To have your cake and eat it too: A short history of EU's failure to harmonise pre-trial detention

A reflection on the lack of an EU approach of pre-trial detention. There are many ‘success stories’ as to the harmonisation of criminal (procedural) law within the EU, such as the directives on procedural safeguards, that often build upon consistent case-law of the ECtHR. Rules on pre-trial detention are not among these succes stories. On the one hand, the European Arrest Warrant (EAW) has secured, amongst others, a practice in which pre-trial detention can provisionally start in each EU-state, not always with as much judicial scrutiny as a strictly national application of pre-trial detention would require. On the other hand, though, attempts to harmonise national rules on pre-trial detention – and, e.g., promote the use of alternatives for a detention order – so far have failed. This seems odd, as the ECHR and the ECtHR’s case-law on pre-trial detention has been consistent as well and harmonising rules and procedure in this regard would have made sense. In the following, I will shortly point at important aspects of the ECtHR case-law that could be the starting point of such harmonisation (para. 2), after which I will look back in time as I go into the development of the Corpus Juris, which tried to introduce a provision on pre-trial detention in the EU legislation. I will then show that this part of the Corpus Juris has not been followed up (contrary to some important other features) (para. 4) and that up until today, those striving for minimum rules on pre-trial detention in the EU are disenchanted (para. 5).