tional human rights monitoring mechanisms, such as the UN Human Rights Committee or the UN Committee against Torture (CAT). While the issuing of recommendations to the judiciary is certainly a contentious issue, there is an existing practice within the EU of some NPMs address recommendations to the judiciary, which is in line with CAT and OPCAT. NPMs should define their own strategy in this regard, in line with their national legislation, so that any such approach is well-founded and not on an ad hoc basis. Ideally the NPM’s approach will be coupled with additional trust building and awareness measures, such as through fostering of personal contacts. An example of recommendations to the judiciary: Addressing overcrowding and proposing alternatives to detention Overcrowding can directly affect the risk of Art. 3 violations in relation to detention conditions. As the Commission has outlined in its Green Paper on Detention, overcrowding and conditions of detention in EU Member States also have an effect on mutual trust and thus on the practical execution of mutual recognition instruments across the EU.268 Since overcrowding is a serious concern within many EU Member States it would be a question both for judges and NPMs, what could be the role in addressing this issue. As discussed in the previous chapters, the EU has adopted two more recent instruments (FD ESO, FD PAS) that can be used as additional instruments to bolster recommendations. One NPM at the workshop of this project mentioned, that by having introduced the FD ESO and the FD PAS, the EU sent an important message to states that alternatives to detention should be favoured and that the mere existence of the instruments could help increase the use of alternatives. As outlined in Part 1, while there are some examples of their application, for the most part these two instruments however continue to be very much underused and thus the lack of application of alternatives to detention contributes to the overcrowding endemic. Overcrowding directly relates to the NPM’s mandate of preventing ill-treatment and thus issuing recommendations to the responsible authorities on this issue. This might not always be easy, as several NPMs confirmed that there is a general view amongst members of the public that persons accused of a crime, or indeed those convicted, do not deserve better treatment. There can be a general misconception amongst the public regarding pre-trial detainees that “if they are there, they must have done something wrong. The presumption of innocence doesn’t exist.”269 This can deflate political will to instil change or improve conditions. Thus proposing alternatives to detention can also be problematic for judges, often found to be more controversial than directing a custodial sentence, as suggested by one of the EU NPMs during the workshop discussions: “I think that judges are not convinced about the results of alternatives to detention and rather consider that detention will have results. Additionally, they are used to giving penalties and issuing alternatives to detention is more complex.” At the same time, judges and their sentencing practices play a crucial role regarding the situation of overcrowding. In circumstances where persistent overcrowding constitutes a systemic issue, NPMs will normally issue recommendations to a number of different actors and several NPMs have addressed the role of the judiciary in responding to the impact of overcrowding. 268 COM(2011) 327 final page 3 Available at http://ec.europa.eu/justice/policies/criminal/procedural/docs/com_2011_327_en.pdf. 269 Interview with Slovenian NPM, 31.8.2016. 72