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Abuse of pretrial detention in States Parties to the European Convention on Human Rights

Doc. 13863: compendium of written amendments | Doc. 13863 | 30/09/2015 | Final version

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ADraft Resolution

1The 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.
2The 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:
2.1negative effects of pretrial detention on detainees:
2.1.1risk of job loss or bankruptcy; their families suffer economic hardship in addition to the human consequences of prolonged separation;
2.1.2in 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;
2.1.3threat to the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights (ETS No. 5, “the Convention”) 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;
2.2negative effects of pretrial detention on society as a whole:
2.2.1the 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;
2.2.2the 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;
2.2.3the 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.
3The 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.
4The Assembly notes that the laws of most member States are generally in line with Convention standards, but their application by the prosecutorial authorities and the courts is frequently not.
5As the different practices in this respect, even among member States of the European Union, threaten the effectiveness of international legal cooperation, the European Union has commissioned extensive comparative research to identify problems and possible solutions.
6The 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 other evidence, are generally interpreted too widely or invoked pro forma in order to justify pretrial detention for other, abusive purposes.
7The following abusive grounds for pretrial detention have been observed in a number of States Parties to the European Convention on Human Rights, namely to:
7.1put 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);

In the draft resolution, paragraph 7.1, after the words "Russian Federation", insert the following words: ", and certain cases of UNM leaders in Georgia, such as former prime minister Merabishvili".

Explanatory note

On 17 December 2013, former Prime Minister Vano Merabishvili who was placed in pre-trial detention in May that year stated that he was illegally taken out from his detention cell and personally threatened by then Prosecutor-General Otar Partskhaladze to testify against President Mikheil Saakashvili.

7.2discredit or otherwise neutralise political competitors (for example certain cases of United National Movement (UNM) leaders in Georgia);

In the draft resolution, paragraph 7.2, delete the following words: "(for example certain cases of United National Movement (UNM) leaders in Georgia)".

Explanatory note

After the election in 2012, the number of pre-trial detentions considerably decreased. Pre-trial detention is used only as an exception and utmost measure. Investigations involving former governmental officials started, inter alia, considering the recommendations of different international intergovernmental and nongovernmental organisations, including institutions of the Council of Europe.

In the draft resolution, paragraph 7.2, replace the words "certain cases" with the following words: "the majority of the cases".

7.3promote 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);
7.4put 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;
7.5intimidate civil society and silence critical voices (for example the case in Turkey of a 16-year-old 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” and other cases in the Russian Federation).

In the draft resolution, paragraph 7.5, delete the following words: "the case in Turkey of a 16-year-old placed in pretrial detention for allegedly insulting the President via social media,"

Explanatory note

"Insulting the President" is a crime under Turkish law. The 16-year-old student in question was arrested accordingly and released within 2 days. Courts decide on a case-by-case basis and by evaluating all the factors. Therefore, independent judicial procedures cannot be considered as a tool to "silence critical voices".

8The over-representation of foreign nationals among pretrial detainees gives rise to concerns that the legal grounds for detention are applied in a discriminatory way.
9Some 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.

In the draft resolution, at the end of paragraph 9, add the following sentence: "In Georgia, pre-trial detention has also been notably reduced in the last two years due to recent judicial reforms."

Explanatory note

According to official statistics, since the 2012 elections, the number of prisoners has decreased by 60%. In 2014, pre-trial detention was used in 32.3% of cases and alternative preliminary measures in 67.7% of cases.

10Other 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.

In the draft resolution, paragraph 10, delete the word ", Turkey".

Explanatory note

This paragraph acknowledges Turkey's success in reducing the number of pretrial detainees and improving the treatment of detainees. Figures relating to pretrial detention are inaccurate and must be updated. Mentioning Turkey in this context requires strong and concrete evidence beyond questionable newspaper articles and statements of the parties to a few trials.

11The root causes of the abusive use of pretrial detention include:
11.1a political and legal culture which rewards those who are perceived as tough on crime, at the expense of the presumption of innocence;
11.2a structural imbalance between the prosecution and the defence in terms of power and available resources (access to relevant information, time, funding);
11.3the fact that decisions on pretrial detention are frequently taken by more junior judges, who tend to be overworked and reticent to assert their authority vis-à-vis 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;
11.4the 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);

In the draft resolution, paragraph 11.4, delete the word "Georgia,".

