it should be applied for the shortest possible duration, and applicable to serious crimes, applying a proportionality test.200 A further issue particular to those in pre-trial detention and in addition to the problems related to overcrowding which is linked to ill-treatment, is the specific exclusion pre-trial detainees face. It is often the case that those on remand are denied access to activities directed available to sentenced prisoners. The link between overcrowding and Article 3 ECHR was also noted by the former UN Special Rapporteur on Torture: “The negative impact of the overuse of incarceration on human rights is manifold. The overuse of imprisonment constitutes one of the major underlying causes of overcrowding, which results in conditions that amount to ill-treatment or even torture.”201 Both the CAT Committee and the CPT have stated that overcrowding “has been established to constitute a severe form of ill-treatment, in human or degrading treatment.”202 Having identified overcrowding as one of the problems contributing to violations of Article 3 ECHR, how then to address these issues through the practical implementation of procedures that tackles this problem? The UN General Comment on Article 9 of the ICCPR noted the obligation on the judiciary to consider from the outset alternatives to detention. Indeed, in relation to pre-trial detention it states that detention in custody in those cases should be the “exception rather than the rule.”203 In cases where the defendant is a non-national that reason alone must not automatically equate a flight risk: “Courts must examine whether alternatives to pre-trial detention, such as bail, electronic bracelets or other conditions, would render detention unnecessary in the particular case. If the defendant is a foreigner, that fact must not be treated as sufficient to establish that the defendant may flee the jurisdiction. After an initial determination has been made that pre-trial detention is necessary, there should be periodic re-examination of whether it continues to be reasonable and necessary in the light of possible alternatives.”204 The Commission, when assessing the Framework Decisions on detention in 2014, referred to them as being part of a “package of coherent ad complementary legislation that addresses the issue of detention of EU citizens in other Member States and has the potential to lead to a reduction in pre-trial detention or to facilitate social rehabilitation of prisoners in across-border context.”205 The report went on to note the ‘operational links’ between the Framework Decisions on detention relating to alternatives to detention both pre and post-trial and the FD on the EAW as discussed in the previous chapter. 200 Final Conference Vienna, 16th and 17th November 2017, comments of A.M van Kalmthout session 2 16th November 2016. 201 A/HRC/30/19 available at https://documents-ddsny.un.org/doc/UNDOC/GEN/N13/422/85/PDF/N1342285.pdf?OpenElement. 202 Ibid. at paragraph 15 referring to SAT/OP/BRA/1 para 75, CPT/Inf(92) 3 at para 46 and CAT/OP/MLI/1 para 49. 203 UN Human Rights Committee (HRC), General comment no. 35, Article 9 (Liberty and security of person), 16 December 2014, CCPR/C/GC/35, available at: http://www.refworld.org/docid/553e0f984.html [accessed 27 May 2016] at para 38 204 UN Human Rights Committee (HRC), General comment no. 35, Article 9 (Liberty and security of person), 16 December 2014, CCPR/C/GC/35, available at: http://www.refworld.org/docid/553e0f984.html [accessed 27 May 2016] at para 38 205 COM (2914) 57 Final Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention. 51