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Green Paper on mutual recognition of non-custodial pre-trial supervision measures
By presenting this Green Paper the Commission is initiating a debate on a new legislative instrument which would enable the mutual recognition of judicial decisions relating to non-custodial pre-trial supervision measures. The aim is to comply with one of the general principles of law, namely that custody pending trial should be regarded as an exceptional measure and the widest possible use made of non-custodial supervision measures.
Green Paper on mutual recognition of non-custodial pre-trial supervision measures [COM (2004) 562 final - Not published in the Official Journal].
This Green Paper is designed to serve as a basis for preparation of a new legislative instrument on mutual recognition of judicial decisions relating to non-custodial pre-trial supervision measures. A Commission staff working paper associated with the Green Paper contains a detailed analysis of the relevant legal framework and the Commission's thinking on how such an instrument could be drawn up.
Its main objective is to extend the consultation process to a wider public, including legal practitioners, relevant NGOs, and academic circles. Some of the items dealt with in this Green Paper have already been covered in an earlier Green Paper and in the proposal for a Council Framework Decision on certain procedural rights.
Why the Commission is presenting a Green Paper
The excessive use of pre-trial detention is one of the main causes of prison overpopulation. Owing to the risk of flight, non-resident suspects are often remanded in custody, while residents benefit from alternative measures.
The general principles of law dictate that custody pending trial should be regarded as an exceptional measure and preference be given to non-custodial supervision measures. However, such non-custodial measures cannot at present be transposed across borders as States do not recognise foreign judicial decisions in this area.
The introduction of a legal instrument enabling the Member States of the European Union to mutually recognise non-custodial pre-trial supervision measures would:
- help reduce the number of non-resident pre-trial detainees in the European Union;
- reinforce the right to liberty and the presumption of innocence in the European Union;
- decrease the risk of unequal treatment of non-resident suspects.
There is a clear mandate to take action on this issue under the programme of measures to implement the principle of mutual recognition of decisions in criminal matters adopted on November 2000, the broad lines of which were set out in the Commission staff working paper.
The main idea of this new instrument is to substitute pre-trial detention with a non-custodial supervision measure and to transfer this measure to the Member State where the suspect normally has his or her residence. This would allow suspects to be subject to a supervision measure in their normal environment until such time as they are brought to trial in the foreign Member State..
For such a measure to be effective the new instrument would have to include, as a last resort, a coercive mechanism to return uncooperative suspects to the trial State, if necessary by force.
The consultation process
This Green Paper is the third step in the consultation process on alternatives to pre-trial detention.
The first step was to draw up and send out a questionnaire on pre-trial detention and alternatives to such detention in order to identify possible obstacles to cooperation between Member States in this area. The replies are summarised in the Commission staff working paper.
The second step was to produce a discussion paper on the basis of the replies to the questionnaire and to organise an experts' meeting. The paper includes a proposal to introduce a European order to report regularly to a designated authority as a European-level non-custodial pre-trial supervision measure.