The United Chambers of the Supreme Court decided to partially change the unifying practice for the assignment of security measures. The panel decided that the Court has the obligation to justify why the alternative measures are inappropriate to be imposed. Regarding the dangerousness of the person, the United Colleges, the Supreme Court shared the position that the courts must analyze the personality of the person. Likewise, the dangerousness of the person can be derived from the dangerousness of the offense or the measure of punishment.
The United Courts make clear that the most severe limitation of personal liberty requires a realistic consideration of alternatives, individualized reasoning, and concrete prosecutorial responsibility to justify the need for incarceration.
The united panels of the Supreme Court clarify that the prosecution has the burden of proof to argue why the measure of prison arrest should be imposed. Further in the decision, it is reasoned that the court must verify the circumstances, but the court cannot be influenced by the positive evidence brought by the suspected author. In the case of Bektash Zeneli, the court rejected the appeal, while upholding the decision of the Court of Appeal that changed the measure from ‘prison arrest’ to ‘home arrest’.
DECISION
The United Colleges of the Supreme Court, composed of 16 judges, have made a decision on the standards that should guide the courts in setting and following the measure of personal security “arrest in prison”.
The case was examined following the initiative of the President of the Supreme Court, who, exercising the constitutional and legal role of the Supreme Court to guarantee a uniform, stable and predictable judicial practice, set in motion the United Colleges to give answers to the concerns evidenced in the judicial practice regarding the way in which the measure “arrest in prison” was requested, reasoned, controlled and implemented, as well as to orient this practice towards the constitutional standards and convention for the protection of personal freedom.
The United Colleges assessed that the judicial practice required clarification, clarification, standardization, change and further development in the way of understanding and applying the measure “arrest in prison”. Through this decision, the Colleges guide the courts towards the implementation of standards in accordance with the Code of Criminal Procedure, the Constitution and the jurisprudence of the European Court of Human Rights, reiterating that the most severe limitation of personal freedom cannot be based on general formulations, but requires concrete, individualized and controllable reasoning.
The United Colleges defined three main rules:
First, the previous wording, according to which, when the security measure “arrest in prison” is requested or imposed, the court does not have the obligation to really analyze the alternative measures and it is enough to justify that the chosen measure is suitable for the specific case, is not in accordance with articles 228-230 and 245/1, letter “ç”, of the Code of Criminal Procedure, as well as with article 5 § 3 of the European Convention on Human Rights. For this reason, the court has the obligation to really examine the least restrictive measures of personal freedom and to explicitly justify why they are not sufficient in the specific case. This reasoning must be individualized, based on facts and directly related to the concrete circumstances of the case.
Secondly, the measure “arrest in prison” is exceptional in nature and can only be imposed when other measures are inappropriate. The dangerousness of the offense and the author cannot be derived solely or mainly from the nature of the criminal offense or from the margin of punishment, but must be based on a concrete assessment of the circumstances of the case, the manner of committing the offense, the consequences, personality, behavior and personal and family data of the person against whom the measure is requested.
Thirdly, the burden of justifying the need for the appointment and continuation of the “prison arrest” measure belongs to the prosecution. The court has the obligation to verify and justify this need at every stage of the proceedings. Its decision-making cannot be conditioned by the presentation or not of “positive evidence” by the defendant.
This decision is of particular importance for the judicial system and for the protection of fundamental rights, as it clarifies the conditions, limits and justification of the “prison arrest” measure, in accordance with the Code of Criminal Procedure, the Constitution and the standards of the ECHR. In this way, the United Colleges strengthen the stability, uniformity and predictability of the judicial practice, putting in the center the guarantees of personal freedom and the need for a real, concrete and proportional judicial control.
In the specific case, the United Colleges upheld the decision of the Court of Appeal of General Jurisdiction, assessing that the prosecution’s recourse did not find support in the law.
The full and reasoned decision of the United Colleges will be made available within the legal deadline and will be sent for publication in the Official Gazette.
