Pre-trial detention is among the most sensitive issues in a State governed by the rule of law, as it simultaneously implicates everyday judicial practice, criminal policy, public perceptions of crime, and compliance with European standards. The manner in which pre-trial detention is employed constitutes a direct indicator of the quality of judicial control over personal liberty. That quality is measured by the degree of individualization in judicial assessment, the evidentiary substantiation of the alleged risks, and the genuine application of alternative measures.

In Albania, this issue assumes particular weight not only because of societal sensitivity toward criminality, but also because the standard governing security measures represents a daily “test” of the effective functioning of the rule of law. When pre-trial detention increases and becomes routine practice, the matter is not merely statistical; it signals a weakening of the guarantees of personal liberty and a decline in the quality of judicial reasoning. The debate on pre-trial detention is not a debate about tolerance toward crime; it is a debate about fidelity to legal standards. The emphasis, therefore, lies not on rhetoric “for” or “against” severity, but on the imperative that any restriction of liberty be grounded in concrete circumstances and supported by compelling reasoning, directed toward the legitimate aims of the measure and mindful of available alternatives.

In this sense, the present analysis rests upon three pillars: institutional responsibility, the international standard, and academic duty. It seeks to offer a principled reflection on the constitutional and Convention-based standards governing security measures, in the light of the jurisprudence of the European Court of Human Rights and of the obligations arising from Albania’s membership in the Council of Europe, as well as from the process of European Union integration. The issues are addressed on a professional and civic plane: not to “judge” the system, nor to comment upon or prejudge specific cases, but to identify the factors contributing to the high level of pre-trial detention, to propose avenues for reform, and to reaffirm that liberty is the rule, whereas pre-trial detention is the exception.

1.      Security measures and the culture of Pre-Trial detention

Personal security measures are designed to safeguard the integrity of criminal proceedings: to ensure the presence of the suspect or accused, to protect the integrity of evidence, and to prevent concrete risks. They do not constitute a form of anticipatory punishment, nor may they substitute investigative effectiveness with custodial isolation. In this respect, pre-trial detention represents the most severe restriction of personal liberty and may be imposed only where it is genuinely necessary, individually reasoned, and proportionate, and where alternative measures prove insufficient.

When pre-trial detention is treated as the “first choice”, whether due to public pressure, procedural convenience, or standardized judicial reasoning, the fundamental balance between the public interest and individual rights is placed at risk. The debate concerning security measures is therefore not merely technical in nature. At its core, it concerns the quality of judicial reasoning and the professional courage to adjudicate in accordance with established standards, rather than prevailing expectations.

2.      Why does this concern require immediate attention?

International reports concerning Albania issued by the Council of Europe, the European Union, and United Nations mechanisms have identified a structural problem: the level of pre-trial detention remains high and is often prolonged, with remand prisoners constituting more than half of the total prison population.

According to publicly available data, as of December 2025, 4,503 individuals were reported to be held in Albanian penitentiary institutions, of whom 2,569 approximately 57 per cent were in pre-trial detention awaiting trial. When more than half of the prison population remains untried, there is a tangible risk that the exception will be transformed into the rule. This percentage is an indicator of systemic alarm: the custodial measure of “arrest in prison” risks becoming normalized rather than exceptional.

In practice, the high level of pre-trial detention is sustained by a self-reinforcing cycle because:

-          the prosecution tends to request the most severe measure as an immediate “guarantee”;

-          the court, under public scrutiny or concerned about reputational risk, may be inclined toward what is perceived as the “safest” solution in the public eye;

-          alternative measures are treated in a formalistic manner, often dismissed in a standard, formulaic sentence;

-          proceedings are protracted; detention is extended; and custodial arrest gradually comes to be regarded as the default option rather than the exception.

This culture yields two serious consequences. First, it erodes the presumption of innocence in public perception. Secondly, it heightens the risk of violations of the European Convention on Human Rights, potentially leading to findings of State responsibility, thereby undermining public confidence in the administration of justice.

3.      What constitutes the fundamental deficiency?

Professional debate has identified the principal point of fragility. The deficiencies often emerge at the very outset, when risks are invoked in abstract terms, “risk of absconding,” “risk of interference with evidence” without being anchored in concrete, individualized circumstances. This tendency is reinforced by external pressure and by apprehension regarding potential consequences, which may steer decision-making toward the logic of precaution: “better to detain, lest something occur.” The Convention framework does not recognize such reasoning as a sufficient criterion. It requires reasoning that is reviewable, individualized, and grounded in factual elements.

