TIRANA, July 7 /ATA/ The High Court has published the judgement of its United Colleges, adopted on May 4 of this year, concerning the review of the practice of imposing pre‑trial detention.
According to the High Court, this judgement further develops the standard for applying the measure of deprivation of liberty and represents a significant step toward the harmonization of judicial practice. It also strengthens constitutional and Convention‑based safeguards under Article 5 of the European Convention on Human Rights, ensuring the protection of the right to liberty and personal security.
In its 27‑page judgment, delivered by judges Sokol Sadushi, Ilir Panda, Valbona Çekrezi, Ervin Pupe, Sokol Binaj, Albana Boksi, Sandër Simoni, Artur Kalaja, Arbena Ahmeti, Gentian Medja, Sokol Ngresi, Margarita Buhali, Enton Dhimitri, Enkelejda Metaliaj, Vojsava Kola, and Genti Shala, the High Court emphasized that prosecutors must provide adequate reasoning when seeking pre‑trial detention.
The United Colleges focused on three key issues of interference with the right to liberty under Article 5 of the European Convention on Human Rights:
…the question arises whether, in light of these provisions and Article 5 § 3 of the European Convention on Human Rights (ECHR), it is compatible with the Convention to maintain the position that, when pre‑trial detention is requested or ordered, the court has no obligation to genuinely examine alternative measures, and may simply reason that the chosen measure is appropriate for the specific case.
…the question is whether the ‘particular dangerousness of the offence and of the accused’ can legitimately serve as a basis for ordering pre‑trial detention if it is inferred solely or primarily from the gravity of the offence, its abstract seriousness, or the statutory sentencing range — without a concrete, individualized assessment of the circumstances of the case and of the person concerned.
…the question concerns which party bears the burden of demonstrating the necessity of imposing and maintaining pre‑trial detention, and whether it is consistent with Article 5 § 3 of the European Convention on Human Rights (ECHR) and Articles 228–230 of the Albanian Code of Criminal Procedure to uphold the view that the unsuitability of detention may only be acknowledged if the accused produces positive evidence.
As regards the first issue, the judgment states that the court is under an obligation to genuinely examine less restrictive alternatives to deprivation of liberty and to provide explicit reasoning as to why such measures would be insufficient in the specific case. This reasoning must be expressed, individualized, and supported by concrete facts and circumstances, clearly reflecting the actual risk involved as well as the necessity, suitability, and proportionality of the restriction of liberty, in line with constitutional and Convention standards.
According to the judges, it is not sufficient for the court merely to declare that pre‑trial detention is appropriate; the court must provide concrete reasoning as to why less restrictive measures — such as house arrest, reporting obligations, or bail — would not adequately secure the aims of the criminal proceedings.
The personal security measure of pre‑trial detention is, under paragraph 1 of Article 230 of the Code of Criminal Procedure, considered the measure of last resort (ultima ratio). It may be imposed only where all other measures prove inadequate to safeguard the needs of the criminal proceedings. These needs, identified in paragraph 3 of Article 228 of the Code, must be such that none of the alternative measures — other than this restrictive measure of liberty, pre‑trial detention — can effectively secure them.
As regards the second issue, the judges argue that when ordering pre‑trial detention, the prosecutor initially and the courts subsequently have a duty to provide individualized reasoning, grounded in facts and specific circumstances of the case, linking the necessity of detention to the dangerousness of the offence and of the accused in the concrete situation. This assessment must be based on the particular circumstances of the act, the manner in which the offence was committed, and the information relating to the person against whom the measure is imposed — including personality, conduct, individual and family circumstances, as well as any other relevant indicators for evaluating the real procedural or social risk posed in the specific case.
The judgment further argues that when the particular dangerousness of the offence and of the accused is verified, pre‑trial detention is justified as the most appropriate measure to safeguard the needs of the proceedings. However, such dangerousness cannot be inferred solely or primarily from the abstract nature of the crime or the statutory sentencing range. It must result from a combined assessment of the specific criminal act, the manner of its commission, the consequences produced, the personality and conduct of the accused, and other relevant circumstances, considered together in the concrete case.
As regards the third issue, the United Colleges determined that the burden of justifying the necessity of imposing or continuing pre‑trial detention lies with the prosecution, while the court has the duty to verify and provide reasoning for that justification at every stage of the proceedings.
The United Colleges emphasize that the prosecution bears the obligation to present and concretely argue the facts and circumstances supporting the necessity of pre‑trial detention, including the specific risk involved and the inadequacy of less restrictive measures. In its decision‑making, the court cannot be conditioned by whether or not the accused produces ‘positive evidence.’ The accused is only responsible for presenting personal, family, health‑related, or other factual circumstances when invoking them as arguments in favor of less restrictive measures.”
The case that gave rise to this decision concerned Begtash Zeneli, a 63‑year‑old man arrested in October 2025 in Lezhë after 7 kilograms of cannabis were found in his home. Although the Prosecution requested pre‑trial detention, the Court of Appeal ordered house arrest, taking into account his age, the fact that he was legally rehabilitated, and the serious health condition of his wife.
The High Court, after analyzing the prosecutor’s appeal, decided to uphold the measure of house arrest. The United Colleges assessed that although the dangerousness of the offence was high, it could not automatically prevail over the suspect’s specific human circumstances unless a concrete risk of absconding or reoffending was proven.”
In its reasoning, the High Court emphasized that this change is necessary in order to align Albanian justice with the standards of the European Court of Human Rights (ECtHR). According to the decision, pre‑trial detention must always remain as ultima ratio (the measure of last resort), since the presumption must always be in favor of liberty.
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