Pre-trial detention abroad: the rule nobody uses
Someone arrested away from home is far more likely to be held before trial, and usually not because the offence is worse. It is because they have no address in that country and no way of being supervised there. EU law provides a direct answer to exactly that problem — supervision measures enforced in your own country while proceedings continue abroad — and it is almost never requested.
Why foreigners are detained more
Detention decisions everywhere turn on risk, and one of those risks is flight. For a resident the answer is straightforward: an address, a job, a family, a passport surrendered. A visitor has none of that in the country where the case is running, so the same offence produces a different outcome.
This is not, in principle, discrimination. It is a real supervision problem, and the useful response is not to protest it but to solve it — by producing something the court can supervise.
The European Supervision Order
A European framework decision allows a supervision measure imposed in one member state to be recognised and enforced in the state where the person lawfully and ordinarily resides. In plain terms: instead of being held abroad awaiting trial, you can be subject to reporting obligations, a residence requirement or a travel ban at home, monitored by your own authorities, and return for the hearing.
It exists precisely for the non-resident who would otherwise be detained only because of where they live. It has to be requested, the person must consent, and the residence state must accept — and because it is used so rarely, it usually has to be raised expressly with the court by counsel who knows it exists.
- It applies to supervision measures, not to custody: it is an alternative to detention, not a way out of it once imposed.
- It requires lawful ordinary residence in the state of enforcement, or its consent where that is not the case.
- It does not end the proceedings, which continue in the state where the case is being heard.
- Breaching the measures at home can lead to surrender to the state of trial.
The guarantees that apply everywhere
| Guarantee | Content | Source |
|---|---|---|
| Prompt judicial control | Arrest must be reviewed by a judge without delay | Art. 5 ECHR |
| Trial within a reasonable time, or release | Detention cannot be open-ended | Art. 5(3) ECHR |
| Review of lawfulness | A right to have detention reviewed by a court | Art. 5(4) ECHR |
| Access to a lawyer | Before questioning and confidentially | Directive 2013/48/EU |
| Information about the charge | In writing, in a language you understand | Directive 2012/13/EU |
| Interpretation and translation | Free, including of essential documents | Directive 2010/64/EU |
What these do not harmonise is how long the police may hold you before a judge, whether bail exists, and how long detention may last. Those differ substantially, and in Italy in particular bail does not exist at all, as explained in the guide on Italian precautionary measures.
What actually persuades a court
Whatever the country, the same material moves these decisions, and it takes days to assemble.
- An address in the country of trial where the person can stay and be found.
- Willingness to surrender the passport and to report as required.
- Documented employment, studies or family responsibilities.
- A concrete proposal for supervision, including at home under the European mechanism.
- Where relevant, acceptance into a treatment programme.
Families frequently spend the first week seeking reassurance and the second gathering documents. Reversing that order changes outcomes.
Frequently asked questions
Why am I being held when a local person would not be?
Usually because there is nowhere in that country for you to be supervised. The answer is to produce something the court can supervise, including under the European mechanism.
Can I wait for the trial at home?
There is a European framework allowing supervision measures to be enforced in your state of residence while proceedings continue abroad. It must be requested and consented to.
Is there a maximum period of pre-trial detention?
It differs from country to country, but detention cannot be open-ended: the Convention requires trial within a reasonable time or release, and periodic review by a court.
Does this apply if I am not an EU citizen?
The mechanism turns on lawful ordinary residence in the state of enforcement rather than on nationality, so it can apply to non-EU nationals resident in a member state.
If someone is being held abroad
Supervision at home has to be raised early, before the detention decision hardens. Coordination between the two countries is described in how a correspondent case is run. First contact is free and covered by professional privilege.