Proportionality: A Principle to be Re-evaluated in Albanian Criminal Law

Abstract

The numerous amendments to the Albanian Criminal Code introduced over the years have continuously toughened penalties for criminal offences, raising doubts about the legislator's adherence to the proportionality principle. This issue has aroused an interest in treating proportionality as a fundamental principle of criminal law, particularly in guiding the legislator in determining appropriate punishments for criminal offences. Doctrine and jurisprudence constantly emphasize that disproportional sanctions, on the one hand, affect the re-educational and re-socialization processes, and on the other hand, they affect the discretion of the judge who, during the process of individualization of punishment, must adapt the penalty to the social danger of the criminal offence. The Albanian Constitutional Court's jurisprudence has addressed proportionality issues in a significant judgment that opened the possibility of control over the legislator's political discretion. In this regard, the Albanian Constitutional Court considered some provisions of the Criminal Code in breach of Article 17 of the Constitution because the punishment provided for the criminal offence was disproportionate, affecting in this way the re-educational process of the perpetrator. On this occasion, the Court stated that the penalty is determined by weighing the social danger of the crime and the perpetrator's level of culpability. Furthermore, the Court considered that since criminal punishment restricts fundamental rights, it should be limited to those actions or omissions that, according to the principle of proportionality, are comparable in importance to the values they safeguard. 

Received: 6 May 2022 / Accepted: 29 June 2022 / Published: 5 July 2022