EAW-ALT: Addressing the overuse of pre-trial detention and the disproportionate use of EAW with alternative cross-border mechanisms

Pre-trial detention is intended to be used as a measure of last resort.  However the European Union (EU) is facing a long-standing crisis of prison overcrowding which undermines mutual trust and the functioning and legality of mutual recognition instruments like the European Arrest Warrant (EAW). Research shows that EAW is used and enforced disproportionately regardless of existing alternative cross-border cooperation mechanisms, such as the European Supervision Order, European Investigation Order, European Probation Order and Framework decision 2008/909/JHA on transfer of prisoners (together, the ‘Alternative measures’). In the absence of common EU standards on pre-trial detention and reform of the EAW to prevent overuse, it is key that the Alternative measures are effectively used to reduce disproportionate enforcement of EAW for detention, in particular of non-nationals or non-residents.

While the use of EAW has consistently increased since 2005, both full transposition and use of Alternative measures remain low across the EU Member States. In the light of growing uncertainty around the workability of the EAW due to poor prison conditions and rule of law concerns in some Member States, the Council has called upon the Member States and the European Commission to promote Alternative measures to detention and to establish guidelines on their application. In light of this, there is a need to understand the obstacles in practice to the use of the Alternative Measures and how they may be addressed in order to produce such guidelines.

Project objectives

The project aimed to address issues related to detention pre-and post-trial, particularly to raise awareness about the availability of alternatives. More broadly, the project aimed on  providing a sound evidentiary basis for firstly, policy-making on responses to problems caused by the overuse of pre-trial detention and disproportionate use of the EAW and, secondly, effective efforts to better implement the Alternative Measures.

Approach and activities

In the course of the project, we collected detailed data on the use of the EAW and Alternative Measures in five EU Member States – Luxembourg, Greece, Austria, Belgium and Ireland. The data was collected by partner organisations mainly through desk-based research, interviews with relevant criminal justice stakeholders, FOIA requests. On this basis, Fair Trials produced the  regional report ‘Protecting fundamental rights in cross-border proceedings – Are alternatives to the European Arrest Warrant a solution?‘, identifying the main obstacles to transposition and practical implementation of Alternative Measures to present to EU stakeholders. The report is a tool to raise awareness and to train practitioners (lawyers, judges and prosecutors) on the use of Alternative measures. The Report and Executive Summary are available for download.

On 18 February 2021 a webinar on ‘Alternatives to European arrest warrants and pre-trial detention in EU cross-border proceedings: Practical insights and perspectives’ took place. The training materials form the training event on 26 February 2021 are available here.