A further weakness lies in the formalistic treatment of alternatives. Alternatives are not mere rhetorical references; they constitute an integral component of the test of necessity and proportionality. Absent a genuine examination of their adequacy, pre-trial detention loses its character as an exceptional measure.

The third problem is inertia. With the passage of time, judicial reasoning cannot remain static. Circumstances evolve, proceedings advance from one phase to another, and the burden of justification correspondingly intensifies. Each extension of pre-trial detention must therefore be supported by current and verifiable elements, not by the mechanical repetition of formulaic phrases. Where decisions are renewed on the basis of identical reasoning, pre-trial detention ceases to be a justified measure and instead becomes a condition of ordinary course.

4.      The constitutional and convention obligation: what does the ECtHR require of Albania?

The case-law of the European Court of Human Rights treats pre-trial detention as an exceptional measure. Two significant judgments Hysa v. Albania and Gëllçi v. Albania articulate the governing standard with clarity. The deficiency identified is not a lack of legislative rules, but rather shortcomings in the practical application of individualization, proportionality, and the genuine examination of alternative measures.

First, the Court lays the cornerstone of any decision imposing a security measure. The reasonableness of pre-trial detention “cannot be assessed in an abstract manner … [but] must be assessed on the basis of the facts of each case and according to its specific features” (Hysa v. Albania, § 66). This entails that it is insufficient merely to invoke a “risk of absconding” or a “risk of interference with evidence.” The decision must clearly explain: Which factual elements substantiate the alleged risk? Why is that risk real in the particular case? Why can it not be neutralized by less restrictive measures?

Secondly, the Court makes explicit that “reasonable suspicion” constitutes merely the entry threshold for detention and not a perpetual justification. In Gëllçi v. Albania, it is stated in unequivocal terms that “... the persistence of a reasonable suspicion is a sine qua non condition for the validity of detention, but after a certain lapse of time it no longer suffices” (§ 19). The message is direct: detention cannot continue by inertia. As time elapses, the State must demonstrate other relevant and sufficient reasons, updated and connected to the specific phase and concrete needs of the proceedings.

Thirdly, the Court censures the practice of justifying the prolongation of detention by means of general formulae. In Gëllçi v. Albania, the domestic courts “... did not specify the concrete evidence that needed to be obtained, nor did they explain why such evidence could not have been secured at an earlier stage of the investigation” (§ 23). The same judgment emphasizes that the risk of manipulation of evidence cannot be presumed automatically. The authorities “... did not address the applicant’s arguments that the suspicion against him was based exclusively on documents which had already been seized by the prosecution and that therefore there was no risk that he would manipulate witnesses or other evidence.”

Fourthly and most pointedly for Albanian judicial practice, the Court criticizes the formalistic treatment of alternative measures. In Hysa v. Albania, it observed that “... apart from a formal statement … the domestic decisions did not genuinely indicate what weight was given to alternative measures” (§ 76). In Gëllçi v. Albania, this finding is reiterated in equally direct language: “It does not appear that the courts properly assessed any alternative preventive measures beyond a purely formal statement …” (§ 25). These passages constitute the compass for any reform of practice: a decision ordering detention that mentions alternatives merely as a standard clause, without genuine analysis, is indefensible under the Convention.

Within this framework, the Strasbourg standard is unequivocal: (i) The reasonableness of pre-trial detention must be assessed not abstractly, but on the basis of concrete facts. (ii) After a certain lapse of time, reasonable suspicion alone is insufficient. (iii) Continued detention cannot be justified by general references to “risks” without identifying specific investigative acts or evidence yet to be obtained and explaining why these were not secured earlier. (iv) Alternatives to detention must not remain a formal declaration. These requirements impose a clear obligation upon Albanian investigative and judicial authorities, as part of their responsibility to safeguard personal liberty and ensure compliance with the standards of the Council of Europe.

In straightforward terms, any decision ordering or extending pre-trial detention must answer four essential questions: What concrete risk exists?; On which factual elements is it based?; Why is it current and not merely hypothetical?; Why can it not be neutralized by less restrictive measures?

5.      The causes of high levels of pre-trial detention: a systemic chain, not the fault of a single institution

The phenomenon of elevated pre-trial detention rates cannot be attributed to a single institutional actor. It is a systemic issue—a chain in which each link exerts influence upon the next.

First, criminal policy has displayed a tendency toward increased severity and the expansion of the scope of criminal offences, correspondingly encouraging requests for more restrictive security measures.

Secondly, delays in investigation and adjudication prolong pre-trial detention and transform what should remain an exceptional measure into a de facto ordinary condition.

