Pre-Trial Detention: The Presumption of Innocence and Article 5 of the European Convention on Human Rights Cannot and Do Not Limit its Increasing Use

Abstract

These days the use of pre-trial detention in Europe seems to be ever increasing. This is in spite of the fact that the the presumption of innocence tells authorities to be restrictive in pre-detaining suspects. It also seems contrary to the starting point of the European Court of Human Rights. Basing itself on the presumption of innocence the Court holds that a suspect should await his trial in freedom. For obvious reasons, the presumption of innocence and the European case-law are often invoked to either state that today's pre-trial detention practices are in violation of both presumption and case-law or to say that pre-trial detention practice should take them more into account. In this article however, I argue that the presumption of innocence has little operational value when trying to limit the use of pre-trial detention. Also, the case-law of the ECHR allows pre-trial detention to be used more than only reluctantly and even in a rather punitive way. This poses the question what then could be arguments to put a hold to the increasing use of pre-trial detention. But maybe, this is not the right question to ask. Practice and theory are starting to diverge considerably. Also, practice does not seem to be receptive to any arguments put forward by scholars. In the reality of the risk society we may have to accept that pre-trial detention is no longer an ultimum remedium. It is on the contrary a popular preventive instrument serving the purpose of security, and hence an intensively used one. Perhaps it would be more realistic and useful to start thinking about a new theoretical framework on pre-trial detention.