Where’s my lawyer? Making legal assistance in pre-trial detention effective 5. Alternatives to detention • Prosecutors should be required by law to base their arguments in favour of detention only on individualised evidence which was shared with the defence prior to the pre-trial detention hearing. In principle, pre-trial detention is a measure of last resort and, as a matter of law, most countries define it as such. In parallel, many Member States (including all the project partner countries) have adopted alternative measures to detention, such as house arrest and/or electronic supervision, cash bail, etc. In practice, however, it tends to be up to the lawyer to argue for alternative measures to detention to counter the prosecutor’s application for pre-trial detention. It is therefore key that lawyers are in a position to suggest and argue for individualised alternatives to detention, but research shows that they continue to face numerous obstacles in this respect. Alternatives to detention remain the exception and pre-trial detention the norm. • Lawyers should be allowed to put forward evidence against pre-trial detention. • Judges should actively ensure that the defence has had sufficient time to examine and comment on prosecution arguments (and supporting evidence) for detention, prior to making a decision, and must not rely on any evidence that has not been sufficiently examined by the defence. • Judges should be required to refer to both the arguments of the prosecution and the defence (insofar as they are made by each side). This could potentially impact not only the quality of judicial decision-making but may also have the effect of encouraging better quality advocacy by both parties. a. Judges tend to follow prosecutors Many of the challenges faced by lawyers, highlighted in the sections above, mean that the defence is often ill-prepared for detention hearings. Lawyers regularly report that judges tend to favour the prosecutor’s arguments. For instance, HFHR’s recent report shows that in Poland, each year since 2013, over 90% of the examined prosecutorial requests for pre-trial detention were successful.84 Our report from 2016 showed that “as a result of the insufficient time and resources for independent judicial review, lawyers in many of the studied countries noted a judicial bias toward the prosecution.” This was found to be in part “due to inequality of arms, such as unequal access to information, evidence and resources”; in other cases, this bias resulted from “a cultural product of judicial mind-sets.”85 • 84 85 The continued bias toward the prosecution was identified in all project partner countries as a significant impact on the use of alternatives to pre-trial detention. For instance, in Greece, practitioners reported that judicial authorities appear to have more confidence in the arguments of the prosecution while there is some prejudice against the honesty of the arguments and evidence put forward by the defence. As an example, it was noted that witnesses proposed by the accused are not examined. In Hungary, with an overreliance on prosecutorial motions even though prosecutors rarely provided actual evidence to justify the specific reasons for the initiation of the strictest coercive measures. Practitioners also noted that criminal justice actors were not sufficiently aware of the aim of pre-trial detention and of the deficiencies of the practice when compared to international standards. • Judges should be required to state publicly in their decisions why all available alternatives are not enough to ensure that the defendant will appear at court and refrain from further offences or interference with the investigation. • Criminal justice actors should receive more training on regional standards of pre-trial detention decisionmaking. • Lawyers’ unwillingness to engage and lack of knowledge: Legal and practical barriers to the ability of the defence to prepare effectively and recognition that judges are inclined to follow the prosecutor, make lawyers (understandably) less inclined to dedicate time and effort at the pre-trial stage, despite its significant impact on their client’s liberty and the ultimate outcome of the case. In addition, it was noted in Hungary that lawyers do not have sufficient knowledge about the possibilities and conditions of turning to international bodies to challenge pre-trial detention orders issued by national courts. • The obstacles to effective legal assistance in pre-trial detention proceedings, as highlighted in this report, should be removed. • In addition, lawyers (including legal aid lawyers) should receive more training on regional standards and using regional bodies to challenge pre-trial detention orders. Helsinki Foundation for Human Rights, 2019, The trials of pre-trial detention – A review of the existing practice of application of pre-trial detention in Poland, page 13. Available here: http://www.hfhr.pl/wp-content/uploads/2019/07/HFPC_Raport_-Tymczasowe-aresztowanie-nietymczasowy-problem-EN.pdf . Fair Trials, 2016, A measure of last resort?, p. 12, para. 38. 25