Débats contemporains sur la neutralisation in rem

Section II: Contemporary Debates on Neutralization of the Legal Element

• Discusses the neutralization of certain supra-legislative norms (rights of defense or general interest debates guaranteed by the ECHR) when their application necessitates or justifies an infraction.
• A law can neutralize another law by creating a justification, similarly, a superior norm can do the same.
• Conventionality checks consider how fundamental rights guaranteed by the ECHR can justify infractions.
• The ECHR defends the right to defense and freedom of expression.
• The question arises: can supra-legislative norms neutralize an infraction if their application legitimizes the infraction?

Example of Document Required for Defense in a Labor Dispute

• An example case involved an employee who stole documents necessary to a labor court case, claiming the theft was justified by their right to defense.
• The question is whether the theft was legally justified by the exercise of the right of defense.

Example of Fraud Committed Against a Political Party

• A journalist infiltrated a political party, pretending to be a member, and stole internal documents to write a critical article.
• The party filed fraud charges, but the journalist was acquitted due to their claim of exercising freedom of information rights.
• The case highlights the conflict between journalistic principles like truth-seeking, and allowable actions in covering a political situation.
• The ruling permits actions that might be considered illicit based on the principle of freedom of information.

Example of Sexual Displays and Freedom of Expression

• Actions like those by the Femen group were debated in relation to freedom of expression, with the court weighing freedom of expression versus lewdness or inappropriate displays.
• Courts are required to balance competing fundamental rights when deciding such cases.

Cases Involving Freedom of Expression and Conduct

• Cases involving freedom of expression, such as those with Femen, raise complex consideration of appropriate balance of competing rights (like the right to freedom of expression and religious freedom.)
• The court's rulings are often case-specific because the balance is different depending on the exact circumstances.
• ECHR rulings on similar cases in France showcase inconsistent approaches. The cases raise ambiguity in applying fundamental principles, and the need for courts to balance competing interests.
• Courts struggle to consistently apply the principle of balancing. The example of cases of Femen in public vs religious settings demonstrate a wide range of outcomes based on nuances in the context.

Case of Violating Freedom to Expression

• The court recognized freedom of expression in deciding cases concerning a journalist's actions.
• Their actions were justified by the right to freedom of information.
• This raises concerns about the acceptance of potentially inappropriate actions if they're deemed necessary for publicizing information.

§2: Consent as a Defense in Criminal Cases

• Consent as a defense raises a crucial question: whether a victim's consent can justify a crime, particularly with public order crimes.
• Public order crimes are those which are deemed harmful to society as a whole; they do not hinge on the victim's agreement or consent.
• Consent cannot justify a crime. This is because crimes of public order are usually about violating a vital social value or order, which override individual preferences.
• The principle of public order, with the related principles of the law, and the need for consistent application of existing social values, are paramount in evaluating this.
• The court looks to the severity and type of the harm, and other relevant principles regarding social order and general public safety, in making its deliberations.

Consent in Violating Crimes

• In cases involving crimes of violence (e.g., assault or rape), consent is generally irrelevant.
• Even when consent is given for a public order infraction, the principle is that such individual actions do not neutralize the criminal violation itself.
• Consent cannot neutralize the underlying infraction or crime.
• Existing law clearly establishes the principle that consent of the victim does not justify a public order crime.

Later Consent and Its Effects

• Later consent or withdrawal of a complaint does not change the original wrongdoing.
• This applies to various crimes (public vs private) or instances of misconduct.
• Actions of the alleged victim after the crime is committed aren´t relevant to judging the validity or legitimacy of the crime itself.