Three legal theses against the actions of Sokol Sadushi

2026-04-09 10:55:00, Aktualitet REDAKSIONALE

In examining the issues raised before the Joint Panels regarding the interpretation of Articles 228 and 230 of the Code of Criminal Procedure and their relationship with Article 5 § 3 of the European Convention on Human Rights, an approach must be avoided that, under the pretext of strengthening guarantees, risks distorting the very logic of judicial decision-making and shifting the focus from real analysis towards procedural formalism.

Firstly, the thesis according to which the court must, in every case, analyze in detail the alternative measures as a necessary premise for ordering “prison arrest”, does not find direct support in the text of the law.

Articles 228 and 230 of the Code of Criminal Procedure do not require an inventory-type analysis of every possible measure, but a concrete assessment of the necessity and appropriateness of the measure sought. Transforming this obligation into a detailed and mandatory analysis of every alternative constitutes an interpretative addition that does not stem from the law, but from an excessively formalistic approach.

The court is not called upon to conduct a theoretical exercise on all possible security measures, but to decide on a specific request submitted by the prosecution. If the analysis of the specific circumstances shows that only the measure of “prison arrest” is capable of neutralizing the risk, then the conclusion on the inadequacy of the alternatives is included in this finding itself and there is no need for a separate justification for each of them. To demand the opposite means to replace the substantive analysis with a formal ritual of justification.

Sadducee Movement/Prejudiced Decision of the United Colleges
April 9, 10:45

Secondly, the attempt to exclude the nature of the criminal offense as an assessment element in determining risk constitutes another deviation from the logic of the law.

It is indisputable that risk cannot be automatically and abstractly presumed solely on the basis of the seriousness of the offence, but it is equally wrong to claim that the nature of the offence is an irrelevant or useless element in this assessment.

The nature of the offence, the manner in which it was committed and the severity of the sanction are objective elements that directly affect the assessment of risk and cannot be excluded from the analysis without making it artificially truncated. The problem lies not in the use of these elements, but in their use exclusively and without reference to the specific circumstances of the case.

Detention as a concern for Sadushi/ Justice has not lacked standards
April 9, 10:51

Thirdly, the thesis according to which the inappropriateness of detention in prison must be proven by the defendant constitutes an unacceptable reversal of the burden of proof and contradicts the fundamental principles of criminal procedure.

In an accusatory system, it is the prosecution that must justify any restriction of personal freedom, while the defendant does not and cannot have the obligation to prove the absence of conditions for imposing the measure.

Any interpretation that implies the opposite not only violates the presumption of innocence, but risks turning the security measure into a mechanism that is applied in the absence of sufficient evidence, simply due to the defendant's inability to produce evidence to the contrary.

In this context, the problems identified in judicial practice – the use of stereotypical formulas, the lack of concrete analysis, and the automatism in determining pre-trial detention – do not stem from an erroneous normative or interpretative standard, but from a deficient implementation of the existing law.

Consequently, the attempt to address these problems through a reformulation of unifying practice risks treating the symptom rather than the cause, adding formal requirements without guaranteeing a real change in the quality of decision-making.

In conclusion, the interpretation of articles 228 and 230 of the Criminal Procedure Code should remain focused on the concrete analysis of the risk and the real necessity of the requested measure, without shifting towards a formalism that does not add substantial guarantees.

Any deviation from this approach, whether in the form of an obligation for detailed analysis of alternatives or in the form of reversing the burden of proof, risks violating the balance between the effectiveness of criminal proceedings and the protection of personal freedom./ CNA