Pretrial detention

Date01 March 2017
Published date01 March 2017
DOI10.1177/2032284417699291
Subject MatterArticles
Article
Pretrial detention: Assessing
European Union Competence
under Article 82(2) TFEU
Thea Coventry
Leiden University, The Netherlands
Abstract
Intuitively setting European Union (EU)-wide common standards on pretrial detention appears
advisable: It strengthens fair trial standards for persons accused of criminal offences and aids
cooperation among the judiciary of Member States. However, at second glance, the European
Parliament and Council’s competence to act appears somewhat shaky. This article examines
whether the EU has competence to legislate on pretrial detention under Article 82(2) of the
Treaty for the Functioning of the EU.
Keywords
pretrial detention, fair trial rights, mutual trust, mutual recognition, criminal procedure
In 2009, the European Parliament proposed adopting a directive setting common minimum rules
for pretrial detention in the European Union (EU) Member States.
1
The legal basis for the proposed
directive is Article 82(2) of the Treaty for the Functioning of the European Union (TFEU), which
enables the European Parliament and Council to establish minimum rules to facilitate mutual
recognition of judgements in criminal matters in areas of shared competence.
2
Over the past few
years, the European Parliament and Council have adopted a range of directives setting common
minimum standards on certain rights for individuals in criminal procedures as part of the Stock-
holm Programme, which outlines the Union’s priorities in the area of justice, freedom and security
Corresponding author:
Thea Coventry, Leiden Law School, PO Box 9520 2300 RA Leiden, The Netherlands.
E-mail: t.a.c.coventry@law.leidenuniv.nl
1. European Parliament, Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights
of suspected or accused persons in criminal proceedings [2009] OJ C 295/91.
2. Consolidated version of the Treaty on the Functioning of the European Union [2007] OJ C 115/01 (‘TFEU’), Articles 4
and 82(2).
New Journal of European Criminal Law
2017, Vol. 8(1) 43–63
ªThe Author(s) 2017
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DOI: 10.1177/2032284417699291
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for the years 2010–2014.
3
Similar to these directives, the Commission and Parliament claim
common standards on pretrial detention are necessary to protect the fair trial rights of accused
persons in Member States and to strengthen the mutual trust between European judiciary upon
which the mutual recognition of judgements is based.
4
These two criteria must be satisfied to give
the EU institutions competence to enact further standards. In addition, the principle of subsidiarity
restricts action by the EU in areas of shared competence to where the proposed objectives cannot
be sufficiently achieved by Member States acting alone.
5
This is generally understood as EU-level
action providing a clear benefit, by reason of its scale or effects, over individual Member State
action. Thus, for pretrial detention, ar guably, the proposed common standards would need to
provide a benefit above the existing Member State laws based on the European Convention of
Human Rights standards.
Definition of pretrial detention
No coherent or comprehensively agreed definition of pretrial detention, also called preventative or
remand detention, exists. While the literal meaning of ‘pretrial’ is ‘prisoners who are untried’,
6
the
term is also used more expansively to include detention during different stages of the trial and
appeal processes.
7
The use of different definitions by European institutions and Member States
makes it extremely difficult to identify whether Member States’ use of pretrial detention is
reasonable or excessive. Further, the overlapping definitions mean that v arying standards and
consequent right protections could apply to differing groups of suspects or prisoners in each forum.
The reach of the proposed directive, and the corresponding obligations of Member States, also
expands or contracts depending on the definition used: If a narrower definition is used, the EU
institutions’ competence to legislate and enforce compliance of resultant obligations extends only
to the resolution of the first trial; if a broader definition is used, the power extends to the end of the
appeal phase, reaching far deeper into the States’ criminal justice systems.
3. See, European Parliament, Resolution of 25 November 2009 on the Communication from the Commission to the Eur-
opean Parliament and the Council – An area of freedom, security and justice serving the citizen – Stockholm pro-
gramme, P7_[2009]0090, 25 November 2009. The three adopted directives are Directive 2010/64/EU on the right to
interpretation and translation in criminal proceedings [2010] OJ L 280/1; Directive 2012/13/EU on the right to infor-
mation in criminal proceedings [2012] OJ L 142/1; and Directive 2012/3/48/EU on the right of access to a lawyer in
criminal proceeding and in European arrest warrant proceedings and on the right to have a third party informed upon
deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty OJ L
294/1 [2013].
4. European Commission, Strengthening Mutual Trust in the European Judicial Area – A Green Paper on the Application
of EU Criminal Justice Legislation in the Field of Detention (Green Paper on Detention), COM[2011] 327, final,
Brussels; European Parliament, Report on the mid-term review of the Stockholm Programme (2013/2014(INI)), 4 March
2014, at para. 46; European Parliament, Written Declaration on infringement of fundamental rights of detainees in the
European Union, from MEPs, 06/2011, 14 February 2011.
5. Consolidated Version of the Treaty on European Union [2008] OJ C 115/13 (‘TEU’), Article 5(3); Protocol (No 2) on
the Application of the Principles of Subsidiarity and Proportionality, OJ C 83/206 30 March 2010.
6. A.M. van Kalmthout et al., An introductory summary of the study: ‘‘An analysis of minimum standards in pre-trial
detention and the grounds for regular review in the Member States of the EU’’, Research Group Pre-Trial Detention,
Tilburg/Greifswald, 2009, JLS/D3/2007/01 (‘Pre-trial Detention’), p. 15.
7. See, for example, European Commission, Green Paper on Detention, 2014; C. Morgenstern, ‘Pre-Trial/Remand
Detention in Europe: Facts and Figures and the Need for Common Minimum Standards’, ERA Forum 9(4) (2009),
pp. 527–542 and 531.
44 New Journal of European Criminal Law 8(1)

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