The Purposes of Pre-Trial Detention and the Quest for Alternatives

Abstract

In this article, we take issue with the echr standards on pre-trial detention. These standards are considered panacea for the reported overuse of pre-trial detention in Europe. They focus on the legitimate purposes of detention as safeguards to ensure the principle of ultima ratio. Yet these purposes are heterogeneous as pre-trial detention protects the pending proceedings but also averts risks pertinent to criminal policy. In our analysis we discuss the shortcomings of the echr standards to fully protect from abusive detention. Moreover, we reveal internal inconsistencies with the presumption of innocence. One major example is the use of pre-trial detention to prevent re-offending, which blurs the boundaries between custody on remand and preventive detention. Additionally, we delve deeper into the obligation to use milder measures as part of the echr standards, which remains superficial and vague. Conclusively, we encourage the reflection and re-examination of the echr standards for pre-trial detention, instead of focusing merely on their better enforcement.