Proporcionalidad, pena y legalidad

Abstract

The main objective of the research which results are presented here consisted of analyzing the legal basis and implications that the principle of proportionality is applied in the judicial imposition of penalty has. The methodology used required attesting the next steps: It started from the doctoral thesis «The principle of proportionality and the criminal law» by Lopera Mesa (2006), which explores the possibility of using this principle in the abstract constitutional control of criminal laws. To determine the constitutional and legal basis, which enables the use of the principle of proportionality to the concrete case in Colombia, documentary sources were used; doctrine, rules and jurisprudence. Some cases were developed to assess the proportionality in sentencing, establishing in consequence the implications and limitations of such a task. The main conclusion is: judges have the constitutional and legal obligation (arts. 3, 59 and 13 CP) to move off from laws related to the penalty when they originate a disproportionate effect on fundamental rights. This reaffirms the principle of legality, in its simple and strict sense, rather than attempting against it. Furthermore, the regulation (art. 6 CP) of the analogy in bonam partem supports this idea. [PUBLICATION ABSTRACT]