Pre-trial detention and EU law: Constitutional constraints, legislative reluctance and non-binding norms

Pre-trial detention has been at the centre of the European Union’s policy debate in the last few years. Suggestions to adopt a set of harmonised rules on pre-trial detention within the EU, so far, have been met with resistance. This article begins with an analysis of the existing body of norms set by the EU procedural rights Directives, suggesting how they could enhance the rights of pre-trial detainees. It is argued that this current piecemeal approach to pre-trial detention in the EU remains deeply dissatisfying. The article then moves on to dissect the limits of EU competences to legislate on this field with a view, in particular, to reduce pre-trial detention. It is suggested that the scope of the Union’s normative intervention can be either functional (instrumental to judicial cooperation and mutual trust) or principled (focused on the rights of persons detained, irrespective of its relevance for inter-state cooperation). The article goes on to analyse the recently adopted European Commission’s Recommendation on pre-trial detention. In doing so, it tests the ability of this text to incorporate ECtHR’s case law into EU law and suggests that the Court of Justice may be nudged to develop a bolder interpretation of secondary legislation in accordance with some guidelines included in the Recommendation. The contribution conclusively reflects on the possible way forward, by discussing the constitutional constraints deriving from a strict reading of Article 82 Treaty on the Functioning of the EU and the strategies to get around the main ‘roadblocks’ in the path towards harmonisation and greater protection of fundamental rights behind bars.