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The new decision forces courts to analyze alternative measures and places the burden of proof of the need for isolation on the prosecution.
The Joint Panels of the Supreme Court decided today to partially change the practices of assigning security measures to detained persons, where the most extreme measure is that of "prison arrest".
Based on the decision announced on behalf of the Supreme Court by Sokol Sadushi, the Courts in the Republic of Albania will have to justify why the security measure "prison arrest" is more appropriate than other security measures applied in Albania.
This means that judges who sign decisions on security measures must argue why in a case of "prison arrest" this measure is more appropriate than other measures such as "house arrest", "compulsion to appear", etc. In this context, based on the decision of the Supreme Court made public on May 4, 2026, judges or courts have the obligation to justify why alternative measures are inappropriate to be imposed.
At the heart of the decision lies the court’s obligation to realistically consider alternative measures to deprivation of liberty. According to the College, the previous practice, where it was sufficient to justify that “prison arrest” was the most appropriate measure without analyzing other options, conflicts with the relevant articles of the Code of Criminal Procedure and with Article 5 of the European Convention on Human Rights. In this context, the courts must provide clear, individualized and fact-based reasoning as to why more lenient measures are not sufficient.
The decision also emphasizes that “prison arrest” should remain an exceptional measure. The dangerousness of a person cannot be determined solely by the nature of the criminal offense or the envisaged punishment, but must be based on a detailed analysis of the specific circumstances, including the manner in which the offense was committed, the consequences, and the personal and family data of the suspect.
Another key element of the decision is the shift of the burden of proof to the prosecution. The Joint Panels determine that it is the Prosecution that must justify the need for the imposition and continuation of the measure of “prison arrest”, while the court has the obligation to verify this need at every stage of the process. The decision-making cannot be conditioned by the lack of evidence on the part of the defendant.
This decision of the Supreme Court is expected to significantly impact the way in which Albanian courts will deal with requests for security measures. It is expected to raise the standard of judicial reasoning, limit the use of detention as a first resort and ensure stricter and proportionate control over the restriction of personal liberty. The decision aims to contribute to the uniformity and predictability of judicial practice, harmonizing it with the Constitution and the standards of the European Court of Human Rights.
Obligation to consider alternative measures
In the first point of the decision, the Joint Panels reject the previous approach according to which the courts were not obliged to realistically analyze alternative measures to imprisonment. According to the new interpretation, such a practice conflicts with Articles 228-230 and 245/1, letter “ç” of the Code of Criminal Procedure, as well as with Article 5, paragraph 3 of the European Convention on Human Rights.
Courts must now examine in a concrete and reasoned manner any less restrictive measure of personal freedom, clearly explaining why they are not sufficient in the specific case. The reasoning is required to be individualized, based on facts and directly related to the specific circumstances of the case.
"Prison arrest" as an exceptional measure
The decision emphasizes that the measure "prison arrest" is of an exceptional nature and should only be used when every other alternative proves inappropriate. The Joint Panels clarify that the assessment of dangerousness cannot be based solely on the nature of the criminal offense or the punishment provided by law.
Instead, a comprehensive analysis of the concrete circumstances is required, including the manner in which the offense was committed, its consequences, as well as elements related to the personality, behavior, and personal and family situation of the person against whom the measure is sought.
The burden of proof lies with the prosecution.
Another essential element of the decision is the clear definition of the burden of proof. According to the Panel, it is the prosecution that must justify the need for the imposition and continuation of the measure of “prison arrest”. The court, for its part, has the obligation to verify this need at every stage of the criminal proceedings.
The decision emphasizes that the court cannot condition its decision-making on whether or not the defendant presents evidence in his favor, thus strengthening the principle of the presumption of innocence and procedural protection. /Pamphlet/
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