THE USA JOURNALS
THE AMERICAN JOURNAL OF SOCIAL SCIENCE AND EDUCATION INNOVATIONS (ISSN- 2689-100X)
VOLUME 06 ISSUE10
56
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PUBLISHED DATE: - 10-10-2024
DOI: -
https://doi.org/10.37547/tajssei/Volume06Issue10-06
PAGE NO.: -56-60
MUTUAL RECOGNITION IN PRISON RULES
AND PRE -TRIAL DETENTION AND
DETENTION IN EU
Adriana Iuliana Stancu
Dunarea de Jos" University of Galati, Romania
ORCID ID
https://orcid.org/0009-0008-5994-3018
INTRODUCTION
Over the years, the European Parliament has called
on the Council to act on various issues of detention.
The European Parliament's decision on the
Stockholm Program calls for the establishment of a
criminal justice area in prison, the development of,
among other things, minimum standards of prison
and detention conditions and a common set of
rights for prisoners in the EU. This is reiterated in
the European Parliament's February 2011 written
statement on the violation of the fundamental
rights of prisoners in the European Union.
The Commission wishes to explore the extent to
which the issue of detention will affect mutual
trust and ultimately mutual recognition and
judicial cooperation within the European Union.
Although detention and prison management are
the responsibility of Member States, the
Commission is concerned with this issue because
of the fundamental importance of mutual
recognition of judgments in the areas of freedom,
security, and justice, in compliance with the basic
Principles (Ljungquist 2006), such as: respect the
human rights of all persons deprived of their
liberty, persons deprived of liberty retain all rights
not revoked by law after imprisonment or pre-trial
detention, restrictions imposed on persons
deprived of their liberty should be reduced to what
RESEARCH ARTICLE
Open Access
Abstract
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is strictly necessary and consistent with their
stated legal objectives, detention conditions that
violate human rights cannot be justified by lack of
access, life in prison should be as close as possible
to the positive aspects of life outside the
penitentiary, each period of detention should be
administered in a manner that facilitates the
reintegration of the person sentenced to
imprisonment into free society, cooperation with
external social services and participation of civil
society in prison life should be encouraged as
much as possible, correctional officers perform an
important community service and their work,
training and working conditions should enable
them to provide a high level of care to prisoners,
and all detainees should be regularly monitored by
the government by an independent agency.
The Perception of the situation in the EU
For mutual recognition to work effectively, there
must be a common basis of trust between judicial
authorities. Member States should know each
other's criminal justice systems better.
In its ruling on the “mole book” to enhance the due
process rights of criminal suspects, the Panel noted
that the length of time a person is held in pre-trial
and post-trial detention varies greatly from
Member to Member. “Pre
-trial detention is harmful
to the individual, can undermine judicial
cooperation between Member States and does not
reflect the importance of the European Union”.
Detention is not intended here for purposes other
than criminal convictions pursuant to Article
5(1)(a), (b) and (c) ECHR. (e.g. arresting migrants)
is also considered.
Measures taken
The Council asked the Council to present a Green
Paper on pre-trial detention. This document, which
is part of the procedural rights package, is the
Commission's response to the Council's request.
The Green Paper covers the relationship between
detention conditions and the European Arrest
Warrant, as well as pre-trial detention, and opens
a broad public consultation based on the ten
questions set out in the document.
Arrest may be ordered under the obligation to
respect the EHR, a right to liberty closely related to
the presumption of innocence (Article 5). Article
48(1) of the EU Charter states that “any person
charged with a criminal offense shall be presumed
innocent until proven guilty by law.” Article 6(2)
ECHR and ICCPR17 contain provisions on the
presumption of guiltlessness. According to the
Green Book, pre-trial detention lasts until
sentencing. Pre-trial detention is an extraordinary
measure in the judicial system of all member
states. It is used only when all other measures are
considered insufficient. In some European
systems, pretrial detention is even defined by a
constitutional provision that supports freedom
with the presumption of innocence. It limits the
circumstances in which judicial pretrial detention
is authorized and specifies specific criteria and
procedures for its use. For example, it should be
used after a court determines that defendants pose
a flight risk, endanger the safety of the public,
victims or witnesses, or interfere with
investigations. Arrested defendants must be
supervised in all cases and have the right to be
released on trial. Arrested accused should be a
priority in the trial. The principle of equality in
criminal proceedings requires that coercive
measures, such as pre-trial detention or
alternatives to such detention, be used only when
and only if necessary. It is the responsibility of the
national judicial authorities to ensure that the pre-
trial detention of the accused is not prolonged, and
that the execution of the requests is based on the
principle of innocence and the right to liberty, as
well as the prosecution.
The length of time a person is held in pre-trial
detention varies from one Member State to
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another. ECHH jurisprudence establishes that pre-
trial detention should be treated as an
extraordinary
measure
and
non-custodial
measures should be used whenever possible. But
in practice, foreigners are often disadvantaged as
bailiffs because they are considered a greater flight
risk than national defendants. Consequently, the
other defendants were sentenced to prison and
later acquitted for lack of jurisdiction. Some
countries have no legal limits on pretrial detention.
In some cases, a person can be sentenced to 4 years
in prison. Pre-trial detention is personally harmful
and in some Member States long-term detention
can undermine mutual trust.
The judicial system must use such a coercive
measure as an alternative to pre-trial detention if
it is sufficient to eliminate the risk of escape or
recidivism. These authorities can issue an MEA to
secure the return of a person wanted by a court
who has been sentenced to prison and allowed to
return to their country of origin. This option could
allow judges to use pretrial detention in a more
balanced way to release people accused of crimes
outside their jurisdiction and reduce pretrial
detention periods (Christophers, Alite 2023).
