Principled reflection on individualization, proportionality and alternatives to detention, in light of the ECHR jurisprudence on Albania.

By Sokol Sadushi*

Pre-trial detention is one of the most sensitive issues in a state governed by the rule of law, as it simultaneously affects daily judicial practice, penal policy, public perception of crime and the relationship with European standards. The way in which pre-trial detention is used serves as a direct indicator of the quality of judicial control over personal freedom, which is verified by the level of individualization of the assessment, the provability of the alleged risk and the real implementation of alternatives.

In Albania, this topic takes on special weight not only because of the social sensitivity towards crime, but also because the standard of security measures is a daily “test” of the functioning of the rule of law. When pre-trial detention increases and becomes a common practice, we do not have just a statistical issue, but a signal that the guarantees of personal freedom and the quality of judicial reasoning are weakening. The debate on pre-trial detention is not a debate about tolerance towards crime; it is a debate about rigor towards the standard. The emphasis, therefore, is not on the rhetoric “for” or “against” severity, but on the requirement that the restriction of freedom be based on concrete circumstances and be convincingly justified, in function of the purpose of the measure and possible alternatives.

In this sense, this analysis is based on three pillars: the institutional role, the international standard and the academic obligation. It aims to be a principled reflection on the constitutional and convention standard of security measures, in the light of the jurisprudence of the ECHR and the obligations arising from Albania’s membership in the Council of Europe, as well as from the process of integration into the European Union. The issues are raised on a professional and civic level: not to “judge” the system, nor to comment or prejudge specific issues, but to identify the factors that fuel the high level of pre-trial detention, to propose solutions and to recall that Freedom is the rule, while detention is the exception.

1. Security measures and the culture of detention

Personal security measures guarantee the criminal process: the presence of the suspect, the integrity of the evidence and the prevention of concrete risks. They are not a preliminary punishment and cannot replace the efficiency of the investigation by isolation. In this sense, detention is the most severe restriction of freedom and can only be imposed when it is truly necessary, individualized and proportionate, and when alternative measures are not sufficient.

When detention is treated as the “first choice”, due to public pressure, procedural convenience or standardization of reasoning, the fundamental balance between the public interest and individual rights is put at risk. The debate on security measures is therefore not simply technical. At its core, it is a debate about the quality of reasoning and the professional courage to decide according to the standard, not according to expectations.

2. Why this concern? requires immediate attention?

International reports on Albania (Council of Europe, European Union and UN mechanisms) have signaled a structural problem: The level of pre-trial detention is high and often prolonged., making detainees make up over half of the prison population.

According to published data, in December 2025, it was reported that there were 4503 people in Albanian prisons, of whom 2569, or 57%, were detained awaiting trial. When over half of the prison population is still untried, we risk turning the exception into the rule. This percentage is an alarming indicator: the measure “prison arrest” risks becoming normal.

In practice, the high level of pre-trial detention is fueled by a vicious circle because:

-the prosecution tends to request the most severe measure as an immediate "guarantee";
-the court, under the pressure of public criticism or reputational risk, may be tempted towards the solution that is “safer” in public perception;
-alternative measures are treated formally, with a standard sentence;
-processes take longer; detention is extended and arrest begins to be treated as the first choice, not as an exception.

This culture produces two serious consequences: first, weakens the presumption of innocence in public perception; Secondly, increases the risk of treaty violations, accompanied by state punishments and reduced trust in justice.

3. Where does the fundamental problem lie?

Professional debate has identified the “weak point”. Problems arise from the initial phase, when risks are often raised in an abstract manner (“risk of flight”, “risk of evidence tampering”), without being linked to concrete and individualized circumstances. This is fueled by “external pressure” and “fear” of consequences, pushing decision-making towards logic. "better inside, or something might happen..."The Convention does not recognize this approach as a criterion. It requires verifiable, individualized, and fact-based reasoning.