Explanatory note

The rapporteur does not mention any fact or evidence to support this statement. According to the piece of legislation adopted in 2015, a judge is obliged by his/her own initiative to review every two months, the issue of legitimacy of detention of a person being held in pre-trial detention.

In the draft resolution, paragraph 11.4, delete the words "and Turkey."

Explanatory note

It is alleged that in Turkey, "forum shopping" by the prosecution is possible. No authority has the right to give orders or instructions to the courts in Turkey. The decisions of courts are also open to judicial review. The reference to Turkey without facts impairs the accuracy of the report.

11.5the possibility for the prosecution to circumvent statutory time limits imposed on pretrial detention by modifying or staggering indictments (for example in Georgia).

In the draft resolution, paragraph 11.5, delete the words "(for example in Georgia)".

Explanatory note

Decisions on pre-trial detention are made only by the Court and not the Prosecutor's Office. The independence of the judiciary has significantly increased, where the use of pre-trial detentions has shrunk since 2012. On 16 September 2015, the Constitutional Court limited pre-trial detention to a maximum period of 9 months.

In the draft resolution, paragraph 11.5, replace the words "in Georgia", with the following words: "in cases of UNM leaders Mr Ugulava and Mr Akhalaia in Georgia. In the case of Mr Ugulava, the Constitutional Court of Georgia ruled his 15 month pre-trial detention term was anti-constitutional and illegal".

Explanatory note

Mr Ugulava, UMN leader, was re-arrested 24 hours after his release after one of the cases against him was accelerated, despite the constitutional court ruling that his extended pre-trial detention was illegal. The chairman of the European Parliament Foreign Affairs Committee called this a "violation of the EU-Georgia Association Agreement".

12The Assembly therefore calls on:
12.1all States Parties to the European Convention on Human Rights to implement measures aimed at reducing pretrial detention, including by:
12.1.1raising 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 the detainees and their families and on society as a whole;
12.1.2ensuring 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;
12.1.3ensuring 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, and also for proceedings related to pretrial detention;
12.1.4taking 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;
12.2the Russian Federation, Turkey and Georgia, in particular, to:

In the draft resolution, paragraph 12.2, delete the word ", Turkey".

Explanatory note

Claims against Turkey in the report are built on unsubstantiated allegations, rumours, prejudiced comments and manipulated information. In order to maintain the credibility, objectivity as well as the quality of the report and the draft resolution, we recommand not mentioning Turkey as a State abusing pretrial detention.

12.2.1take appropriate measures to prevent “forum shopping” by prosecutors;
12.2.2refrain from using pretrial detention for purposes other than the administration of justice and to release all detainees currently held for any abusive purposes.

In the draft resolution, replace paragraph 12.2.2 with the following paragraph:

"use pre-trial detention only in compliance with Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and with the standards established by the European Court of Human Rights."

Explanatory note

PACE has no competence to interfere in the jurisdiction of domestic courts and call for the release of detainees in this way. Even the European Court only makes such appeals in exceptional cases. If the current paragraph formulation remains, PACE would violate the principle of independence of the judiciary.

In the draft resolution, at the end of paragraph 12.2.2, insert the following words: "or under any abusive procedure (set out in paragraphs 11.4-11.5)".

13The Assembly commends the European Union for the initiatives taken in recent years aimed at reducing pretrial detention in European Union 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.

BDraft Recommendation

1The Parliamentary Assembly refers to its Resolution … (2015) on the abuse of pretrial detention in States Parties to the European Convention on Human Rights and to Committee of Ministers Recommendation Rec(2006)13 on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse.
2Drawing the attention of the Committee of Ministers to the continuing shortcomings, including over-representation of foreign nationals in pretrial detention, which have been documented in recent research carried out on behalf of the European Union, and to the examples of abuses of pretrial detention in a number of States Parties to the European Convention on Human Rights (ETS No. 5) referred to in Assembly Resolution … (2015), the Assembly calls on the Committee of Ministers to:
2.1consider ways and means of reducing recourse to pretrial detention in general and its abuse for specific purposes such as the pursuit of political or corruption-related objectives, in particular in light of recent developments;
2.2encourage relevant bodies of the Council of Europe to intensify their co-operation with their European Union counterparts in order to ensure that any action to tackle pretrial detention issues is taken in a co-ordinated way, on the basis of the standards laid down by the European Convention on Human Rights as interpreted by the European Court of Human Rights.