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.
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