Italy highlights problem in EU prisons

This has a knock-on effect for prison overcrowding, and many Italian prisons are running at around 150 percent capacity – a fact highlighted in Fair Trials’ recent study on pre-trial detention in the EU.

The problem was so serious that the European Court of Human Rights (ECtHR) specifically drew attention to pre-trial detention as a source of overcrowding in a recent pilot judgment against Italy, finding that the resulting conditions amounted to inhuman or degrading treatment on a systemic level.

The presence of such a judgment is particularly awkward for a member state of the EU.

Indeed, as Italy itself pointed out in response to a European Commission consultation, repetitive findings of violations relating to detention could undermine the foundations of the mutual trust, which forms on which mutual recognition measures like the European Arrest Warrant are based.

The Senate has now approved a new legislative decree including various urgent measures relating to prisons, including some on pre-trial detention.

Among other things, the new law establishes that pre-trial detention can be ordered only where the person is charged with an offence carrying a potential sentence of five years or over - an increase of one year on the existing rule.

Fair Trials International welcomes this effort to tackle pre-trial detention.

We have long expressed concerns over the use of pre-trial detention across Europe, and are pleased that the Italian legislature is now seeking to tackle the issue.

It is to be hoped that the reform has some impact, but experience shows that sensible legislative safeguards do not always result in less recourse to pre-trial detention.

Indeed, the common theme of our recent meetings with criminal justice experts in Hungary, Spain and Poland has been the impression that prosecutors request detention systematically, judges approve their requests systematically, and alternatives to detention are either not available or not given enough consideration.

In all of these jurisdictions, the legislation appears sound on paper but in practice, excessive recourse is had to pre-trial detention.

Italy’s legislation, likewise, already appears to comply with international standards: under the terms of its Code of Criminal Procedure, pre-trial detention can be ordered only where other measures are considered inadequate, and where there is a real risk that the suspect will commit further offence, tamper with the evidence, or abscond from proceedings.

Yet, the reality is a different picture.

Fair Trials International hopes that the amendments have some effect, but also maintains that the European Union should revisit the case for setting its own minimum standards on pre-trial detention.

EU rules would provide a clearer and more enforceable framework than the European Convention on Human Rights.

For one thing, from a legal point of view, they would be directly applicable at the national level, along with the Charter of Fundamental Rights, giving international standards more purchase.

Equally, the possibility for the European Commission - gladly assisted, one would think, by the many NGOs active in this area - to monitor compliance and, ultimately, take infringement actions before the Court of Justice, would prove a more effective guarantor than the risk of a small fine for a violation in one case, imposed several years later, by the ECtHR.

Indeed, aside the risk of higher fines, the consequences of an adverse judgment from the CJEU, in terms of the operation of cross-border mutual recognition measures, could be potentially serious and the member states would be thus incentivised to keep their houses in order.

ECtHR case-law has for a long time required criminal courts to ensure the defence have sufficient access to the case-file to challenge detention effectively, yet in many places access is withheld for long periods, in accordance with codes of criminal procedure (as in Spain and Hungary).

Accordingly, Fair Trials International and the practitioners we work with, are excited at the possibilities presented by the directive on the right to information in criminal proceedings - the implementation deadline for which is June 2014 - which codifies that obligation as positive EU law, which is expected to have a real impact.

By legislating more broadly in the area of pre-trial detention, the European Commission could extend that impact across the whole area, to the benefit of the presumption of innocence and, at the same time, strengthening the foundations of mutual trust.

Alex Tinsley, is a law reform officer at Fair Trials International, a London-based NGO