3 Detention: extent and concerns, including radicalisation ▪ Of the three Framework Decisions, only the Framework Decision on transfer of prisoners focuses on post-trial detention. ▪ This chapter explores various aspects of detention in the EU to assess the potential of this instrument. ▪ This chapter also looks at the extent to which detention is used in the EU and highlights fundamental rights concerns. A section is devoted to detention’s connection to radicalisation. ▪ This chapter, as well as the whole report, deals exclusively with criminal detention – other forms of detention, especially detentions of asylum-seekers, are outside of the scope of this research. The fundamental right to liberty – such as expressed in Article 6 of the Charter and Article 5 of the ECHR (“Every­o ne has the right to liberty and security of person”) – is obviously not absolute. State authorities may restrict a person’s liberty and even detain them as a precaution (pre-trial) or as a sanction (post-trial). Pre-trial detention is applied before the (final) judgment; when imposed, a suspect or accused person awaits trial in a detention facility. Such detention is compatible with the ECHR as long as it is in accordance with law and reasonably considered necessary to prevent a suspect from committing an offence or fleeing (Article 5 (1) (c) of the ECHR). However, the detention must be proportional, meaning it must be strictly necessary to ensure the suspect’s presence at the trial and no less stringent measure could have sufficed for that purpose.130 Post-trial detention is the deprivation of a person’s liberty after a conviction by a competent court (Article 5 (1) (a) of the ECHR). According to the standards adopted by the ECtHR, the detention has to be in accordance with national law 131 and must follow fair trial proceedings.132 The extent to which detention is used is revealing. While there can be significant discrepancies between legal systems due to procedural differences, the comparative use of pre-trial detention particularly says a lot about a legal system. Prior to a judgment, a person should be presumed innocent, and restricting liberty so severely as to detain a person must only be used very sparingly. The significance of pre-trial detention is underscored by the fact that in the Sustainable Development Goals, one of two indicators for access to justice is the proportion of pre-trial detainees among the total number of detainees (pre- and post-trial). 130 ECtHR, Ladent v. Poland, No. 11036/03, 18 March 2008, para. 55. 131 ECtHR, Del Río Prada v. Spain, No. 42750/09, 21 October 2013, para. 125. 132 ECtHR, Willcox and Hurford v. the United Kingdom, Nos. 43759/10 and 43771/12, 8 January 2013, para. 95. 53