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Improving Judicial Assessment of Flight Risk

Authors:
    Boyana Ivanova co coordinator of the project, Adela Kachaunova attorney at law, BHC Co chair and Legal Defense Programme Director, Radoslav Stoyanov BHC Co chair, Krasimir Kanev Monitoring and Research Program director

In 2022, Bulgarian Helsinki Committee became a partner in the Flightrisk project, which is coordinated by Fair Trials and funded by the European Union. The project involves a study of legislation and practice in pre trial detention in several European countries (Austria, Belgium, Bulgaria, Ireland and Poland). Bulgarian Helsinki Committee conducted the research in Bulgaria.

Flight risk is a common justification for pre-trial detention, but the assessment process is often flawed.  Instead of focusing on individual circumstances, decisions are often abstract, general and stereotypical. One of the issues is that the jurisprudence raises is the lack of clarity in the criteria on the basis of which the courts assume that there is a danger of absconding or committing an offence. Another serious problem is that there is a discrepancy between Bulgarian legislation on pre trial detention and the standards set by the European Court of Human Rights. This discrepancy calls for legislative changes.

The key objectives of the analysis are:

- to draw attention to the binding standards of the European Convention on Human Rights when decisions are made relating to the risk of absconding as a ground for pre-trial detention in criminal proceedings; 

- to identify the causes of the excessive use of custody leading to overcrowding in prisons and remand prisons.

Based on our research, the BHC made several recommendations for legislative changes, including:

  • Establish a presumption of release for defendants awaiting trial;

  • Eliminate rebuttable presumptions of flight risk based on the severity of the charge; 

  • Appealing of the detention by the prosecutor for up to 72 hours aiming at bringing the accused before the court (Art. 17(2); Art. 64(2) CPC).

  • Introduction of lighter measures than detention; 

  • More frequent reviews of pre-trial detention decisions;

  • Ensure that lawyers have access to all case materials well in advance of the hearing;

  • Ensuring effective access to a lawyer during police detention

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The project is funded under the call JUST-2021-JCOO of the European Commission's Directorate-General for Justice and Consumers. The views and opinions expressed are those of the authors alone and do not necessarily reflect those of the European Union or the European Commission. They are not the responsibility of the European Union or the European Commission.