Another weak point is the formal treatment of alternatives. Alternatives are not just a formal reference; they are part of the test of necessity and proportionality. Without a real examination of them, detention loses its exceptional character.

The third problem is “inertia.” Mand over time, the reasoning cannot remain unchanged; circumstances develop, the proceedings move from one stage to another and, consequently, the burden of reasoning increases. Therefore, any extension of pre-trial detention must be based on actual and verifiable elements, not on the repetition of the same formulas. If the decision is repeated with the same phrases, pre-trial detention returns to a routine state, not a justified measure.

4. Constitutional and Conventional Obligation: What Does the ECHR Demand from Albania?

The case law of the Strasbourg Court (ECHR) treats detention as an exceptional measure. Two important decisions (Hysa v. Albania and Gëllçi v. Albania), They set the standard clearly: the problem is not the lack of rules, but the practical application of individualization, proportionality and real consideration of alternative measures.

First, The ECtHR sets the cornerstone of any decision on security measures. The reasonableness of detention “cannot be assessed in the abstract… [but] must be assessed on the facts of each case and according to its specific features…” (Hysa v. Albania, §66). This means that it is not enough to allege “risk of absconding” or “risk of evidence being destroyed”. The decision must clearly explain: What facts prove the risk? Why is the risk real in that case? Why is it not neutralized by less restrictive measures?

Secondly, The Court makes it clear that “reasonable suspicion” is only the gateway to detention and not a permanent justification. In the case "Gëlçi against Albania" it is expressly stated: “… the continuation of a reasonable doubt is a condition sine qua non for the validity of detention in prison, but it is no longer sufficient after a certain period of time has passed…” (§ 19). The message is clear that detention cannot continue “by inertia”. Over time, the State must demonstrate other relevant and sufficient reasons, updated and linked to the concrete stage and needs of the process.

Third, The ECtHR strikes at the phenomenon of justifying the extension of detention with general phrases. In the case "Gëlçi against Albania", the courts “…did not specify the specific evidence that had to be collected, nor did they explain why that evidence could not have been obtained at an earlier stage of the investigation.” (§ 23). It is also noted that the risk of tampering with evidence is not automatically accepted. According to the Court, the authorities “…did not respond to the applicant’s submissions that the suspicion against him was based exclusively on documents that had already been seized by the prosecution and that there was therefore no risk that he would tamper with witnesses or other evidence.”

Fourthly, The sharpest point for Albanian practice – the ECtHR criticizes the formal treatment of other alternative measures. In "Hysa against Albania" states: “…except for a formal declaration … the domestic decisions did not really indicate what weight was given to alternative measures (§76). While in "Gëlçi against Albania", this finding is repeated directly: “It does not appear that those courts have properly assessed any alternative security measures beyond a purely formal declaration …” (§25). These two quotes are the “compass” of any reform of the practice: a detention decision that mentions alternatives only as a standard phrase, without any real analysis, is indefensible under the Convention.

In this context, the Strasbourg Court's standard is straightforward: (i) the reasonableness of detention is not assessed in the abstract, but on concrete facts; (ii) after a period of time, reasonable suspicion is not enough; (iii) the extension cannot be justified by general “risks” without showing concrete actions/evidence that remain to be performed and why they were not performed earlier; and (iv) Alternatives to detention cannot remain a formal declaration. This is a clear obligation for Albanian investigative and judicial authorities, as part of the responsibility to guarantee personal liberty and compliance with Council of Europe standards.

In simple terms, this means that the decision must clearly answer four questions: What specific risk exists? What facts are based on it? Why is it relevant? Why is it not neutralized by less restrictive measures?

5. Causes of high pre-trial detention: a chain problem, not the fault of one institution

The phenomenon of high pretrial detention cannot be explained by a single actor. It is a problem of a chain, where each link influences the next.

