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The preventive measure of remand in custody is the most severe form of procedural measure in criminal proceedings, as it results in the temporary deprivation of liberty prior to the delivery of a final and enforceable judgment. For this reason, it must be applied only exceptionally and in strict compliance with the principles of necessity, proportionality, and non-discrimination.

The issue of imposing remand in custody on foreign nationals is particularly sensitive when their very status (lack of permanent residence, citizenship, or social ties within the country) is used as the principal argument for their detention. Such an approach runs counter to established European standards and creates a serious risk of discriminatory treatment.

2. Recommendation Rec(2006)13

According to Recommendation Rec(2006)13 of the Committee of Ministers to member states, member states are obliged to ensure equality and non-discriminatory treatment within the criminal justice system.

It is explicitly emphasized that:

Foreign suspects and offenders shall not be remanded in custody or sentenced to custodial sanctions on the grounds of their status, but, as for other suspects and offenders, only when strictly necessary and as a measure of last resort.

This means that:

• a person’s status as a foreign national cannot, in itself, justify pre-trial detention;
• the measure may be imposed only when it is strictly necessary;
• detention must be used as a last resort, where all less restrictive alternatives are unavailable or insufficient.

3. Conditions for the Admissibility of “remand in custody”

According to established European standards and the case-law of international bodies, a person may be remanded in custody only if all of the following four conditions are met cumulatively:

1. a) Reasonable suspicion of having committed a criminal offence

There must be a reasonable suspicion, supported by specific evidence, that the person has committed a criminal offence. Abstract assumptions or purely formal charges are insufficient.

1. b) there are substantial reasons for believing that, if released, he or she would either abscond, or (commit a serious offence, or interfere with the course of justice, or pose a serious threat to public order; and

There must be real and concrete reasons for believing that, if released, the person would:

• abscond;
• commit a serious criminal offence;
• interfere with the investigation;
• pose a serious threat to public order.

A general reference to “foreign origin” or “lack of a permanent address” does not automatically constitute proof of a risk of absconding.

1. c) there is no possibility of using alternative measures to address the concerns referred to in b.; and

Remand in custody is permissible only where no less restrictive measures can be effectively applied, such as:

• bail,
• reporting obligations,
• a travel ban,
• electronic monitoring.

The court is obliged to provide reasons explaining why such alternatives are inapplicable in the specific case.

Remand in custody must serve exclusively the aims of criminal justice and must not perform a preventive, punitive, or migration-related function.

4. The Concept of a “Serious Criminal Offence”

A high-level crime, typically a felony or indictable offence, characterized by severe legal penalties, including long-term imprisonment (often 5+ years or life), substantial fines, and permanent criminal records. These offenses involve significant violence, danger to life, or major harm, such as murder, sexual assault, robbery, or major fraud. 

Key characteristics of serious offences include.

• Severe Punishment: Convictions often carry potential prison sentences exceeding one year, or sometimes five to seven years or more.
• High-Risk Behavior: Acts involving violence, serious personal injury, threat to life, or major property destruction.

• Serious Nature: Includes murder, manslaughter, kidnapping, terrorism, armed robbery, serious drug trafficking, and aggravated burglary.
• Legal Classification: Often defined by statute as indictable offenses or felonies rather than misdemeanors or infractions

Examples of such offences include:

• murder and intentional homicide;
• serious sexual offences;
• kidnapping;
• terrorism;
• armed robbery;
• large-scale drug trafficking;
• serious forms of fraud with significant social or economic impact.

In the case of minor or non-serious offences, the imposition of pre-trial detention should be the exception rather than the rule.

5. Unlawfulness and the Risk of Discrimination in the Automatic Remand in custody foreigns

A practice whereby foreign nationals are remanded in custody solely due to the lack of citizenship, permanent residence, or “social ties” constitutes an unlawful act and amounts to discrimination.

Such an approach:

• violates constitutional rights;
• contradicts Recommendation Rec(2006)13 of the Committee of Ministers, which:
  a) establishes strict limitations on the use of pre-trial detention;
  b) encourages the use of alternative measures whenever possible;
  c) requires judicial authority for the imposition and continuation of pre-trial detention and alternative measures;
  d) guarantees that persons remanded in custody are held under conditions and a regime appropriate to their legal status, based on the presumption of innocence;
  e) requires the provision of appropriate facilities and proper management for pre-trial detention;
  f) ensures the establishment of effective safeguards against potential violations of the rules;
• is contrary to Council Framework Decision 2009/829/JHA of 23 October 2009 and Recommendation CM/Rec(2012)12 of the Committee of Ministers;
• creates conditions for arbitrariness;
• undermines trust in the justice system.

European standards require an individualized assessment of each case, based on concrete facts rather than stereotypes.