Thirdly, public pressure and apprehension regarding potential consequences such as absconding, recidivism, or adverse media reaction may create an inclination for decision-making to be guided by the desire to avoid criticism or public accountability, rather than by an objective assessment of the evidence and a rigorous application of the standards of individualization and proportionality.

Fourthly, the absence of a functional infrastructure for alternative measures effective monitoring, control mechanisms, and inter-institutional coordination renders pre-trial detention the “easier solution” in practical terms, even where it is not legally necessary.

6.      Solutions: clear responsibilities for the legislator, the law enforcement, the prosecution, and the courts

Public safety is not safeguarded by transforming pre-trial detention into routine practice. It is safeguarded by employing detention only where it is genuinely necessary, supported by reasoning capable of judicial scrutiny. The solution lies not in rhetoric, but in the disciplined alignment of practice across each institutional link of the criminal justice chain.

The legislator must act with prudence. The continuous escalation of penalties and the criminalization of minor conduct increase systemic congestion throughout the criminal process and encourage the near-automatic resort to detention as a first response. At the same time, the legal framework and the operational instruments governing alternative measures must be substantively strengthened not merely “on paper” through effective monitoring and enforcement mechanisms, so as to ensure that the prosecution and the courts can reasonably rely on their proper and effective functioning.

Finally, the legislator must support, through concrete policies and adequate resources, the reduction of procedural delays that prolong pre-trial detention, with a view to expediting adjudication and alleviating the structural backlog that gives rise to protracted proceedings.

The judicial police must enhance the evidentiary foundation underlying assertions of “risk of absconding,” “risk of interference with evidence,” and/or “risk of reoffending,” and must avoid reliance upon standardized formulae. Such allegations must be grounded in specific factual data for example, conduct indicative of a flight risk, attempts to contact witnesses, concrete circumstances facilitating departure, or identifiable indicia of potential influence over evidence.

The prosecution must submit applications for security measures accompanied by individualized reasoning, anchored in concrete facts rather than formulaic language. Each request must address, in a structured and case-specific manner: (i) Which facts demonstrate the alleged risk?(ii) Why is the risk current and not hypothetical?(iii) Why are alternative measures insufficient?(iv) Why is pre-trial detention proportionate in the circumstances? This approach does not create a novel standard; it gives effect to the existing requirements of individualization and proportionality as articulated by the European Court of Human Rights.

The courts bear the responsibility of acting as a “constitutional and Convention filter” in real time. They must exercise rigorous scrutiny: in the absence of individualized reasoning, concrete factual substantiation, and a genuine examination of alternatives, detention cannot become the predetermined outcome. The Hysa standard prohibits abstract assessment (§ 66) while the Gëllçi standard prohibits the continuation of detention based solely upon “reasonable suspicion” without additional relevant and sufficient reasons (§ 19). Both judgments prohibit the formalistic dismissal of alternative measures (Hysa, § 76; Gëllçi, § 25). This means that the decision must be intelligible as a comprehensive and coherent line of reasoning, constructed upon the facts of the case, a concrete assessment of the alleged risk, the demonstrated necessity of the measure, the application of the proportionality test, and a reasoned explanation as to why alternative measures are insufficient.

7.      Conclusion: pre-trial detention as a barometer of personal liberty and the European standard

Pre-trial detention constitutes a clear indicator of the protection afforded to personal liberty and of the quality of judicial oversight. When pre- trial detention becomes the rule, liberty as a principle is weakened, the presumption of innocence is diminished, and the risk of constitutional and Convention violations correspondingly increases. Conversely, when pre-trial detention is restored to its proper nature as a necessary, individualized, proportionate measure grounded in evidence justice strengthens its legitimacy and the State consolidates the European standard to which it has committed itself.

In a context where it is reported that 57 % of the prison population consists of persons held in pre-trial detention, the response cannot lie in politicization or in the oversimplification of the debate. What is required is professional composure and disciplined application of the law. The Convention is unequivocal: it does not accept abstract risks; it does not permit alternative measures to be treated as a mere formality; and it does not tolerate the prolongation of detention “by inertia.”

Pre-trial detention is not a symbol of institutional strength; it is a measure of legal standard. When turned into routine, the justice system forfeits precisely what it is meant to safeguard: liberty as a governing principle and reasoned decision-making as its guarantee. This is a daily professional test, to decide on the basis of facts rather than assumptions; on the basis of genuine alternatives rather than measures that exist only “on paper”; and on the basis of reviewable, substantiated reasoning rather than inertia. Only in this manner can public safety be protected without undermining the very foundation of the rule of law.

*President of the High Court, (Former Judge of the Constitutional Court; Professor of Law)