Chapter 6 - Operationalising of Process-based Fundamental Rights Review

Summary

INTRODUCTION

Process-based fundamental rights review has been defined in Chapter 5 as ‘ judicial reasoning by which courts assess public authorities’ decision-making processes in light of procedural fundamental rights standards’. This review method therefore can be distinguished from substance-based review, which focuses on the content of an administrative or judicial decision or of a law. While the discussion in that chapter mainly focused on finding similarities between the examples of process-based review as well as the various conceptions of it put forward in the literature, this chapter focuses primarily on highlighting their differences or dissimilarities with the aim of uncovering the different ways in which this type of review can, at least theoretically, be applied.

Section 6.2 reiterates the constitutive elements of reviewer, subject of review, and object of review that have been set out in Section 5.2.3 and explains how they provide an important context for the application of process-based review. Section 6.3 aims to clarify the different ways process-based fundamental rights review, as a review method, can be applied. Using the examples provided in Part I as illustration, this section discusses seven aspects that allow for variations in the application of process-based review: the intensity of process-based review, the burden of proof, the standards for review, the result of procedural considerations, the location of review, the importance of procedural reasoning, and, finally, the conclusion of procedural reasoning. By distinguishing these elements, different variations of application of process-based review are identified in line with the general structure of fundamental rights adjudication. It therefore not only clarifies that process-based review is not a one-size-fits-all approach, but it also ensures the utility of this chapter for judicial practice. Section 6.4 briefly concludes the chapter.

REVIEWER, SUBJECT AND OBJECT OF REVIEW

The definition provided in Chapter 5 showed that process-based fundamental rights review entails a court (’ reviewer’) that looks into the decision-making procedure (‘object’) of a decision-making authority (‘subject’). These are three of the four constitutive elements of process-based review. The fourth concerns the qualification of process-based review as a ‘ review method’, which helps courts to determine whether a decision-making procedure met procedural requirements as set out in fundamental rights standards.