Principle of proportionality

Imagine, for instance, you're playing a friendly game of football. If a teammate slightly bumps into you while trying to take the ball, retaliating by aggressively shoving them in return could be seen as disproportional response. The response exceeds what would have been an appropriate level, in this case perhaps verbally voicing your displeasure or gently nudging back.

Consider the context of criminal justice. If a person is prosecuted for a minor offence, like petty theft, enforcing a disproportionately harsh sentence (such as life imprisonment) would be seen as violating the principle of proportionality. A proportionate response might involve a fine, community service, or a short-term imprisonment, depending on the specific jurisdiction and other factors.

In many democratic constitutions, proportionality comes into play when evaluating laws that may restrict individual rights or freedoms. Imagine a law initiated to ensure national security but in the process restricts freedom of speech. To evaluate whether such a law is constitutional, courts may undertake a proportionality analysis; assessing whether the law goes beyond what's necessary to achieve its goal of security - thus violating the principle of proportionality - or not.

For example, let's take the right to a fair trial, a fundamental human right. In a situation where public safety is a concern, such as in times of war, certain rights may be limited, including the accused's right to a public trial. However, if a non-public trial is held in a location where the accused can't participate or communicate with their lawyer, this might be deemed disproportionate, as it violates the right to a fair trial more than necessary to maintain public safety.

For instance, let's consider the common agricultural policy of the EU designed to support farmers and ensure Europe's food security. Suppose a new regulation is passed under this policy, heavily restricting the type of crops that farmers can grow. To determine the proportionality of this rule, courts might assess if such restrictions are excessive. Could the same policy goal be achieved with lesser restrictions, such as through subsidies or incentives, rather than absolute restrictions? If a less restrictive alternative exists, then the regulation could be deemed disproportionate.

Take, for example, a law aimed at protecting public health in pandemic times by restricting freedom of movement. While it may infringe upon individuals' right to freedom of movement, constitutional court could deem it proportional if it was the least restrictive means to prevent the spread of disease while still maintaining focus on public health.

A noteworthy case is 'United States v. Bajakajian' (1998), wherein a man was departing from USA without reporting that he was carrying more than $10,000 cash. As this is a violation of the law, all of the $357,144 seized from him was subjected to forfeiture. However, the Supreme Court held that the complete forfeiture violated the Eighth Amendment’s prohibition on 'excessive fines' as it was grossly disproportional to the gravity of the offence. Instead of fully appropriating the sum, a punitive forfeiture, that is proportionate to the crime committed, was imposed.

In the case 'R v Minister of Agriculture, Fisheries, and Food, ex parte Fedesa et al.' (1990), a directive was issued by the European Union to prohibit the use of certain hormones in livestock farming. The applicants, producers of these hormones, argued that the ban was disproportional as it prohibited all use of the hormones, rather than just harmful use. However, the European Court of Justice upheld the ban. It applied the principle of proportionality and found that the restriction was proportionate to the objective sought – i.e., the protection of public health.

In a landmark case 'Handyside v United Kingdom' (1976), the European Court of Human Rights applied the principle of proportionality to a freedom of expression case. The applicant published "The Little Red Schoolbook," which was deemed blasphemous and obscene due to its content perceived as promoting sexual activity among children. The UK authorities confiscated the copies and convicted Handyside. In response to the application filed by Handyside, the Court held that there was no violation of Article 10 (which guarantees the freedom of expression). The Court argued, taking into account the child-protective aims of the confiscation, that the response was a proportionate restriction on the freedom of speech.