Presumed innocent but detained pretrial in Germany and EU

The 19-year-old introduced earlier than a Berlin district courtroom in April 2021 was accused of stealing two bottles of La Vie est Belle fragrance from Lancome. At the time of his arrest, he was coping with an habit to crystal meth and sleeping in prepare stations all through Berlin. Because of his homelessness and substance abuse, the Justice of the Peace ordered that the teenager be stored in jail till his trial — to make sure that the courtroom would know the place to seek out him.

Variations of this case, as described by the lawyer and journalist Ronen Steinke in his guide “Vor dem Gesetz sind nicht alle gleich” (All Are Not Equal Before the Law), occur hundreds of instances per yr in Germany. About 27,500 individuals have been detained pretrial in Germany in 2020, roughly 3% of all individuals charged with crimes. That meant that in January 2021, for instance, 12,000 of the 60,000 individuals in German prisons weren’t serving a ultimate sentence, successfully locked up whereas presumed innocent.

In many EU nations, the proportion of individuals in prisons and jails earlier than trial is even greater than in Germany. Across the European Union, about 100,000 persons are at the moment being held in pretrial detention, which might vary on common from just a few months to over a yr relying on the nation.

Most in pretrial detention accused of minor crimes

There is commonly a transparent sample to who will get locked up earlier than trial. Though international nationals make up simply 12% of the basic jail inhabitants in Germany, in keeping with federal statistics, they characterize 60% of individuals held in pretrial detention. Most individuals in remand custody are unemployed, and about half have been experiencing homelessness at the time of their arrest, one examine discovered.

Over one-third of individuals held in pretrial detention throughout Germany are accused of minor crimes corresponding to petty theft or shoplifting. “Usually, they’ll steal some combination of a bottle of booze, coffee or an energy drink, and meat salad or sardines,” stated Christine Morgenstern, a professor of prison regulation and gender research at the Free University of Berlin, who wrote her postdoctoral thesis on pretrial detention in Europe.

Though knowledge is sparse, analysis means that this is not only a German subject. “We’ve found a similar pattern in other European countries we studied,” Morgenstern stated, “even ones with more liberal policies.”

In deciding whether or not to detain individuals forward of trials, judges should assess whether or not the particular person would possibly tamper with proof, intimidate witnesses or, most significantly, flee prosecution if launched. In 95% of circumstances in Germany in which pretrial detention was ordered, judges cited flight threat as the primary motive.

In concept, judges ought to make this choice primarily based on the concrete proof in every particular person case. The actuality is commonly totally different, prison protection lawyer Lara Wolf stated: “We’re locking up people based on feelings, assumptions, personal theories.” Her doctoral thesis — certainly one of the few empirical research into flight threat in Germany and the European Union — investigates which particular person elements would possibly decide whether or not somebody flees prosecution.

Judges extra more likely to lock up marginalized individuals

In the absence of proof, Wolf’s thesis finds, judges type their very own theories primarily based on private experiences and preconceptions. Legal reference works and interviews with judges present that contacts overseas, for instance, are typically deemed an element for elevated flight threat, as are homelessness, unemployment and an absence of formal schooling. A gentle job, good schooling and private ties are interpreted as lowering flight threat. Into the late Nineteen Eighties, some judges suggested that gay relationships did not lower flight threat in the method that heterosexual ones did, as they have been thought-about much less dedicated. The result’s that individuals from marginalized teams are more likely to be detained earlier than trial.

Wolf analyzed 169 circumstances all through Germany in which judges assumed flight threat but the defendant was launched for procedural causes. “I was surprised just how clear the results were,” she stated. In all but 14 circumstances, defendants confirmed up for trial. A lawyer trying to repeat the analysis in his personal district discovered that just one defendant of 65 fled. “At this point, something is going so systematically wrong that the whole practice is simply unlawful,” Wolf stated. “I still find it shocking, the idea that we’re locking people up based on feelings, on false assumptions that no one has ever checked.”

Both the German Judges’ Association and the Berlin Senate Department for Justice, Diversity and Anti-Discrimination declined to touch upon the examine’s findings.

Pretrial detention is commonly harsher than jail sentences: People get locked up for 23 hours a day and have little contact with the outdoors world and little to move the time. Reintegration measures corresponding to paid jail labor and social applications aren’t out there to individuals presumed innocent, Morgenstern stated. And that’s in addition to the jarring expertise of being ripped from one’s life and not using a clear concept of what comes subsequent. “It’s a very uncomfortable, unstable, frightening personal situation,” Morgenstern stated.

Almost half the circumstances of individuals detained pretrial finish with out jail sentences

Pretrial detention is a scenario that may drag on. About 80% of individuals held in remand spend greater than three months locked up.

German regulation explicitly states that the time spent in detention earlier than trial should be proportionate to the potential sentence. Time in custody additionally will get deducted from the ultimate sentence.

But, in nearly half of the circumstances, the trial ends with none jail time. Prosecution statistics present that about 30% of individuals in pretrial detention have their eventual jail sentences suspended for probation. Ten % obtain solely fines, and one other 7% are acquitted, sentenced to neighborhood service or rehabilitation applications, or have their prices dropped.

There are various measures that courts may take. EU authorized methods already work collectively to attempt defendants in their residence nations or extradite them for prosecution fairly than locking them up on the spot, but, Morgenstern stated, “those options are barely used.”

Instead of pretrial detention, some advocate for digital monitoring of defendants in their properties when attainable, a follow frequent in Italy and Belgium. But Morgenstern stated home arrest had not decreased the variety of individuals inside the carceral system. “In Belgium, for example, they use these alternatives quite a lot, but then still detain the same number of people,” she stated. “We call that net widening. When that happens, not much is won in terms of freedom rights.”

Reducing pretrial detention may scale back overcrowding

With excessive numbers of individuals locked up, pretrial detention additionally contributes massively to jail overcrowding. Nearly one in three EU nations have extra individuals incarcerated than their official jail capacities enable. This is especially problematic throughout the pandemic: Cramped quarters and poor hygiene circumstances make prisons a perfect breeding floor for sicknesses corresponding to the coronavirus, a DW investigation confirmed.

If all pretrial detainees have been launched, nearly all EU nations would resolve their overcrowding downside immediately. And, although pretrial detention might stay crucial in some circumstances, lowering the follow would offer some reduction to overburdened prisons — and the individuals incarcerated inside them.

Edited by: Milan Gagnon and Gianna Grün

The undertaking is a part of a collaboration inside the European Data Journalism Network.

Project lead: Civio

Collaborators: Deutsche Welle, Divergente, El Confidencial, EUrologus, OBCT, VoxEurop

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