chapter 3. the framework decisions on detention as chances for the prevention of ill-treatment Three ways have been described in which fundamental rights concerns of mutual recognition instruments have been addressed in legislation.194 The first is through the insertion of fundamental rights refusal grounds in subsequent legislation, the second through implementing the principles of proportionality, the third is through the use of “parallel mutual recognition instruments.”195 The FD PAS and FD ESO constitute such parallel instruments that provide for alternatives to detention both at the pre and post-trial phase of criminal proceedings and thereby directly and indirectly contribute to the prevention of ill-treatment. While the previous segment of this paper identified how the FD on detention can present challenges to the prevention of ill-treatment, this chapter will consider possible chances for the prevention of ill-treatment primarily by offering alternatives to detention. 3.1. alternatives to custody and the prevention of ill-treatment According to the UN High Commissioner for Human Rights, in his 2015 report on the human rights implications of over incarceration and overcrowding, approximately 3 million people of 10.2 million of those incarcerated worldwide are in pre-trial detention.196 The United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) adopted by the General Assembly aim to promote the use of non-custodial measures at all stages of the administration of criminal justice, with a view to inter alia avoiding unnecessary use of imprisonment and addressing the requirements of social justice and the rehabilitation needs of the offender.197 The rationale behind these principles stems from a position, that there “is a growing belief that non-custodial sanctions and measures may constitute a better way, providing penalties that are proportionate to the offence committed by the offender and that carry greater possibilities for the rehabilitation and constructive reintegration of the offender into society.”198 The commentary to the Tokyo Rules details the value of non-custodial measures for offenders and the community, and describes that often prisons in addition to being a financial burden on the state, do not better an individual’s reintegration into society, which impacts upon recidivism rates.199 Addressing recidivism rates might indirectly also impact the prevention of ill-treatment. As it would lead to fewer prisoners and a reduction of overcrowding which again would improve prison conditions. During the course of the final conference as part of this Study, Anton Van Kalmthout, a member of the CPT, confirmed that pre-trial detention is of “high concern” and the fundamental preconditions for the application of pre-trial detention should be that it is a measure of last resort, 194 Mitsilegas, Research Handbook on EU criminal law p. 152. 195 Ibid. p. 152. 196 UN High Commissioner for Human Rights on the Human rights implications of over incarceration and overcrowding A/ HRC/30/19 page 3. 197 United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) Adopted by the UNGA resolution 45/110 of 14 December 1990. 198 Commentary on the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) available at https://www.ncjrs.gov/pdffiles1/Digitization/147416NCJRS.pdf. 199 Ibid. at page 5-6. 50