While databases56 have been established to monitor the implementation of the FD PAS and to provide information to improve the cooperation between the Member States, in practice FD PAS is not as widely utilised as the others, and more needs to be done to collect and gather data on their application and use. 1.3.4. framework decision 2009/829/jha on the european supervision order The Council adopted the Framework Decision 2009/829/JHA on the European Supervision Order (FD ESO)57 on 11 November 2009, which had to be transposed by 1 December 2012. To date, all EU Member States with the exception of Ireland and Belgium have implemented the FD on the ESO.58 The European Commission is communicating with Member States on this on this matter and considers taking legal action to ensure that all Member States comply with the EU Framework. FD ESO allows pre-trial supervision measures that were imposed in one Member State (issuing State) to be supervised and enforced by another (executing State). Due to the presumption of a substantial flight risk, EU non-nationals are often more likely to be subjected to detention measures than suspects who are residents in the Member State where the alleged crime was committed.59 In some cases the maximum period can be up to four years, which impacts upon the right to liberty as enshrined in Article 47 CFREU and Article 5(3) ECHR.60 On this issue, the Commission points out in its Green Paper that a judicial authority “must apply the most lenient coercive measure appropriate, i.e. choose an alternative measure to pre-trial detention, if this is sufficient to eliminate the risks of absconding or reoffending.“61 The ESO provides for such a non-custodial alternative and thereby aims at reducing the often rampant numbers of pre-trial detainees of non-residents in the Member State where they are suspected of having committed a criminal offence.62 Over the last number of years the FD ESO has been applied rarely, although there is some indication that Member States who have implemented it have started it use it more often.63 Although Member States have to provide for at least six types of supervision measures, as per Article 56 See for example EU Probation Project ´Probation measures and available at www.euprobationproject.eu/index.php ISTEP, ´Facilitating www.probation-transfers.eu/default.asp. alternative sanctions in the EU`, Probation Transfers´, available at 57 Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to pre-trial detention (ESO), OJ 2009/L 294/20. 58 Belgium and Bulgaria had not implemented this FD, while Cyprus and Ireland are still in the process of transposing it. For the latest information on the implementation process see European Judicial network, ‘Status of implementation of Framework Decision 2009/929/JHA on supervision measures’, available at www.ejn-crimjust.europa.eu/ejn/EJN_Library_StatusOfImpByCat.aspx?CategoryId=39. 59 Christine Morgenstern, ´Die Europäische Überwachungsordnung. Überkomplexes Ungetüm oder sinnvolles Instrument zur Untersuchungshaftvermeidung von Ausländern?´ in ZIS (2014) 5, available at <www.zis-online.com> pp. 217 et seq. [hereinafter: Morgenstern (2014)]. 60 European Commission, COM (2011) 327 final, p.9. 61 Ibidem. 62 No reliable standardised data on EU foreigners in pre-trial detention is available since the statistics (e.g. Council of Europe Annual Penal Statistics [SPACE], World Prison Brief [WPB]) do not differentiate between EU and non-EU foreigners at that stage of procedure. In 2004 the European Commission estimated that approximately 6.000 EU foreigners were placed in pre-trial detention within the EU. See Commission of the European Communities, ´Accompanying document to the Proposal for a Council Framework Decision on the European supervision order in pre-trial procedures between Member States of the European Impact Assessment summary´, SEC (2006) 1080, 29 Aug. 2006, p.40. 63 From 2012 to 2016 the Netherlands issued 13 requests to other Member States under the FD ESO. 23