Between Punishment and Prevention: The Legal Nature of Personal Security Measures in Contemporary Criminal Law

Abstract The distinction between punishment and security measures is traditionally grounded in different legal rationales: punishment responds to culpable past conduct, whereas security measures are primarily directed toward dangerousness and the prevention of future harm. In contemporary criminal law, however, this distinction has become increasingly difficult to maintain. Punishment itself incorporates preventive, rehabilitative, and incapacitate purposes, while measures formally classified as preventive may impose restrictions on liberty and autonomy comparable to punitive sanctions. This article critically examines whether the traditional distinction between punishment and personal security measures remains legally sustainable and identifies the criteria that should determine when a preventive measure acquires a punitive character in substance. The analysis combines doctrinal and comparative legal reasoning with European human-rights standards and applies the resulting framework to Albanian criminal law. It argues that neither formal classification nor preventive purpose is sufficient to establish the legal nature of a measure. Instead, classification should take account of its legal basis and trigger, its relationship to culpability and dangerousness, its severity and practical effects, its duration and review mechanisms, and the procedural safeguards governing its application. The article concludes that security measures retain a legitimate preventive function, but restrictions comparable to punishment require correspondingly robust rule-of-law and human-rights guarantees.