Provisional Prison: New Supreme Court Criteria for 2026

The start of the judicial year 2026 confirms the guaranteeist trend: provisional prison must truly be the last resort. The Supreme Court has tightened requirements to appreciate 'flight risk' in a digital era where telematic control is ubiquitous. For the defense, this consolidates a clear framework: sending to prison a person who is still presumed innocent, before any trial, demands an exceptional justification, and that justification must be kept under review as the case evolves.

Grounds and Requirements

Provisional prison is an exceptional measure, not an advance punishment. It requires solid indications that an offense was committed and that the person under investigation took part in it, plus a constitutionally legitimate aim: preventing flight, preventing the destruction of evidence or preventing criminal reiteration. It can only be ordered by a judge, at the request of the prosecution, after a hearing at which the defense is heard, and the decision must give specific reasons explaining why no less burdensome measure is sufficient in that particular case. Generic references to the seriousness of the charges are no longer enough: the risk invoked must be real, current and supported by the circumstances of the individual concerned. The defense should also scrutinize the proportionality of the measure: the court must weigh the seriousness of the facts, the penalty at stake and the personal circumstances of the person under investigation, and must choose the least restrictive option capable of securing the proceedings.

The Technological Alternative

Investigating judges are now obliged to justify why a geolocation bracelet or biometric passport withdrawal is not sufficient before sending someone to prison. Our defense strategy in macro-economic cases focuses on arguing that the freezing of crypto and banking assets combined with electronic surveillance neutralize any risk of criminal reiteration, as an alternative to provisional prison. The same logic applies to flight risk: where a person's whereabouts can be monitored permanently and their travel documents withdrawn, the classic argument that only prison guarantees their presence at trial loses much of its force. The defense submission should therefore propose a concrete package of alternatives — periodic court appearances, electronic monitoring, travel restrictions — rather than simply opposing the prosecution's request in the abstract.

Risk of Destruction of Cloud Evidence

The only ground that continues to strongly justify imprisonment is the risk of destroying digital evidence (remote server wiping). However, once the forensic image of devices is secured, maintaining prison loses its constitutional legitimacy. This gives the defense a practical lever: pressing for the early forensic preservation of servers, devices and accounts removes the factual basis of the measure. Once the evidence is technically secured and can no longer be altered by the person under investigation, continued detention cannot be justified on this ground, and its immediate review should be requested.

Review and Appeals

Provisional prison is never final. The defense may request release whenever circumstances change — assets frozen, forensic images completed, personal and professional roots accredited — and the decisions ordering or maintaining the measure can be appealed. In practice, the initial hearing is decisive: arriving with documentary evidence of family, work and community ties, together with a realistic proposal of telematic control, is the most effective way to keep a client out of pre-trial detention while the proceedings continue. And if the measure is nonetheless imposed, each new procedural milestone — the securing of evidence, the closing of the investigation — is an opportunity to argue that its constitutional justification has disappeared. These requests are decided after hearing the parties, so each application is also a chance to update the court on the person's situation and on the progress of the investigation.