of Greifswald, Faculty of Law (EMAU), Germany
  • The National Institute of Criminalistics and Criminology (NICC), Belgium
  • University of Utrecht, Faculty of Law (UU), The Netherlands
  • Dublin Institute of Technology (DIT), Ireland
  • Law Institute of Lithuania (LIL), Lithuania
  • Associations of Schools of Social Work in Romania (ASSW), Romania 

Project Period

January 2016 - December 2018

Project Leader

Walter Hammerschick

Executive Director

Project Members

Veronika Reidinger

Junior Researcher