Arrest in flagrante delicto as a measure restricting the Right to Freedom

• Author: Majlinda Andrea
• Position: Judge at the Supreme Court of the Republic of Albania
• Pages: 57-66

57

IIPCCL Publishing, Tirana-Albania

Academic Journal of Business, Administration, Law and Social Sciences Vol. 1 No. 3

November 2015

ISSN 2410-3918

Acces online at www.iipccl.org

Arrest in flagrante delicto

as a measure restricting the Right to Freedom

PhD (C.) Majlinda Andrea

Judge at the Supreme Court of the Republic of Albania

Abstract

Arrest in flagrante delicto is one of the cases in which the international and national legal

framework allows the restriction of the right to freedom. Currently, the individual and his

fundamental rights are in the focus of human society. Some of them are absolute and some

others have a relative character. The right to freedom, notwithstanding its importance, is a

right of relative character but with cases of its restriction exhaustively defined.

The protection of this right is extended both in horizontal perspective versus the actions of other

persons, providing a legal-criminal defense and in vertical context, in the face of repressive power of

the state, which adopted the most significant position in the case of someone’s arrest or detention. The

latter constitute an indicator of an incomparable relation between the force of state power and a person’s

vulnerability.

The exact meaning of arrest in flagrante delicto and its application only in the conditions and

criteria set out by the criminal procedural legislation prevents arbitrary restriction of the

right to freedom. A key importance in the analysis of this institute is attached to ECtHR

jurisprudence that is consolidated and detailed in addressing the right to freedom. The respect

and application of standards affirmed by this court on part of the state institutions directly

affects the consolidation of rule of law.

The criminal procedural legislation has consented to the general principle according to which

“only the judge has the power to apply a security measure restricting personal liberty, a measure

that has continuous effects over time, although such measures have a specific maximum

duration”. According to this approach, the arrest in flagrante delicto is qualified due to its

character, as a temporary measure applied in situations of emergency when the procedure for

security measure cannot be effectively applied. As already known, it is linked with the power

of judicial police to take, in extraordinary, emergent, indispensable and compulsory cases

provided by law, a provisional restrictive measure against an individual’s freedom, without

prejudicing the need for a guarantee by the judicial authority.

Keywords: arrest, fundamental human rights, freedom, flagrante, jurisprudence.

Introduction

Individual freedom is one of the fundamental human rights of international and constitutional

legal character. Safeguarding of this right is a prerequisite for the full exercise of a number of

other laws, such as the freedom of assembly and association, family life, the right to freedom

of movement. Deprivation of such a right brings about physical, psychic and financial

consequences influencing the life of a person and of his family.

The concepts of “freedom” and “security” refer only to individual physical freedom and security.

Accordingly, the freedom of someone is freedom from apprehension or arrest while personal

security means the protection from arbitrary intervention within the sphere of such liberty (