The European Union relies on the idea of mutual trust between Member States. In areas where national laws and practices differ widely across the EU, this mutual trust becomes harder to foster. This was the issue at the heart of a Green Paper released by the European Commission in June 2011: Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention. The main judicial instruments affected by a lack of mutual recognition are the European Arrest Warrant (EAW), which requires the surrender of people wanted for trial in another Member State, and the European Supervision Order (ESO), which is a discretionary order due to be implemented in December 2012 and will enable people facing trial to serve a supervision order in their country of residence regardless of where the suspected crime was committed. Both of these measures require a high degree of trust between Member States in order to function properly.
Seventy-nine responses were submitted by Member State governments, prison administrations, and a wide range of NGOs and Civil Society groups interested in criminal justice, including QCEA. It is disappointing to note that only seventeen of the twenty-seven Member State governments responded to the Green Paper. They answered questions on pre- and post-trial alternatives to custodial sentences; how Member States differ in relation to detention conditions and practices and how these could be better monitored; how mutual trust could be strengthened between Member States; and what role the EU could play in this area. There was also a specific question on the detention of children. The questions produced a range of varied and valuable responses. However, three key issues stand-out as most important for an assessment of mutual trust in criminal justice.
The first issue – and one which invited a range of reactions – was whether there would be benefit in setting minimum detention standards and maximum time limits on pre-trial detention. With detention conditions and pre-trial practices varying so much across the EU, on the surface of it there would certainly appear to be merit in EU-wide regulation. Indeed, when asked whether Member States would benefit from binding maximum pre-trial detention periods it was described by two respondents – an NGO working on drug addiction and a law society – as ‘a matter of the utmost importance’ and ‘necessary and even urgent’. The Belgian Ministry of Justice illuminates this problem: they write that the number of people held in pre-trial detention in 2010 was at thirty-three per cent of the total number imprisoned.
The solution, however, is not so straightforward. Many Member State governments argued that this was outside of the EU remit. The Polish Ministry of Justice, for example, write that such measures would ‘require an extensive unification’ of criminal proceedings in Member States ‘which does not seem feasible at the moment in the context of the powers of the European Union’. Similarly, with international regulations and guidelines in this area already in existence in the Council of Europe and the United Nations, it is not simply a case of creating new regulation at EU level. What is needed is for Member States to be encouraged and assisted in implementing these regulations nationally. Similarly, some countries, such as Finland, have no maximum time limit on pre-trial detention and yet it boasts among the shortest average time spent in custody pre-trial at 3.5 months. There is also a fear that EU-wide maximum time limits may create a situation where the maximum time becomes the norm, with little incentive to reduce this.
The issue of alternatives to detention, both pre- and post-trial, also attracted very varied responses. Member State governments were keen to list the variety of alternatives in place in their countries and how effective they are. It was also highlighted that pre-trial detention cost Europe €5.2 billion in 2006 while alternatives cost far less. Electronic Monitoring, or tagging, was frequently cited as an alternative in many Member States. France, for example, currently has 8,140 convicted persons who were electronically tagged out of 71,742 in total. Successful electronic monitoring systems, combined with other programmes such as drug rehabilitation or community service, offer a cheaper and more rehabilitative option to a prison sentence.
However, many of the other responses were less enthusiastic about the current use of alternatives across the EU. First, there are problems with implementation which limit their success. The initial costs of applying electronic monitoring can prove too high for many Member States and often the technology involved is not adequate. For instance in Belgium the system is in place but the tags can only signal that a person is out of range of their transmitter and not where they have been. There are also serious questions about the very damaging effects of electronic tagging as an alternative to detention. Ban Public, an association facilitating communication on incarceration, writes that wearing an electronic bracelet for more than a year can lead to clinical depression for the wearer. Similarly, Caritas France, states that this distress can become so bad that the sufferers ask to be returned to prison. As with conditions and time limits, what is needed with alternatives to detention is not more legislation but more research into the proper use of existing legislation.
Finally to what can be done at EU level. The government responses were divided on the issue of whether it was necessary or even appropriate to have further EU control over Member States’ judicial legislation. By focusing on the possibility of more legislation at European level, the Green Paper is missing more basic issues, and this was highlighted by many of the non-governmental responses. The Council of Europe already has guidelines in place, not only with the European Convention on Human Rights (ECHR), but also through the Committee for the Prevention of Torture (CPT) which carries out visits to prisons across Europe, helping protect citizens and monitor prison conditions. The UN has a similar optional protocol called Optional Protocol to the UN Convention Against Torture (OPCAT). States which ratify the OPCAT are required to implement National Preventive Mechanisms within thirteen months of ratification which are designed to monitor conditions in all places of detention. Four EU Member States have still not signed the OPCAT, while seven more have signed but not yet ratified it.
The focus therefore needs to shift from creating new guidelines towards ensuring those already existing are complied with, and three suggestions from the responses stand out here. The first is that, instead of creating new laws, the EU could support Member States financially and practically in their judicial procedures to help them instigate effective alternatives to imprisonment, speed up trial processes to reduce pre-trial detention periods and improve prison conditions. One response also suggests that EU institutions could ‘engage in mass campaigns to disseminate data on the effectiveness of alternative measures’ to increase public support for alternatives which often receive negative press. Change also needs to occur from the bottom up. Legislation is only as effective as those who implement it. This means judges, prison administrators, and all those involved in the judiciary are helped with training, exchange of best practice, and given the tools in order to carry out their responsibilities. Finally, the scope for change must widen if real improvements in mutual trust are to be made. As the Irish Ministry of Justice highlights, ‘prison detention conditions cannot be dealt with in isolation from other challenges facing the country’. Mutual trust cannot be strengthened simply through EU legislation; real change has to be made at all levels, and it is hoped that the European Commission will consider this when shaping the future of EU criminal justice.