Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers
goals, as provided by the two Framework Decisions
dealing with alternatives to detention.
As indicated, justifying a disproportionate application
of pre-trial detention to citizens of other EU Member
States with the risk of escape can have discriminatory effects. There is also rather significant divergence
among EU Member States when it comes to the types of
alternatives to detention, particularly in terms of when
and under what conditions they are used, both preand post-trial. FRA’s research shows that authorities can
choose from a wide range of alternatives to detention,
which can be tailored to the individual circumstances
of a case to achieve the best outcome – for example,
barring orders to protect victims or medical rehabilitation to treat offenders with addictions. However, these
options are applied quite differently across Member
States. Some states have limited sentencing options; for
example, just over half of the EU Member States have
the possibility of conditional sentencing, which postpones the imposition of a sentence in favour of community supervision measures. The availability of such
measures offers a de facto second chance to offenders
while also deterring reoffending.
There is room for EU Member States to use alternative measures both for new and repeat offenders. All
Member States offer early conditional release from
prison sentences, which allows offenders a chance
to reform and reintegrate into society. Some regimes
are more restrictive than others, and most states have
different rules for release from detention – for example, only for certain types of offences or after a certain period of time. The research also shows that many
states have alternative sanctions with the victim in
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mind, including financial reparations or a formal apology
from offender to victim. A more harmonised approach
to, and greater use of, alternatives to detention across
EU Member States would not only bring practice more
in line with international human rights standards but
would also facilitate applying the Framework Decisions
to their full extent. All this would also reinforce mutual
trust between EU Member States.
FRA Opinion 6
International and European human rights law
requires that pre-trial detention is the exception
rather than the rule. To ensure effective
implementation of the three Framework Decisions,
EU Member States should treat detention as a last
resort – especially at the pre-trial stage, when
suspects have not been found guilty. This will
also reduce costs, improve detention conditions,
and facilitate social rehabilitation. Greater use
of alternatives to detention, both pre- and posttrial, must be achieved across EU Member States,
with the greatest importance reasonably to be
placed on the pre-trial phase.
To ensure effective implementation of the three
Framework Decisions, the EU and the Member
States must ensure a more harmonised approach
across the EU in terms of when detention is
used, what alternatives to detention are in
place and when they are used, and what social
rehabilitation entails. This would also reinforce
mutual trust across EU Member States, which
is the basis for effective mutual recognition of
judicial decisions.
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