By Laure Baudrihaye-Gérard, 02 April 2021
Brussels - A report by the EU's Fundamental Rights Agency, published on Thursday (1 April), found that prejudice, bias and practices such as presenting defendants in handcuffs are undermining the right to the presumption of innocence in many EU countries.
It also highlights the problem of media outlets making public references to people's guilt before or during trials.
The FRA is right to raise these concerns but there is a glaring omission: Europe's pre-trial detention crisis, which is in turn fuelling the overcrowding of prisons across member states.
Prisons across the EU are filled with people who have not yet been convicted of any criminal offence.
At any one time, there are over 100,000 people in prison waiting for a trial - one in five of the total EU prison population. These numbers have consistently grown over the past few years and are fuelling Europe's prison overcrowding crisis.
Pre-trial detention is supposed to be an exceptional measure of last resort but, as Fair Trials' work has shown, in practice it is used routinely and is applied disproportionately to non-nationals or residents, and to people from racialised and ethnic groups.
The impact on people who are detained in this way is immeasurable: their family life, employment and reputations can be destroyed. It is quite simply, one of the harshest measures that a state can take against an individual.
Europe's pre-trial detention crisis has been exacerbated by Covid-19, with people waiting longer for trials (due to court closures) and prisoners placed on lock down to control the spread of the virus in prisons.
Over the past year, pre-trial detention rates have actually risen across a number of EU member states, including Ireland, Hungary and France.
Although member states have taken some measures to release prisoners, they have failed to take action to release those being held in pre-trial detention.
Even where there were some reductions in the number of pre-trial detainees during the crisis, these rates increased again as the pandemic continued.
Yet the situation that people are facing in prison is worse than ever. They are facing a threat to their health and, even their life, due to the heightened risk of infection in detention, where it is difficult to implement effective social distancing rules.
Added to this, people in detention have faced added restrictions during the pandemic, including bans from seeing their families and a lack of access to activities and health services - even basic facilities such as showers.
Many are placed in solitary confinement as a result of strict sanitary rules, which are also used, or perceived, as a further punishment within detention. Some have faced restricted access to their lawyers and to courts at a time when it is crucial for them to prepare their defence.
The FRA's report is almost completely silent on this. It explains that the European Commission only asked it to look at aspects of the presumption of innocence already that are covered by EU law.
It is true that, despite numerous calls for action by civil society and the European Parliament, the European Commission has failed to table any legislation to tackle the overuse of pre-trial detention, despite initiating a legislative process a decade ago and a call from member states for EU action.
It is disappointing, though, that the FRA, as "the independent centre of reference and excellence for promoting and protecting human rights in the EU", didn't take the opportunity of this report to call for EU action on the most significant threat to the presumption of innocence in Europe, the use of pre-trial detention, where the absence of European standards is threatening our rights.
Instead, hope comes from the European Parliament which repeatedly called for EU rules on pre-trial detention, most recently in their resolution concerning the European Arrest Warrant of 21 January.
There have been also calls from different members of the European Court of Justice, namely attorney general Pitruzella who said: "the EU legislature must urgently address the question of harmonisation, however minimal, of pre-trial detention as it is ultimately the European area of criminal justice that is under threat."
If the presumption of innocence and rule of law are to have real meaning in the EU, we need urgently to tackle the inhumanity of how we jail thousands of people, who have not been convicted of any offence.
This will ultimately require cultural shifts in prosecutors' and judges' attitudes to imprisonment, public safety and risk. It will also require structural change to address the prejudice and bias that means some people are treated as less worthy of legal protection and too risky to release.
Clear EU legal standards could, though, kickstart this work by making it crystal clear that pre-trial detention can only be used as a measure of last resort in exceptional cases and for a limited period of time.
I therefore urge the FRA to support calls by the European Parliament and civil society for EU legislative action to address Europe's pre-trial detention crisis.
Laure Baudrihaye-Gérard is legal director of Fair Trials (Europe).
The views expressed in this opinion piece are the author's.