The evolution of European Union criminal law (1957-2012)

trial detention. 841 The Commission notes that this incidence relates to the fact that courts
perceive a greater risk of flight of non-nationals due to their lack of social ties in the
country where they are being prosecuted for a crime. 842 This assessment increases
significantly the burden upon the individual being prosecuted. In fact, in addition to the
likelihood of remaining in detention whilst awaiting trial, other penalising elements of
facing trial in a foreign country will be felt, such as language/communication
difficulties, distance from family and friends and professional relations. The Framework
Decision addresses this specific concern and holds in its preamble that,
“There is a risk of different treatment between those who are resident in the State of trial
and those who are not: a non-resident risks being remanded in custody pending trial
even where, in similar circumstances, a resident would not.” 843
Furthermore, it refers to a need to accomodate the protection of the general public by
ensuring the supervision of a person subject to criminal proceedings and the right to
liberty and the presumption of innocence. 844
3.3.2 Post trial detention
The application of the principle of mutual recognition to detention is further developed
in 2008 with the Framework Decision on custodial sentences or measures involving
deprivation of liberty. 845 The Framework Decision focuses mostly on the transfer of
841 The European Commission noted in 2006 that an estimated of 10000 EU nationals are
detained in pre trial detention in EU countries other than their countries of residence in a total of
4500 of EU nationals in pre trial detention in countries other than that of their nationality.
Furthermore, the Commission estimated that at least 80% of those could have been applied
alternative non-custodial measures. European Commission Staff Working Document on ESO,
supra note 839. For a more detailed overview of the problem in relation to all types of detention
and foreigners, see A.M. van Kalmthout, F.B.A.M. Hofstee-van der Meulen and F. Dunkel,
Foreigners in European Prisons, vol. I (Nijmegen/The Netherlands: Wolf Legal Publishers,
2007), especially at 70-77. For a critical analysis see also L. Wacquant “Suitable Enemies:
Foreigners and Immigrants in the Prisons of Europe” (1999) 1 Punishment and Society 215 and
M. Tonry, “Symbol, Substance and Severity in Western Legal Systems” (2001) 3 Punishment
and Society 517.
842 See Commission’s Staff Working Document on ESO, supra note 839, 7; and A.M. van
Kalmthout, Foreigners in European Prisons, supra note 841, 41-44.
843 Intent (5) of the Framework Decision 2009/829/JHA, supra note 534.
844 Intent (3) and (4), ibid..
845 Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle
of mutual recognition to judgements in criminal matters imposing custodial sentences or
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