Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers Conclusion and FRA Opinions The three Framework Decisions are rooted in international instruments adopted by the Council of Europe and the United Nations. More effective tools were deemed necessary for the EU’s area of justice. With an increase in the number of persons detained or subjected to alternatives to detention in EU Member States other than ‘their own’ comes a greater need for the application of these instruments. If well-implemented and carefully applied to ensure compliance with fundamental rights, they have the potential to – for instance – boost social rehabilitation, encourage greater use of alternatives to detention, and even improve detention conditions (by reducing overpopulation). To date, the use of the instruments has been relatively limited. The three Framework Decisions were also implemented rather late by EU Member States, often several years after the respective implementation deadlines. Since December 2014, the European Commission can launch infringement proceedings with respect to these instruments. Obstacles that delay the implementation and limit the application of the Framework Decision on the ESO are particularly problematic – especially because the instrument concerns suspected and accused persons, not persons who have been found guilty by a court of law. Pre-trial detention risks being more frequently used for suspects and accused persons from other EU Member States, given concerns that they may leave the country. This may have discriminatory effects if risk assessments are simply based on nationality. This, in turn, may influence the presumption of innocence by having persons from other Member States in detention in situations in which persons from the Member State in question would benefit from alternatives to detention. Therefore, it is vital to not only collect data and information on experiences with applying the instrument, but also on failures to apply it. This would make it possible to identify and address the reasons underlying decisions not to apply the instrument, such as the absence of appropriate alternatives to detention. FRA Opinion 1 For proper implementation of the Framework Decision on the European Supervision Order, the EU and its Member States need to assess the instrument’s non-application. This would permit the identification of obstacles to the full use of the instrument. The application of the instrument to non-nationals also requires close scrutiny to identify potential discriminatory use. Applying the European Supervision Order equitably across EU Member States would contribute to an EU system of justice that does not discriminate between persons from different EU Member States, better respects the presumption of innocence, and limits the use of pre-trial detention. 34 For implementation of the Framework Decisions to work well, there is a need to collect information and data on how the three instruments are being used. The information and data, in turn, are essential for assessing the performance of the instruments – including, importantly, with respect to fundamental rights. Some Member States have opted for a strong de-centralised approach by designating many courts or prosecutors’ offices as ‘central authorities’ (one or more entities in each EU Member State charged with interaction across borders under the instruments). These entities are important for the smooth functioning of the instruments, but also serve as potential sources for pooling experiences and collecting much-needed data and information in a more uniform manner across a particular country. The manner in which central authorities operate and how many there are affect the potential for gathering experiences and could influence data collection. FRA Opinion 2 For the practical implementation of the three Framework Decisions to work well, information on how the three instruments are being used needs to be gathered and data collection needs to be improved, standardised, and consistently used for feedback and improvements. All EU Member States should, via their central authorities, regularly collect data and information on the use of the instruments and use the data and information to map, analyse, and improve their implementation thereof. Central authorities in EU Member States should also work together to improve the consistency of such data and information collection across the EU.