Substitution measures often inadequate in cases of flight risk

The Federal Supreme Court has ruled that electronic monitoring (EM) cannot replace pre-trial detention when there is a serious flight risk. In case 7B_40/2026 (30 January 2026, Canton of Zurich), the court upheld the detention of a suspect, rejecting his proposal to impose electronic monitoring as a substitution measure.

The ruling matters because EM can be invoked by defendants as a humane and cost-effective alternative to custody. The Federal Supreme Court was skeptical, however: within the Schengen area, where border controls are inconsistent, neither surrender of travel documents, reporting obligations, nor EM can reliably prevent a determined person from absconding. Detention therefore remains proportionate.

From a defense perspective, it is regrettable that, due to the restrictive interpretation of this alternative measure, accused persons against whom only risk of flight is invoked as a ground for detention will likely continue to benefit from this alternative measure only in exceptional cases during criminal proceedings. It is further questionable whether this blanket assessment of electronic monitoring satisfies the requirement of a careful proportionality analysis in each individual case.