Assessing Flight Risk in pre-trial detention decision-making

Assessing Flight Risk in pre-trial detention decision-making is a European comparative study.

The report presented at the end of June is the result of a two-year project led by Fair Trials and funded by the European Commission. Five members states (Austria, Belgium, Bulgaria, Ireland and Poland) contributed with their national analysis when flight risk is used a ground for pre-trial detention in their countries. 

The study comprises a comparative analysis of the national reports of the five Member States in the context of a review of both the European Court of Human Rights (ECtHR) case law, and the available data and scientific research regarding the risk of flight.

The overreliance on using flight-risk as a ground for pre-trial detention is undermining the EU core values of the right to liberty, the presumption of innocence, access to a lawyer and process and detention as a measure of last resort. This contributes to the EU-wide (and globally) overcrowding of prisons, affecting directly the health and dignity of those within the prison walls.

Below you can find the findings and some recommendations based on them. 

The Research Findings

The findings of the research can be divided into three areas: 

1. Discriminatory impact on pre-trial detention

2. Importance of procedural rights in the pre-trial detention assessment phase

3. Reluctance by decision makers to use alternative measures

There was an overrepresentation of specific groups in pre-trial detention. The requirement of a fixed address and community links was so profoundly embedded in the assessment of Flight Risk, that for those that were homeless, it becomes impossible to satisfy the requirements for alternative measures, and as result they were almost automatically found to be a Flight Risk. 

Equally, individuals in a more precarious socio-economic situation were more readily subjected to pre-trial detention. Common to all the Member States participating in the research, was the fact that foreign nationals, just for having ties abroad and therefore being unable to demonstrate community links in the prosecuting country were also more readily deemed to be a Flight Risk.

Throughout the study, it was clear that procedural rights are very important in the pre-trial detention process. The research showed that when people had good access to defense lawyers from the moment they were arrested and during pre-trial hearings, alternative measures were more likely to be used instead of detention. While having a lawyer early on was frequently mentioned as a key right, it is also of considerable importance the independence of the judiciary and the availability of effective remedies.

The overreliance on pre-trial detention in favour of alternative measures was also a feature of the research. Except for Ireland, which more readily favoured bail and alternative measures over pre-trial detention, the other four participating Member States demonstrated an
overwhelming reluctance to apply alternative measures. The research found that this lack of enthusiasm for alternative measures was usually based on a lack of trust in their effectiveness, and a lack of awareness in the measures that exist on a regional level, for example the European Supervision Order (ESO)*.

Recommendations
This study considers recommendations to address these findings directed at EU legislators, National Legislators and Practitioners, including judges, defence lawyers and prosecutors.
• There is a clear need to harmonise the assessment criteria and ensure procedural rights guarantees.
• The adoption, implementation and application by Member States of alternatives to detention to address pre-trial detention.
• Awareness raising among stakeholders of procedural rights, the broad range of alternative measures available, and how to apply them in practice through handbooks and training seminars.

Notes:
* The ESO provides for cross-border supervision by authorities of individuals accused of committing a crime as an alternative to pre-trial detention, and directly seeks to address the disproportionate representation of foreign nationals in pre-trial detention.
A lack of clear statistical data was identified as an issue both in respect of Flight Risk as a ground for pre-trial detention on a national level (apart from Spain and Germany), as well as on a regional level