3.2.2. practical application of the eso by eu member states The effective implementation of the ESO, which seeks to address the fundamental rights challenges outlined above, remains uncertain216 and from the existing information it seems, that it is rarely applied by EU Member States217. UK The UK noted that “greater use should be made of the so-called European Supervision Order.”218 In support of this position, the report referred to the case of Andrew Symeou. In that case, Mr Symeou, a British national having been surrendered on foot of an EAW was refused bail in Greece and spent 10 months in pre-trial detention in Greece, in a case that took four years before the trial took place, which led to his ultimate acquittal.219 Mr Symeou had been refused bail on the grounds that he was not a Greek resident, notwithstanding the fact that there was an apartment in Athens belonging to a relative that he could have stayed in while awaiting trial. An aggravating factor was the delay in the trial process, as well as the repeated adjournments compounded by the poor prison conditions in Greece recognised in the 2009 report of the CPT.220 In that report reference was made to the chronic overcrowding and other structural deficiencies and generally the conditions in some prisons that amounted to cruel and inhuman treatment. Specific reference in the report was made also to conditions at Korydallos prison in which Mr Symeou was held for much of his detention. A 2009 Human Rights Report on Greece issued by the US Department of State addressing prison conditions in Greece noted that they did not meet international standards.221 The case of Andrew Symeou serves to highlight the possible benefits of the ESO, as the objective of the ESO is to address exactly those situations, and the potential encroachments on fundamental rights. In 2015, the first ESO was applied in the UK in a case that involved an individual returning to Spain to be monitored by the Spanish authorities, pending trial in the UK. Two separate applications were made before the Crown Court in the UK. In both cases, neither the judge nor the prosecution were aware of the FD ESO, and from the outset, the case was adjourned to allow both to consider the FD and better understand the implications. In particular the judges in both cases were concerned that the instrument be used in the right way, in the absence of specific procedural guidelines beyond the FD itself. These two examples from the UK222 involved Spanish nationals charged with criminal offences in the UK. Both cases involved young men aged between 19-30, with no previous convictions, no ties in the UK, one having a source of employment, and the other a full time student. Both cases involved allegations of a serious nature, the first an allegation of sexual assault, and the second rape. In both cases the court identified that notwithstanding the seriousness of the nature, both accused were in the normal course of events, good candidates for bail and were it not for the fact that they were non-nationals of the UK, they would have been granted bail. This is precisely the situation for 216 Bruno Min, ´The European Supervision Order for transfer of defendants: why hasn´t it worked? ´ (Penal Reform, 25 September 2015) available at www.penalreform.org/blog/the-european-supervision-order-for-transfer-of-defendants/. 217 218 There is almost no reliable data on the ESO application across the EU. 219 See Fair Trials International https://www.fairtrials.org/andrew-symeou/. A review of the United Kingdoms Extradition Arrangements, presented to the Home Secretary on 30 September 2011 available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117673/extradition-review.pdf. 220 CPT report September 2009, available at http://www.cpt.coe.int/documents/grc/2010-33-inf-eng.htm#_Toc259109946. 221 US Department of State report, 11 March 2010. 222 Interview with Richard Saynor Barrister, 23 Essex Chambers 9th November 2016. 54