The principle of proportionality means that a sentence or sentence must have a limitation based on the seriousness of the conduct that has been carried out and on the relevance of the legal right that protects the criminal figure.
In other words, the principle of proportionality means that, the more serious the crime and / or the more important what the law is protecting, the greater the penalty imposed should be.
This principle of proportionality must be present in the acts of investigation of the crime, in the trials, and must be reflected in the sentence. Proportionality, therefore, must occur throughout the criminal process, not just at the end.
The principle of proportionality is a general principle of the legal system that should inspire the development of laws and their interpretation and application by the courts.
What are the characteristics that make up the principle of proportionality?
The main characteristics of the principle of proportionality are the following:
- Any act that limits fundamental rights must be under the principle of proportionality. This means that these limitations cannot be arbitrary. They must be established by law, not by regulations or decrees, but by laws approved by the Legislative Power and that comply with the principle of legality.
- Any resolution that limits fundamental rights must be sufficiently motivated. In the sentences there must be that judgment of necessity, that is, that judgment where the judge has explained that the sanction is proportional, that it is necessary.
- Measures that limit fundamental rights must be necessary to achieve the end of the investigation of the crime. If they are necessary, then the principle of proportionality is being complied with.
- Last option: This means that the measure that restricts or infringes on fundamental rights must be the only way to achieve the objective. There should be no other way that does not infringe these rights that achieves the objective. If this is fulfilled, it will be complying with the principle of proportionality.
- The logical thing is that, the greater the severity of the attack, the greater the penalty. For example, higher penalties are established for malicious crimes than for reckless crimes.
There are two types of proportionality principles:
- Strictly speaking: This principle works in relation to criminal conduct with its legal consequences, that is, with penalties. Thus, penalties have to be proportionate. How is that done? It must be attended to at the time of the threat and at the time of the application or judicial determination of the penalty.
- In its judicial application: This moment occurs when the judge ends the trial, the person is guilty and has to assess a series of guidelines. Penalties are set according to a range of possibilities: deprivation of liberty for a period of years or fines. Then:
- Within these limits, the judges may apply the penalty they deem appropriate within the rules that the Penal Code itself establishes, depending on the circumstances that determine a greater or lesser harm to the legal good or the guilt of the subject.
- Based on all these criteria, it is time for the judicial individualization of the sentence, that is, for the application of the so-called criminal arithmetic, which is inspired by the principle of proportionality.
- However, the judge, after following all those rules, always has a margin of discretion. You have to apply the law proportionally to the objective and subjective circumstances of the crime committed.