First, Criminal policy has shown a tendency to become harsher and expansion of the scope of criminal offenses, which increases the volume of cases and encourages demands for more stringent security measures;

Secondly, delays in investigation and trial prolong detention and return the measure of exclusion to a routine state;

Third, public pressure and fear of consequences (escape, repetition of the offense, or media reaction) may create a tendency for decision-making to be guided by the need to avoid any public criticism or liability, rather than by analysis of the evidence and rigorous application of the standard of individualization and proportionality;

Fourthly, The lack of a functional infrastructure of alternative measures (real monitoring, control mechanisms, coordination) makes detention seem the “easiest solution” in practice, even when it is not legally necessary.

6. Solutions: clear tasks for the legislator, the police, the prosecution and the courts

Public safety is not protected by turning pre-trial detention into a routine. It is protected by using pre-trial detention only when it is truly necessary, with verifiable justification. The solution does not come from rhetoric, but from disciplining practice at every level.

lawmaker must act with prudence. The continuous increase in penalties and the criminalization of minor offenses increase the overload throughout the entire penal chain and push for detention to be used as the first, almost automatic reactionAt the same time, the legal framework and tools for alternative measures must be strengthened in reality – not just “on paper” – with functional monitoring and enforcement mechanisms, so that the prosecution and the court can have reasonable confidence that these measures are working. Finally, the legislator should support, with concrete policies and resources, the reduction of procedural delays that prolong detention, aiming to speed up trials and reduce the structural burden that produces delays.

Judicial police must improve the quality of the factual basis for claims of “risk of flight”, “destruction of evidence” and/or “risk of committing other crimes” avoiding standard formulas. These claims must be based on concrete data such as behavior indicating a risk of flight, attempts to contact witnesses, real circumstances facilitating flight, or indications of influence on evidence.

PROSECUTOR must present the request for a security measure with individualized reasoning, based on concrete facts and not on standard phrases. Each request must be individualized: (i) What facts show the risk? (ii) Why is the risk real? (iii) Why aren't other alternatives enough? (iv) Why is detention proportional? This approach does not create a new standard. It applies the existing standard of individualization and proportionality, which the ECHR requires.

Court have the responsibility to act as a “constitutional and convention filter” in real time. They must be demanding; without individualization, without concrete facts and without a real consideration of alternatives, detention cannot be a default solution. Standard "Hysa" prohibits abstract evaluation (§66); standard "Gelchi" prohibits the extension of detention on remand only on “reasonable suspicion”, without other grounds (§19). Both cases prohibit the formal rejection of other alternatives (Hysa §76; Gëlçi §25)This means that the decision must be readable as a full reasoning, built on the facts of the case, the concrete assessment of the risk, the need for the measure, the proportionality test and the reasons why alternative measures are not sufficient.

7. Conclusion: detention as a barometer of personal freedom and European standards

Pre-trial detention is a clear indicator of the protection of personal freedom and the quality of judicial control. When pre-trial detention becomes the rule, freedom as a principle is weakened, the presumption of innocence fades and the risk of constitutional and convention violations increases. When pre-trial detention is restored to its nature, as a necessary, individualized, proportionate and evidence-based exception, justice increases its legitimacy and the country strengthens the European standard that is required of it.

In a reality where it is reported that 57% of people in prisons are in pre-trial detention, the answer cannot be either politicization or simplification of the debate. Professional calm and discipline in implementation are required. The Convention is clear: it does not accept abstract risks, does not allow alternatives to be formally addressed and does not tolerate the extension of pre-trial detention. "by inertia".

Detention is not an indicator of strength, but an indicator of standard. When it returns to routine, justice loses precisely what it is supposed to protect: freedom as a principle and reason as a guarantee. This is a daily professional test: to decide on facts, not on assumptions; on real alternative, not "on paper"; on controllable reasoning, not on inertia. Only in this way can we protect public safety without violating the foundation of the rule of law.

*President of the Supreme Court
Former Constitutional Court judge; law professor