Recent European Court of Justice case-law on Directive 2016/343 on the presumption of innocence (Milev, RH & DK): are pre-trial detentions covered by this instrument?

Abstract

Directive 2016/343 on the presumption of innocence was adopted in 2016, setting common standards for strengthening mutual trust in criminal proceedings among Member States. Even though it significantly improved the level of treatment of suspects and accused persons, its application to pre-trial detentions has been quite controversial. This paper critically analyses three recent judgments of the European Court of Justice about this issue – Milev, RH and, especially, DK – with the purpose of clarifying whether the Directive – and in particular, Arts. 4 and 6 thereof – could be applicable to such measures and, if not, what actions might be taken to improve the protection of individuals in detention.