The application of proportionality in criminal law: Spanish constitutional jurisprudence and a comparative view
Abstract
The principle of proportionality appears to be consolidated both in doctrine and in practice in our context. Although its recognition – except in the youngest constitutions – is not usually explicit in the constitutional text, the constitutional courts have recognized its status as a constitutional principle. However, as it is an abstract institution and not explicitly developed in the text of the law, its contours are not clear. Therefore, it is of interest to develop an analysis of the state of the art of the principle of criminal proportionality in Spain, trying to assess what level of protection it guarantees, what degree of disproportionality the principle requires to act on a criminal measure, whether the variants of proportionality of criminal intervention and proportionality of punishment are clearly distinguished, whether in practice legislators and judges are subject to the principle and what elements are compared to determine that the measure is proportionate. For this purpose, the study of comparative law is of interest here, so the study of constitutional jurisprudence in Spain will be complemented with an analysis of the situation of the principle in Italy – the source of criminal constitutionalism and which responds to the civil law tradition –, and in the USA – origin of retributivism and where the first developments of the principle were found, which responds to a common law tradition –.
Received: 25.02.2025
Accepted: 10.06.2025
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Last update: 08/02/2022
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