Abusive use or the lawfulness of pre-trial detention
110. In 2015, the Parliamentary Assembly of the Council of Europe (PACE), which includes representatives of 47 OSCE participating States, noted the multiple negative
effects of pre-trial detention, including the exposure to violence by other inmates
and officials, as well as difficult detention conditions, which are often worse for
pre-trial detainees.247 It also found that the laws of most member States regulating
the use of pre-trial detention are generally in line with European Convention on
Human Rights, but their application by the prosecutorial authorities and the courts
is frequently not. Among the abusive grounds for pre-trial detention that have been
observed in the Council of Europe region were to put pressure on detainees in
order to coerce them into confessing to a crime or otherwise co-operating with
the prosecution, including by testifying against a third person, or to intimidate civil
society and silence critical voices.248
111. Among the root causes of the abusive use of pre-trial detention identified by PACE
are: a political and legal culture that rewards those who are perceived as tough on
crime, at the expense of the presumption of innocence; a structural imbalance between the prosecution and the defence in terms of power and available resources
(access to relevant information, time, funding, etc.); in a number of instances, a
widespread practice of the rubber-stamping by judges of requests by prosecutors,
without taking into account the circumstances of individual cases; the possibility of
“forum shopping” by the prosecution, which may be tempted to develop different
strategies to ensure that requests for pre-trial detention in certain cases are decided by a judge who, for various reasons, is expected to be “accommodating”.249
112. An additional reason for the abuse of pre-trial detention in many OSCE participating States is that legislation provides for alternatives to remand in custody but, in
reality, no social or administrative structures exist that can accommodate or deal
with such a large number of persons under trial. This sometimes leaves the courts
with pre-trial detention as the only realistic option for addressing pre-trial risks.250
247 PACE Resolution 2077 (2015), Abuse of pre-trial detention in States Parties to the European
Convention on Human Rights.
248 Ibid, para. 7; see also the Committee of Minister’s reply from 18 April 2016, Doc. 14020; for more
information and facts and figures on pre-trial detention in the Council of Europe member States,
see also the initial Report of the Committee on Legal Affairs and Human Rights, Rapporteur Mr.
Pedro Agramunt, Doc. 13863 (September 2015)
249 PACE Resolution 2077 (2015), Abuse of pre-trial detention in States Parties to the European
Convention on Human Rights, para. 11, referring to Georgia, Russia and Turkey.
250 Council of Europe, European Committee on Crime Problems, White paper on Prison overcrowding (2016), para. 64.
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