Aurélia Grignon, a partner at the firm, spoke in Marseille at a training session organized by the Institut de Défense Pénale (IDP) titled “Fundamental Freedoms: The Never-Ending Struggle of Lawyers,” alongside Brice Grazzini, Yann Le Bras, David de Pas, Bertrand Périer, and Amélie Morineau.
Speaking on the topic of the “case law theory of proportionality review,” Aurélia Grignon began by outlining the revolution brought about over the past decade in this area by the Court of Cassation. Following the lead of the European Court of Human Rights (Axel Springer v. Germany, 2012; Eon v. France, 2013), the Court of Cassation no longer limits itself to an abstract review of whether laws comply with fundamental rights. It now verifies, in light of the circumstances of the case, that the application of the law does not constitute a disproportionate infringement of a fundamental freedom. In criminal matters, this review has led to the overturning of convictions for fraud, theft, vandalism, indecent exposure, or obstruction of traffic, in the name of freedom of expression (Article 10 of the Convention). The cases involving those who “tore down presidential portraits” and the Femen activists are the best-known examples of this. This new defense succeeds where the state of necessity failed.
She then took stock of this first decade of case law. The review always follows a two-part process: Is a fundamental freedom being infringed, and is that infringement disproportionate? When freedom of expression is at issue, the Court further requires a direct link between the conduct in question and a message of public interest. It assesses proportionality based on criteria that vary depending on the offense: the material and symbolic value of the property and the reversibility of the damage in cases of theft; and the extent of the disruptions and the conduct of both protesters and authorities in cases of obstruction of traffic. These criteria allow for some disparities, but they provide a valuable framework for analysis. Like the QPC or the preliminary ruling before it, the proportionality review is a defense tool that attorneys must learn to wield and extend beyond established precedents, drawing in particular on the case law of the European Court.
The firm would like to thank the Institut de Défense Pénale—a forum for exchange to which it is deeply committed—for its invitation and for the enriching experience of the day.
