Principle of proportionality as a threat to criminal-law-related fundamental rights
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/20322844231158323 |
| Author | Emil Śliwiński |
| Date | 01 September 2023 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2023, Vol. 14(3) 327–344
© The Author(s) 2023
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DOI: 10.1177/20322844231158323
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Principle of proportionality as
a threat to criminal-law-related
fundamental rights
Emil ´
Sliwi ´
nski
Doctoral School of Social Sciences, University of Warsaw, Poland
Abstract
The article argues that the principle of proportionality—a legal tool widely used for balancing competing
rights—can be perceived as a threat to criminal-law-related fundamental rights, i.e. mainly the nullum
crimen sine lege and ne bis in idem principles. A case study is carried out, of A and B v Norway, Tsonyo
Tsonev v Bulgaria (no 4) and Saquetti Iglesias v Spain ECtHR judgments, as well as P16-2021-001 ECtHR
advisory opinion and Menci CJEU ruling, heavily relying on the rule-principle distinction (as presented by
Ronald Dworkin and Robert Alexy). The conclusion stemming from the study can be described as
follows: in some instances ‘inserting’proportionality into the content of fundamental rights might be
inappropriate, i.e. dogmatically flawed and detrimental to the effective protection of these rights.
Keywords
Proportionality, balancing, limitation, ne bis in idem,nullum crimen sine lege,A and B v Norway,Saquetti
Iglesias v Spain,Menci, P16-2021-001 advisory opinion, rule-principle distinction
Introduction
When one thinks of proportionality in the context of criminal law, the most obvious context in which
it appears is proportionality of a sentence to the gravity of the offence. This aspect is discussed
among scholars,
1
but also (directly or indirectly) embodied in modern constitutions (for example,
Corresponding author:
Emil ´
Sliwi´
nski, Doctoral School of Social Sciences, University of Warsaw, Krakowskie Przedmiescie 26/28, Warszawa 00-
312, Poland.
Email: e.sliwinski@uw.edu.pl
1. For general discussion see, for example, Andrew Ashworth and Andrew von Hirsch, Proportionate Sentencing:
Exploring the Principles (Oxford University Press 2005); Robin A. Duff, Punishment, Communication and Community
(Oxford University Press 2003) 132—143.
the U.S.
2
or French
3
). In fundamental laws enacted after World War II, this rule is usually not explicitly
mentioned,
4
but it seems that it forms part of the common legacy of the Western World, as it is reflected
in Article 49(3) of the Charter of the Fundamental Rights of the European Union (‘CFR’). The other,
more general aspect of proportionality in criminal law encompasses the scope of criminalisation; there is
no denying that states sometimes penalise behaviour that should not be prohibited.
5
Nevertheless, this paper will mainly focus on a broader context of proportionality in criminal law.
Proportionality may be perceived as a legal tool used for balancing competing rights and interests in
democratic society, and consists of the following elements (phases): legitimate goals stage, suit-
ability stage, necessity stage and balancing stage (proportionality in the strict sense).
6
The finest
example of application of the principle of proportionality is the need to balance the right to privacy
of an individual (Article 8 ECHR) against the right of the press to impart information regarding this
person (Article 10 ECHR).
7
Apart from purely horizontal aspect of balancing, it might be necessary
to strike a fair balance between a fundamental right of an individual and the needs of politic al
community as a whole, irrespective of whether there is a real threat to any particular person. For
example, Articles 8—11 ECHR contain proportionality clauses, allowing the Member-States to the
Convention to limit human rights on the basis of protection of (public) health.
8
Some fundamental rights provide individuals with guarantees in the context of criminal law and
49(2—3) CFR), the right to appeal in criminal cases (Article 2 of Protocol No 7) and the non bis in
idem principle (Article 4 of Protocol No 7, Article 50 CFR
)
.
9
It seems that the underlying as-
sumption of these guarantees is that an interference with rights and freedoms of individuals by
means of criminal law is deeper than by means of other legislative instruments (like civil or
administrative law).
2. The Eighth Amendment to the U.S. Constitution explicitly prohibits ‘excessive fines’, but the standard of proportionality
applies to other penalties as well (see Solem v Helm, 463 U.S. 277).
3. Article 8 of the French Declaration of the Rights of Man and of the Citizen stipulates that punishments should be ‘strictly
and obviously necessary’.
4. In the context of the European Convention on Human Rights (‘ECHR’), disproportionate penalties can be assessed from
the standpoint of Article 3 ECHR (see Murray v the Netherlands [GC] 10511/10 (ECtHR, 26 April 2016) para 99), Article
8—11 ECHR (see Murat Vuralv Turkey9540/07 (ECtHR, 21 October 2014) paras 57—68), Article 1 of Protocol No 1
(see Sadocha v Ukraine 77508/11 (ECtHR, 11July 2019) paras 27—37), Article 2 of Protocol No 4 (see mutatis mutandis
Bolat v Russia 14139/03 (ECtHR, 5 October 2006) paras 64—70) and—at least to some extent—Article 5 ECHR (see
Saadi v the United Kingdom [GC] 13229/03 (ECtHR, 29 January 2008) para 71 and James, Wells and Lee v the United
Kingdom 25519/09 et al (ECtHR, 18 September 2012) para 195).
5. See Dudgeon v the United Kingdom 7525/76 (ECtHR, 22 October 1981), para 61. In this judgment legislation stipulating
punishment for homosexual consensual intercourse of adults was considered disproportionate in the light of Article 8
ECHR. This aspect of proportionality in criminal law is brilliantly outlined in Douglas Husak, Overcriminalization: The
Limits of the Criminal Law (Oxford University Press 2008).
6. For general, yet in-depth discussion see Kai M¨
oller, The Global Model of Constitutional Rights (Oxford University Press
2012) 178—205 or Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University
Press 2012) 243—370.
7. See, for instance, Von Hannover v Germany (No 2) [GC] 40660/08 et al (ECtHR, 7 February 2012) para 100.
8. Precisely for this reason compulsory vaccination is allowed under ECHR (see Va v ˇriˇcka and Others v the Czech Republic
[GC] 47621/13 et al (ECtHR, 8 April 2021) para 272).
9. For general discussion concerning ne bis in idem principle see Carl-Friedrich Stuckenberg ‘Double jeopardy and Ne bis in
Idem in Common Law and Civil Law Jurisdictions’in Darryl Brown, Jenia Turner, Bettina Weisser (eds.) The Oxford
Handbook of Criminal Process (Oxford University Press 2019) 457—475 and Stefan Trechsel, Human Rights in
Criminal Proceedings (Oxford University Press 2006) 381—402. This principle is frequently incorporated to the
domestic law (e.g. article 6 of the French Code of Criminal Proceedings).
328 New Journal of European Criminal Law 14(3)
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