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Resolution 2077 (2015)
Abuse of pretrial detention in States Parties to the European Convention on Human Rights
1. The Parliamentary Assembly stresses
the importance of the presumption of innocence in criminal proceedings.
Pretrial detention (detention on remand) should be used only exceptionally,
as a last resort, when alternative measures of restraint are insufficient
to safeguard the integrity of the proceedings.
2. The Assembly notes the multiple negative effects of pretrial
detention, both on the detainee and on society as a whole, most
of which also occur when the detainee is subsequently acquitted:
2.1. negative effects of pretrial
detention on detainees:
2.1.1. risk of job loss or bankruptcy,
and their families suffer economic hardship in addition to the human
consequences of prolonged separation;
2.1.2. in many instances, exposure to violence by other inmates
and officials, the nefarious influence of hardened criminals, contagious
diseases and difficult detention conditions, which are often worse
for pretrial detainees than for convicted criminals serving their
prison term;
2.1.3. threat to the right to a fair trial guaranteed by Article
6 of the European Convention on Human Rights (ETS No. 5) due to
the psycho-social consequences of pretrial detention, which is often
accompanied by severe isolation and undermines the detainees’ ability
to defend themselves effectively;
2.2. negative effects of pretrial detention on society as a
whole:
2.2.1. the high budgetary cost of detention in comparison
with other measures of restraint, such as bail, house arrest, curfews
or restraining orders, with or without electronic supervision. The
resources spent on pretrial detention could be put to better use
for crime prevention, increasing the rate of elucidation of crimes
and the re-socialisation of offenders;
2.2.2. the loss of the economic contribution of pretrial detainees,
the de-socialising effect of detention on the detainees’ family
and the negative effects of detention on the spread of infectious
diseases;
2.2.3. the fact that pretrial detention without effective controls
creates opportunities for corruption and generally undermines the
public’s trust in the proper functioning of the criminal justice
system.
3. The European Convention on Human Rights, as interpreted by
the European Court of Human Rights, has established clear limits
for the use of pretrial detention and rules applying to the treatment
of pretrial detainees.
4. The Assembly notes that the laws of most member States are
generally in line with European Convention on Human Rights standards,
but their application by the prosecutorial authorities and the courts
is frequently not.
5. As the different practices in this respect, even among member
States of the European Union, threaten the effectiveness of international
legal co-operation, the European Union has commissioned extensive comparative
research to identify problems and possible solutions.
6. The high number of pretrial detainees (in absolute terms and
in relation to the total prison population), almost 425 000 (25%
of all prisoners) in Europe (2013), is an indication that the permissible
grounds for pretrial detention, notably to prevent a suspect from
absconding or interfering with witnesses and evidence, are generally
interpreted too widely or invoked pro forma in order to justify
pretrial detention for other, abusive purposes.
7. The following abusive grounds for pretrial detention have
been observed in a number of States Parties to the European Convention
on Human Rights, namely:
7.1. 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 (for example the case of Sergey
Magnitsky, in the Russian Federation, and certain cases of opposition
leaders in Georgia, such as former Prime Minister Merabishvili);
7.2. to discredit or otherwise neutralise political competitors
(for example, certain cases of United National Movement (UNM) leaders
in Georgia);
7.3. to promote other, including foreign policy-related, political
objectives (for example, the case of Ms Nadiia Savchenko, the Ukrainian
pilot and member of the Ukrainian delegation to the Parliamentary Assembly,
in the Russian Federation);
7.4. to put pressure on detainees in order to compel them to
sell their businesses (for example, the Gusinsky case in the Russian
Federation) or in order to extort bribes;
7.5. to intimidate civil society and silence critical voices
(for example, the case in Turkey of a 16-year-old boy placed in
pretrial detention for allegedly insulting the President via social
media, the cases of prominent human rights defenders and lawyers
in Azerbaijan, and the lengthy pretrial detention of peaceful protesters
in the Bolotnaya Square case and other cases in the Russian Federation).
8. The over-representation of foreign nationals among pretrial
detainees gives rise to concerns that the legal grounds for detention
are applied in a discriminatory way.
9. Some countries, such as Poland, have made considerable progress
in reducing pretrial detention, by implementing substantial reforms
to execute relevant judgments of the European Court of Human Rights.
10. Other countries, such as the Russian Federation, Turkey and
Georgia, have adopted legal reforms accompanied by practical measures
which have led to a clear reduction in the number of pretrial detainees
and considerable improvements in the treatment of the majority of
detainees, even though abuses of pretrial detention, as mentioned
above, continue to occur.
11. The root causes of the abusive use of pretrial detention include:
11.1. a political and legal culture
which rewards those who are perceived as tough on crime, at the expense
of the presumption of innocence;
11.2. a structural imbalance between the prosecution and the
defence in terms of power and available resources (access to relevant
information, time, funding);
11.3. the fact that decisions on pretrial detention are frequently
taken by junior judges, who tend to be overworked and reticent to
assert their authority with regard to the prosecution. The result
is, in a number of instances, a widespread practice of rubber-stamping
of the prosecution’s requests by judges, without taking into account
the circumstances of the individual case;
11.4. the possibility of “forum shopping” by the prosecution,
which may be tempted to develop different strategies to ensure that
requests for pretrial detention in certain cases are decided by
a judge who, for various reasons, is expected to be “accommodating”
(for example in Georgia, the Russian Federation and Turkey);
11.5. the possibility for the prosecution to circumvent statutory
time limits imposed on pretrial detention by modifying or staggering
indictments (for example, in the cases of Mr Ugulava and Mr Akhalaia,
before the judgment of the Constitutional Court of Georgia in September
2015).
12. The Assembly therefore calls on all States Parties to the
European Convention on Human Rights to:
12.1. implement measures aimed at reducing pretrial detention,
including the following:
12.1.1. raising awareness among
judges and prosecutors of the legal limits placed on pretrial detention
by national law and the European Convention on Human Rights and
of the negative consequences of pretrial detention on detainees,
their families and on society as a whole;
12.1.2. ensuring that decisions on pretrial detention are taken
by more senior judges or by collegiate courts and that judges do
not suffer negative consequences for refusing pretrial detention
in accordance with the law;
12.1.3. ensuring greater equality of arms between the prosecution
and the defence, including by allowing defence lawyers unfettered
access to detainees, by granting them access to the investigation
file ahead of the decision imposing or prolonging pretrial detention,
and by providing sufficient funding for legal aid, including for
proceedings related to pretrial detention;
12.1.4. taking appropriate action to redress any discriminatory
application of the rules governing pretrial detention with regard
to foreign nationals, in particular by clarifying that being a foreigner does
not per se constitute an increased risk of absconding;
12.2. take appropriate measures to prevent “forum shopping”
by prosecutors;
12.3. refrain from using pretrial detention for purposes other
than the administration of justice and to release all detainees
currently held for any abusive purposes or under any abusive procedure
(set out in paragraphs 11.4 and 11.5).
13. The Assembly commends the European Union for the initiatives
taken in recent years aimed at reducing pretrial detention in its
member States and invites the competent bodies of the European Union
to continue basing their work on the standards set by the European
Convention on Human Rights, as interpreted by the European Court
of Human Rights.