The Application of the European Supervision Order to House Arrest: A Legal Dilemma

Framework Decision 2009/829/JHA established the European Supervision Order (ESO) as a mutual recognition instrument applying to pretrial measures imposed as an alternative to remand in custody. The objective is to prevent the de-socialisation of the suspect or accused person, who would otherwise risk undergoing pretrial detention in the Member State where criminal proceedings are brought, rather than a non-custodial measure in his or her Member State of lawful and ordinary residence. Against this backdrop, it is not straightforward whether house arrest falls within or outside the scope of the ESO system. On the one hand, it is treated as detention in several national legal orders and in the case-law of the European Court of Human Rights. On the other hand, it is not served in a prison facility. This contribution aims to put forward some arguments in favour of an interpretation of the ESO FD that encompasses house arrest, thereby maximising the ESO potential. To this purpose, the Author will first argue that ‘alternative to detention’ should be construed as an autonomous concept of EU law, with a specific meaning tailored to the ESO FD. By applying the usual wording-context-objective hermeneutic technique, it is argued that the notion should cover any measure served out of prison premises, including house arrest. In the alternative, the contribution examines the obligation for the issuing authority to interpret its national law consistently with EU law, as well as the principle of mutual recognition to which the executing authority is subject. Even analysing the issue from these angles, the outcome would be that both the issuing and the executing authorities should consider house arrest as an alternative to detention for the purposes of the ESO FD, regardless of how it is defined in their national law. Finally, some further solutions and concluding remarks are presented.