Una mirada al principio de proporcionalidad desde la jurisprudencia alemana

Abstract

This article describes the application of the principle of proportionality in Germany, through the study of jurisprudence of that country. It is sought to show that proportionality is a tool through which the judge must weigh the fundamental rights of the accused and the victims, and that this is essential to impose a sanction. In addition, to present the exhaustive evaluation, which the judge must do, to determine the proportionality of the measure to be imposed on an imputable one; performing a control of the guarantees and rights that the State 3

must ensure, seeking as a main goal, the safety of the community in general, and especially of the victims. Likewise, by means of the judgments analyzed, it is sought to demonstrate that proportionality in Germany is directly related to the duration of the accommodation, since being an excessive measure can break the rights of the convicted, so they exist in the German jurisprudence formal requirements, which the judge must meet to order the measure. Finally, show that in this country the judge must make an individual study of the person, where in this article, the personal, and social factors that justice operators must assess are studied. This demonstrates that the security measure contemplated in Germany fulfills a preventive purpose, since it seeks to guarantee the safety of society, and also provide a therapeutic treatment for the convicted.