Fundamental rights and punishment: Is there an EU perspective?

Published date01 March 2019
Date01 March 2019
Subject MatterSpecial Issue: Articles
Special Issue: Article
Fundamental rights and
punishment: Is there an EU
Anabela Miranda Rodrigues
Patio Universidade, Portugal
Taking fundamental rights into account means a limitation of repression, as an instance of the
principle of proportionality or principle of necessity, of criminal intervention. The need to design
European Union (EU) criminal law in compliance with the principle of proportionality is especially
clear in the post-Lisbon stage, in view of the strengthening and expansion of the EU’s competence
to legislate on criminal matters, enshrined in Article 83 of the Treaty on the Functioning of the EU.
This article aims at analysing the terms in which European criminal law respects the aforemen-
tioned principle of proportionality of punishment and translates an EU perspective in the field of
criminal sanctions.
Fundamental rights, criminal sanctions, proportionality, imprisonment, life sentence, abstract
gravity of sanctions
1. The relationship between fundamental rights and punishment is evident, albeit paradoxical.
fact, the specific feature of criminal law is the application of criminal sanctions, which means a
potential or actual limitation of fundamental rights, namely, freedom and property. However, from
Corresponding author:
Anabela Miranda Rodrigues, Faculty of Law, Faculdade de Direito, Patio Universidade, Coimbra 3045, Portugal.
1. This paradox has been abundantly addressed by the literature: see, for example, M. Delmas-Marty, Le paradoxe penal,
in Libert´
es et droits fondamentaux, sous la direction de M Delmas Marty et C Lucas De Leyssac (Paris: Seuil, 1996),
p. 368, who refers to criminal law as a ‘protection’ and a ‘threat’ to fundamental freedoms and rights.
New Journal of European Criminal Law
2019, Vol. 10(1) 17–27
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/2032284419837377

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