4 Alternatives to detention ▪ The Framework Decision on probation and alternative sanctions and the Framework Decision on the ESO both seek to promote alternatives to detention. ▪ Both decisions provide for transferring measures alternative to detention across borders, to another EU Member State. ▪ The Framework Decision on probation and alternative sanctions deals with post-trial situations, while the Framework Decision on the ESO deals with pre-trial situations. ▪ This chapter focuses on alternatives to detention to assess the practical potential of these instruments. Detention may instinctively appear to be the logical option for dealing with suspects, accused and sentenced persons, but alternatives to detention are often the better choice. The fundamental right to liberty should only be limited when absolutely necessary. People are presumed innocent pre-trial and should thus not be detained as a rule, but only in the rare cases when they are at risk of affecting criminal investigations or absconding. UN and Council of Europe human rights instruments therefore provide that detention should not be the default, and that instead, non-custodial monitoring and other alternatives to detention – such as medical treatment, restraining orders, victim reparations or financial sanctions – should be resorted to. The European Court of Human Rights has also confirmed that some forms of post-trial detention may violate human rights. As noted, the overall purpose of the Framework Decision on probation and alternative sanctions and the Framework Decision on the ESO is to encourage alternatives to detention and the recognition thereof across EU borders. The two instruments relate to measures such as, for example, obligations to inform authorities of one’s residence or “an obligation not to enter certain localities, places or […] areas”.149 Greater use of alternatives would have a positive impact on fundamental rights generally in that detention, which is very intrusive, would be used less; social rehabilitation would be facilitated by not removing persons from society in the first place; and persons would be able to maintain or establish contacts with society, and family in particular, through more regular interaction. Alternatives to detention thus support respect for the right to family life as well as the right to dignity. To the extent that detention is used more frequently for non-citizens, based on the fear that individuals will escape beyond the reach of the national justice system, equality and non-discrimination also play a role. There is no doubt that, in certain cases, detention is the only measure possible, both as a penalty and for the protection of victims and society in general. But it is important to consider alternatives to both pre- and post-trial criminal detention. 149 See Council Framework Decision 2008/947/JHA, Art. 4; Council Framework Decision 2009/829/JHA, Art. 8. 61