Finally, Article 47 of the EU Charter and the
Convention to ensure that everyone has the right
to be tried or released in an ongoing trial and that
such release can be accompanied by external
guarantees.
The question is whether a judicial review of the
reasons for pre-trial detention and/or a legal
maximum period for pre-trial detention would
increase trust among member states.
The right to a speedy trial and pre-trial release
(unless there are good reasons to keep a person in
pre-trial detention) is an important right. Some
Member States have legal maximum conditions for
pre-trial detention. Under Article 5 of the ICCPR,
pre-trial detention is subject to judicial review and
should be interpreted as a recurring obligation on
the part of investigating and prosecuting
authorities to justify the continued pre-trial
detention of a suspect.
- Council of Europe Recommendation 2006-1322
on pre-trial detention establishes the conditions
for pre-trial detention and protection against
abuse. Recommends measures to periodically
review the reasons for preventive arrest by the
court.
The Commission wants to determine whether
legally enforceable rules, such as EU minimum
rules on the periodic review of grounds for
detention, can improve mutual trust.
Matters related to detention are within the
competence of Member States, regardless of
whether they concern pre-trial detainees or
detainees. However, there are reasons why the
European Union should consider these issues
regardless of the principle of subsidiarity.
The question of accession is within the competence
of the European Union because, firstly, it
represents a relevant aspect of rights that must be
protected in order to promote mutual trust and
ensure the proper functioning of mutual
recognition instruments and, secondly, it supports
certain values of European Union.
To promote mutual trust, the Council's priorities in
the criminal justice system are to strengthen
procedural rights through minimum rules for
those suspected or accused of crimes. A minimum
standard of protection of individual rights will be a
necessary balance for judicial cooperation
measures that not only benefit the people of the
Union, but also strengthen the powers of
prosecutors, courts and investigators and increase
mutual trust.
To this end, the Council has developed a series of
measures on the procedural rights of suspected
and accused persons, which will help to achieve the
necessary mutual trust between judicial officials,
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considering the differences between the customs
and legal systems of the Member States.
The Council has already underlined the
importance of respecting fundamental rights in the
EU to help foster mutual trust between Member
States. The lack of confidence in the effectiveness
of fundamental rights in the implementation of
Union law in the member states will prevent the
operation and strengthening of cooperation
instruments in freedom, security and justice.
The Charter of Fundamental Rights of the
European Union (EU Charter) sets the standard for
the implementation of EU law by all member
states. The European Court of Human Rights
(ECHR) has ruled that unacceptable conditions of
detention may constitute a violation of Article 3 of
the European Convention on Human Rights
(ECHR). Article 4 of the EU Treaty is drafted in the
same way as Article 3 of the ECHR, and the two
provisions are identical and co-extensive. Article
19(2) of the UN Charter also states that no one may
be extradited to a country where he would be at
risk of inhuman or degrading treatment (Litton,
Wharton 2016).
Although criminal laws and procedures in all
member states are subject to ECHR standards,
there are doubts when using the EU law, they must
follow the EU regulation on how the standards in
EU are applied.
Proposals include the right to be heard and
explained
in
criminal
proceedings
(2010/64/2010B adopted in October 2010), the
right to information in criminal proceedings,
access to a lawyer and the right to communicate in
custody (Coyle 2005), vulnerable persons,
suspects and will include defence and access to
legal aid for the accused -
“A strategy for the
effective implementation of the Charter of
Fundamental Rights by the European Union”
- COM
(2010) 573.
CONCLUSIONS
Detention conditions can directly affect the
operation of the principle of mutual recognition of
court decisions. Detainees and parolees are subject
to the same terms of detention. Allegations of
prison overcrowding and poor treatment of
prisoners could undermine the confidence needed
to continue judicial cooperation within the
European Union.
The principle of mutual recognition is based on the
idea of mutual trust between member states. Court
decisions must be recognized and enforced as
equivalent throughout the Union, regardless of
where the decision was made. This assumes that
criminal justice systems in the EU are at least
equal, if not uniform (Leech 2024).
Judgments are usually enforced by the judges of
the executing state. These judges must be satisfied
that the initial decision was made fairly (i.e. the
person's rights were not violated when the
decision was made) and that the person's rights
will be fully respected when the person is returned
to another Member State.
Without mutual trust in detention, the European
Union's mutual recognition instruments affecting
detention will not work properly, as one Member
State is unwilling to recognize and implement a
decision taken by the authorities of another
Member State. Without greater efforts to improve
detention conditions and promote alternatives to
detention, it may be difficult to develop closer
judicial cooperation between Member States.
Several instruments of mutual recognition of
conditions of detention may be affected: the
instruments concerned are the Council's European
Arrest Warrant, the transfer of detainees, the
mutual recognition of alternative sanctions and
judicial procedures and the European supervision
order.
Acknowledgement
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The paper was achieved within the project
unfolded by “Dunărea de Jos” Universit
y of Galati
entitled: “Developments and Perspectives in
Contemporary Law”, financing Contract no
RF2469/31.05.2024.
REFERENCES
1.
Christophers, N. & Alite, J. (2023). Prison Rules.
Independently published, pp. 87-88.
2.
Coyle, A. (2005). Understanding Prisons: Key
Issues in Policy and Practice. Maidenhead:
Open Univ Pr, pp. 202-207.
3.
Leech, M. (2024). The Prisons Handbook 2024.
UK: prisons.org.uk, pp. 71-77.
4.
Ljungquist, T. (2006). Mutual Recognition of
Non-custodial Pre-trial Supervision Measures
in the European Union. Revue Internationale
de droit pénal, Volume 77, Issue 1-2, pp. 169-
175.
5.
Lytton, C. & Warton, J. (2016). Prisons &
Prisoners. South Carolina: CreateSpace
Independent Publishing Platform, pp. 89-92.
