Rights behind bars: Access to justice for victims of violent crime suffered in pre-trial or immigration detention Pre-trial detention has long been linked to overcrowding and inhuman and degrading detention conditions. According to the CPT, “the persistent problem of overcrowding in prisons, with all its related challenges, has to be ascribed to a large extent to the high proportion among the total prison population of remand prisoners.”164 The European Commission has previously recognised this impact in its Green Paper of 2011: “[e]xcessively long periods of pre-trial detention are detrimental to the individual, can prejudice judicial cooperation and do not represent the values for which the EU stands.”165 In turn, prison overcrowding has a direct impact on the risk of violent crime occurring in detention:166 “[o]vercrowding in particular has an impact on the physical and mental health of the individual, including through violence. It also has a negative impact on rehabilitation, including anti-radicalisation efforts.”167 Detention generally “may expose the individual to maltreatment and violence, with a particular impact on vulnerable groups.”168 Even if existing procedural safeguards were fully implemented, they would not provide a complete answer to the overuse of pre-trial detention across the EU and would not tackle the overcrowding in Europe’s detention facilities that this creates. The excessive use of pre-trial detention is an EU-wide problem, with EU-wide impacts. It requires an EU-wide solution. Regional action should take the form of EU legislation that is binding on Member States. This should build on existing ECtHR standards, making them clearer, more practical and more accessible to Member States. Legislation is within the EU’s competency and would help tackle a grave threat to human rights in Europe.169 Legislation limiting the grounds to put someone in detention has been adopted by the EU in the context of immigration detention,170 this can also be achieved in the context of pretrial detention. The EU should tackle the overuse of pre-trial detention by setting minimum standards that seek to limit the ability for Member States to order pre-trial detention so that it is only used as a measure of last resort. Moreover, regarding both immigration and pre-trial detention, viable alternatives to detention should be promoted and adopted. Recommendation 2: Legislation standards on detention conditions setting minimum The absence of EU law on detention conditions was recently highlighted by the CJEU.171 It has negatively impacted mutual trust between judicial authorities across the EU, with severe consequences on the functioning of the cross-border judicial cooperation instruments that are key to the creation of an EU area of freedom, security and justice. We estimate that currently, only one in three European Arrest Warrants result in surrender. Risks of human rights violations, largely linked to detention conditions, are becoming a growing reason for refusal.172 Legislation on detention conditions has been adopted by the EU in the context of immigration detention,173 this can also be achieved in the context of pre-trial detention. The EU should legislate on minimal detention conditions applicable to all places of detention, including but not limited to immigration and pre-trial detention. Legislation should include the obligation to provide effective means to access and exercise Victims’ Rights and other EU procedural rights in detention. 164 CPT, Remand detention, Extract from the 26th General Report of the CPT, 2017, p. 1, available at: https://rm.coe.int/168070d0c8. 165 European Commission, Green Paper, Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention, 2011, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011DC0327&from=EN. 166 See e.g.: Penal Reform International, Global Prison Trends 2019, p. 8, available at: https://cdn.penalreform.org/wp-content/uploads/2019/05/PRI-Global-prison-trendsreport-2019_WEB.pdf); UNODC, Handbook on strategies to reduce overcrowding in prisons, p. 11, available at: https://www.unodc.org/documents/justice-and-prison-reform/Overcrowding_in_prisons_Ebook.pdf. 167 EPRS, Procedural Rights and Detention Conditions, Cost of Non-Europe Report, p. 35, available at: http://www.europarl.europa.eu/RegData/etudes/STUD/2017/611008/EPRS_STU(2017)611008_EN.pdf. 168 EPRS, Procedural Rights and Detention Conditions, Cost of Non-Europe Report, p. 31, available at: http://www.europarl.europa.eu/RegData/etudes/STUD/2017/611008/EPRS_STU(2017)611008_EN.pdf. 169 For detailed recommendations, please refer to Fair Trials, A Measure of Last Resort? The practice of pre-trial detention decision making in the EU, p.44, available at: https://www.fairtrials.org/sites/default/files/publication_pdf/A-Measure-of-Last-Resort-Full-Version.pdf. 170 Article 15 of Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country Nationals. 171 CJEU, Case C 128/18, Dorobantu, judgment of 15 October 2019. 172 Fair Trials/JUSTICIA statement available at: https://www.fairtrials.org/sites/default/files/publication_pdf/20190731_PTD_Brief_IP_V07_JUSTICIA.pdf. 173 Article 16 of Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country Nationals. 57