Rules on pretrial detention exist across the EU, but overcrowding and practice remain deeply unequal

The Commission’s first report on European detention standards finds strong legal safeguards in all 27 states, but a persistent gap between the law and its application. Alternatives to pretrial detention are underused, personal space in a single-occupancy cell can range from 2 to 12 square metres, and infrastructure and staff shortages limit rights in practice.

The legislation of the 27 Member States generally provides the safeguards required for pretrial detention and imprisonment, but overcrowding, the limited use of alternatives to incarceration, ageing infrastructure and uneven resources create major differences in how these rights are applied, according to the European Commission’s first report on the implementation of the EU Recommendation in this area.

The document identifies a recurring gap between existing rules and reality in detention centres. Courts have measures at their disposal such as judicial supervision, travel restrictions, reporting obligations, fixed residence or electronic monitoring, but the Commission finds that deprivation of liberty continues to be used frequently even where such alternatives are available.

In brief
All Member States provide for judicial supervision of pretrial detention and alternatives to detention, but the actual use of these instruments varies considerably.

Electronic monitoring is available in most states, but its application is limited in some jurisdictions by infrastructure, staffing or conditions such as having a stable residence.

Standards on personal space differ sharply. In single-occupancy cells, the figures reported in Member States range from 2 to 12 square metres, and some systems allow, in certain circumstances, thresholds below the recommended European standards.

Overcrowding continues to create situations in which detainees remain below international space thresholds and, in some facilities, sleep on mattresses for extended periods.

The Commission will prepare separate fact sheets for each Member State together with the Council of Europe, as differences in data quality prevent the current report from making a fully consistent country-by-country comparison.

The European Recommendation establishes the principle that pretrial detention should be a measure of last resort, used only when necessary and proportionate and when a less intrusive measure cannot manage the risks in a case.

The report finds that this principle appears, explicitly or through case law, in all national systems. No Member State automatically requires pretrial detention for an entire category of offences or suspects, and the decision must be taken by a judicial authority.

The problem arises in the application of alternatives. All states provide at least some instruments such as periodic reporting to authorities, contact bans, territorial restrictions, the surrender of travel documents, financial guarantees, an imposed residence or electronic monitoring.

However, the Commission finds that courts continue to resort frequently to deprivation of liberty. Lack of confidence in alternatives, technical limitations and insufficient resources reduce their use, while the European Supervision Order, an instrument allowing a suspect to be supervised in another Member State, is used very little.

This problem particularly affects foreign suspects. The report shows that they may remain in pretrial detention even when an equivalent supervision measure could be arranged in their home state.

The differences become even more visible in the material conditions of detention. The Commission’s Recommendation indicates at least 6 square metres in a single-occupancy cell and 4 square metres per person in a shared cell. Below the absolute threshold of 3 square metres, there is a strong presumption of a violation of Article 3 of the European Convention on Human Rights.

In practice, the report finds that national standards on personal space vary widely. For single-occupancy cells, the reported standards range from 2 to 12 square metres, and some jurisdictions allow very low figures in situations such as temporary overcrowding.

The Commission describes overcrowding as one of the problems that continues to undermine compliance with standards. In some centres, detainees end up sleeping on mattresses for extended periods, while the lack of space also affects the possibility of separating people in pretrial detention from those already convicted.

Sanitary conditions are also uneven. Most states report access to toilets and sinks, but in some systems facilities are incomplete in older buildings, and toilets in shared cells are not always separated to ensure privacy. Access to hot water and the frequency of showers vary, while infestations continue to be reported in some states.

All states guarantee at least one hour a day of outdoor activity, but the total time spent outside the cell varies greatly. Access to work, education and reintegration activities is also uneven, particularly for people in pretrial detention.

The report also draws attention to the effects on European judicial cooperation. Detention conditions may lead a court to postpone or refuse the execution of a European arrest warrant if there is a real risk of inhuman or degrading treatment.

The Commission cites nearly 586 cases recorded since 2016 in which the execution of European arrest warrants was refused or delayed for reasons related to the risk of violations of fundamental rights and material detention conditions.

The document does not rank states from the best to the weakest system. The Commission warns that national databases differ too greatly for such a comparison. Some administrations have centralised systems tracking occupancy, incidents, isolation, complaints and participation in programmes, while others use decentralised or even manual records.

For this reason, the next step will be to build country fact sheets together with the Council of Europe. These should provide a more precise picture of the situation in each state and be usable, including when courts assess detention conditions in a case concerning a European arrest warrant.

The report does not create new legal obligations. It assesses the implementation of the 2022 Recommendation and concludes that the main problem is no longer the general absence of rules, but the difference between the safeguards provided for in law and what actually happens in practice.

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