3.2.1. addressing the challenges related to pre-trial detention: the rationale behind the eso The FD ESO provides that an individual charged with a criminal offence in an EU Member State can remain on bail in the country in which he or she normally resides rather than the country in which the criminal charges stem and where the prosecution of the alleged offence would be held. Recital 4 notes that the FD ESO aims at “enhancing the right to liberty and the presumption of innocence in the European Union and at ensuring cooperation between Member States when a person is subject to obligations or supervision pending a court decision. As a consequence, the present Framework Decision has as its objective the promotion, where appropriate, of the use of non-custodial measures as an alternative to provisional detention […]” The intent to promote the use of non-custodial measures is also reflected in Article 2 (b) of the FD. The pre-trial supervision measures foreseen by the FD ESO ensure that the individual would be monitored and supervised in the Member State in which they normally reside (executing state). The competent authority of the executing Member State notifies the issuing Member State should the individual breach conditions and in the event that the subject of the ESO fails to return to the issuing state to dispose of the case, then an EAW can duly issue to ensure the return. As Klipp refers to the ESO as “an innovative step by serving all interests involved.”210 The Commission highlights in its Green Paper that the successful operation of FD 829 requires a high level of mutual trust between Member States.211 The FD ESO thus seeks to provide options for alternatives to pre-trial detention to those that are normally refused bail on account of having been deemed a flight risk due to a lack of ties to the Member State where the charges originate. It is a measure that reinforces and gives effect the right to liberty and addresses the possible long term, disproportionate and more onerous effects that an individual would be subjected to through incarceration in a foreign EU Member State for long periods of time.212 As mentioned, it is recognised to be particularly difficult for a foreign prisoner to be imprisoned for long periods of time where he or she does not speak the language, and where they would not have the family support network around them. Furthermore, the FD ESO addresses hardships specifically associated with pre-trial detention of non-nationals, for example the risks to employment in the country of residence, the lengthy separation from families and the financial disadvantages.213 The FD ESO also supports the principle that detention should be a measure of last resort214 and resolves the discrimination that can occur between residents and non-residents of a member state, as the latter group are subject to pre-trial detention more often than residents in similar situations.215 The very real benefits of the ESO advancing the presumption of innocence, due process, detention as a measure of last resort and addressing overcrowding are clear and should be used in practice more readily to guarantee these important principles, and address the current challenges related to pre-trial detention. 210 Klip, A. European Criminal Law, An Integrative Approach 2016 page 448. 211 European Commission, COM (2011) 327 final, p.7. 212 COM (2006) 468 Final 2006/0158 (CNS) Proposal for a Council Framework Decision on the European supervision order in pre-trial procedures between Member States of the European Union page 2. 213 Recital 4 ESO. Also see: Morgenstern (2014), p.216. 214 COM (2006) 468 Final 2006/0158 (CNS) Proposal for a Council Framework Decision on the European supervision order in pre-trial procedures between Member States of the European Union 215 See Klip, A. European Criminal Law, An Integrative Approach 2016 page 448. See also Peers, EU Justice and Home Affairs Law, 2016, page 111 and Commission. 53