Where’s my lawyer? Making legal assistance in pre-trial detention effective Pre-trial detention in the EU Pre-trial detention (depriving suspects of their liberty) is intended to be an exceptional measure, only to be used as necessary and proportionate and in compliance with the presumption of innocence and the right to liberty. Pre-trial detention, by its nature, removes the right to liberty from a legally innocent person who has not been convicted of any crime. In addition to the loss of liberty, detained individuals experience serious and sometimes irreversible impacts to their livelihood, family, and health. According to international and regional human rights standards, such a severe state action against an individual can therefore only be imposed in strictly limited circumstances. Its use must always remain a measure of last resort. Unfortunately, in the EU as around the world, these strict limitations are frequently not respected. The EU is facing a long-standing crisis in prison overcrowding that threatens to undermine mutual trust and the functioning and legality of mutual recognition instruments like the European Arrest Warrant (the EAW).1 Pre-trial detainees make up a sizeable proportion of the EU’s overcrowded prisons – approximately 23% of the total prison population by the most recent measure, comprised of some 115,112 individuals held on remand or awaiting a final sentence.2 The number of pre-trial detainees and the proportion they make up of overall prisoners varies widely between Member States, in project partner countries ranging from 9.1% in Romania (prison occupancy level: 111%)3 to 31.5% in Italy (prison occupancy level: 119.6%) in 2019.4 Given the large population of pre-trial detainees and the number of overcrowded prisons in the EU, efforts to reduce the overuse of pre-trial detention could have a substantial impact on attempts to curtail the growth of prison populations. Thus, these efforts would improve the overall inhumane prison conditions. Overuse of pre-trial detention also has significant cost implications. A recent study published by the European Parliamentary Research Service highlighted the economic cost of pre-trial detention of around €1.6 billion per year for EU Member States.5 Depending on the Member State, “one day [in pre-trial detention] per detainee costs on average 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 about €115.” The study concluded that “this amount could be reduced by either €162 or €707 million per year spent on 'excessive' pre-trial detention.”6 The question of whether the EU should act to address the excessive use of pre-trial detention has been a key issue in EU criminal justice policy-making for nearly a decade. The 2009 Roadmap on Criminal Procedural Rights (the Roadmap) states that “[e]xcessively long periods of pre-trial detention are detrimental for the individual, can prejudice judicial cooperation between the Member States and do not represent the values for which the European Union stands.”7 This was followed by the Green Paper on Detention (the Green Paper) published by the European Commission (the Commission) in 2011, which recognised that detention issues “come within the purview of the European Union as […] they are a relevant aspect of the rights that must be safeguarded in order to promote mutual trust.”8 In response to the Green Paper, the cross-party resolution of the European Parliament (the Parliament) called for legislative minimum standards due to the fact that ‘’detention issues have an impact on mutual trust, and consequently on mutual recognition and judicial cooperation.’’9 In its resolutions on reform of the EAW10 and fundamental rights in the European Union,11 the Parliament reiterated its call. Recent decisions from the Court of Justice of the European Union (the CJEU) have again pushed for regional legislation to address detention in the EU. Since its Aranyosi & Caldararu judgments,12 executing judicial authorities are required to defer the execution of a EAW until the requesting Member State has provided sufficient information to make clear whether, “in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment.”13 It further specifies that the executing authority must request of the issuing Member State “all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State.”14 If sufficient information is not forthcoming within a reasonable period of time, the judicial authority may decide to end surrender proceedings.15 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. Data gathered from World Prison Brief, International Centre for Prison Studies. Date of recording of actual data varies. See http://www.prisonstudies.org/map/europe for more detail. See https://www.apador.org/en/cum-rezolva-romania-supraaglomerarea-din-penitenciare-la-doi-ani-dupa-condamnarea-la-cedo/. See World Prison Brief, International Centre for Prison Studies, http://www.prisonstudies.org/map/europe. This includes the cost to the public related to running pre-trial facilities (including prisons) and compensation paid to individuals acquitted, as well as individual costs related to average income and property loss. See Wouter van Ballegooij, European Parliamentary Research Service, December 2017, 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. Ibid., p. 34. Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, 2009/C 295/01, available at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:295:0001:0003:en:PDF . Green Paper from the Commission, Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention, COM (2011) 327, Brussels 14 June 2011, available at: http://ec.europa.eu/justice/policies/criminal/procedural/docs/com_2011_327_en.pdf . Ibid., p. 2. European Parliament resolution of 27 February 2014 with recommendations to the Commission on the review of the European Arrest Warrant (2013/2109(INL)), P7_TA (2014)0174, para. 17. European Parliament resolution of 13 December 2016 on the situation of fundamental rights in the European Union in 2015, P8_TA-PROV(2016)0485, para. 43. Court of Justice of the European Union, Judgement of 5 April 2016 in the Joined Cases C 404/15 and C 659/15. Ibid., para 94. Ibid., para 95. Ibid., para 103. 9