THE PENAL SANCTION IN THE COLOMBIAN PEACE AGREEMENT WITH THE FARC-EP AND THE INTERNATIONAL STANDARD OF PROPORTIONALITY OF PUNISHMENT

The Government of Colombia signed a Peace Agreement with the FARC EP. A problem lies in the fact that the penalties to punish the culprits of international crimes supposedly are not compatible with the proportionality standard of the sanction provided in the Rome Statute. An issue that has prevented reaching a consensus to allow the implementation of the Peace Agreement in Colombia. The Deal contemplates sanctions called “effective restriction of freedom and rights,” between five and eight years for those who have reveal the truth. The paper shows that, the Peace Agreement obeys the standard of proportionality, due to its abstract nature, and it allows that the State on the exercise of its sovereignty, acquires a margin to define specific types of penalties to punish the culprits of international crimes. A mixture among retributive, restorative and reparative measures is a proportional way to sanction, as long as it is conditioned to the recognition of truth and liability.

Proportionality in two analytical zones of human rights adjudication

The paper identifies three analytical zones in human rights adjudication and places a proportionality analysis only in the two last zones. The judge should first define the right and decide whether there is a restriction of the right at stake in the certain case. The second analytical zone starts once the judge decides that there is a restriction, or in other words, an infringement of the right. The question is whether this restriction is a violation of the right or a reasonable limit in a democratic society. If the minimum content of the right is violated, then the right is violated. If the minimum content of the right is not violated, then the analysis involves a proportionality test. The test can become less controversial, appealing to the democratic principle and once it is agreed what is a democratic society. The proportionality analysis can also take place in a third but exceptional analytical zone; the zone of the derogation of the right.

It is not all about balancing: proportionality’s necessity test

Many articles or even whole books on proportionality barely mention its first two prongs, the suitability and necessity tests. It seems that it is all about balancing. In my paper, I argue that the necessity test has a much more important role than it has been acknowledged so far. Although the most obvious implications of shedding the appropriate light onto the importance of the necessity test are analytical (for instance, to make clear that proportionality is not only about balancing), I also show that taking the necessity test seriously has important implications for other ongoing debates related to the proportionality test, such as those concerning its rationality and the relationship between courts and political powers.

Australian Constitutional Culture and the Reception of Structured Proportionality

Australian public law is in a time of change. Notwithstanding the absence of a Bill of Rights, the High Court has imported a doctrine of structured proportionality into its implied freedom of political communication jurisprudence. However, Australia has a distinctive constitutional culture, shaped by a utilitarian political culture and a ‘legalistic’ approach to constitutional interpretation that eschews values-based reasoning. How will these factors inform the reception of structured proportionality in Australian public law? The paper traces the contentious nature of structured proportionality on the High Court and discusses its status as a ‘tool of analysis’ as opposed to a principle. The paper considers whether structured proportionality is leading the High Court to embrace values-based reasoning or if the Court is avoiding those aspects of the test that require engagement with values. The paper assesses the status and future of structured proportionality in Australian public law.

The Mendes Court (2003-2013): Progressist, Pro-Freedom, and Socially Engaged, but a Political Moralist

This essay discusses the Mendes Court, i.e. the phase of the Federal Supreme Court of Brazil (STF) lasting from the judgement of the Ellwanger Case, in 2003, to the 26th appeal in the Mensalão Scandal Case, in 2013. As I submit, the Judicial Reform, inspired by the model of a European Continental Court like the Federal Constitutional Court of Germany, was relevant to explain why the STF changed its attitude towards lower courts and other state branches. However, the determinant factors were the STF’s shift in case law towards the wide-scope conception of fundamental rights, taken from German legal theory. Under the influence of Justice Mendes, the STF borrowed the proportionality test from Germany, engaged in enhancing the effectiveness of social rights, and adopted a progressist view on individual freedoms and a protective approach of criminal guaranties, but a moralist attitude towards electoral and political matters, which reflect in the Brazilian polity still nowadays.

Shades of Proportionality: Fundamental Freedoms and Reasonable Restrictions in India

This paper tells the story of the proportionality doctrine in Indian constitutional reasoning. It is, I argue, one of innovation, loss, recovery, and pretence. Innovation: The Supreme Court, in 1950, summoned the deep structure of proportionality to invalidate legislation. It was a robust form of proportionality but without the term. Loss: By the late 1950s, proportionality analysis fell away. Assessing the reasonableness of legislative restrictions involved erratic doctrines. Recovery: It began in 2000. Without apparent context, the court invoked the language of proportionality in constitutional law. But reference to structure came only in 2016. The court outlined the steps proportionality entailed in India. Proportionality, its language and substance, had arrived in India, or so it felt. Pretence: With a clear approach to proportionality now in place, how has the court applied it? It hasn’t. So, proportionality analysis in India now is present in theory and absent in practice.