Strategies for Balancing the Decision of Being Under Surveillance with the Freedom of Movement of a Suspect in French and Iranian Law

Abstract

According to jurists advocating proportional reasoning, balancing deals with the inevitable conflict between rights and norms, and aims to justify the preference of one competing right over another without dominance. In the preliminary investigation, being under surveillance stage is a coercive measure and infringes on the freedom of movement and the legal interests of the suspect. This infringement generally serves legitimate purposes, including the protection of societal rights, the protection of the victim’s rights, and the efficiency of criminal investigations and proceedings. These purposes are considered equal status and importance to the suspect’s freedom of movement. Therefore, the decision-maker is obliged to weigh the competing legal interests. Using an analytical and descriptive approach, the study highlights the mechanism for conducting this assessment. To address this rights conflict, various strategies have been including the severity of the crime, the hierarchical value of rights, adequation, necessity and the value-based diligence of the judge. The research indicates that none of these strategies on their own, can provide a desirable mechanism for weighing competing interests and achieving balancing. Nonetheless, decision-makers can draw on these strategies and, with skill and foresight, determine the weight and importance of conflicting rights and norms.