PROCESS-BASED REVIEW IN THE PRACTICE OF FUNDAMENTAL RIGHTS ADJUDICATION

Process-based review can be found in fundamental rights adjudication from all around the world. This type of review means that courts scrutinise the fairness, diligence, and quality of decision-making procedures of legislative, executive, and judicial authorities in order to determine if a fundamental right has been violated. This review is generally contrasted with substance-based review, which means that courts look into the substantive reasonableness of measures affecting fundamental rights. Although procedural reasoning is applied in fundamental rights cases, it has given rise to considerable controversy. In the US, John Hart Ely's call for a process-oriented, participation-reinforcing type of judicial review – which was inspired by the famous footnote four of former US Supreme Court Justice Stone in Carolene Products of 1938 – attracted serious criticism in the 1980s. For instance, it was argued that procedural reasoning cannot circumvent the counter-majoritarian difficulty and that courts are trying to hide their normative assessment under the guise of a ‘neutral’, procedurefocused review.

Today, a debate is ongoing concerning the use of procedural reasoning by the European Court of Human Rights. Mention has been made of a procedural turn by the ECtHR, by which is meant its increasing focus on the national decision-making process when determining whether States have violated one of the substantive rights in the European Convention on Human Rights. Current legal scholarship focuses on understanding what this procedural turn means, on explaining the reasons for this procedural trend, and on arguing whether it is a positive or negative development. On one hand, for example, procedural reasoning is considered to sit well with the subsidiary position of the ECtHR and to encourage national authorities to secure Convention rights. On the other hand, procedural reasoning is considered to lower the protection of fundamental rights standards and to be unsatisfactory for applicants searching for substantive justice in Strasbourg. To add to the complexity of these scholarly debates, it is clear from case-law analyses that the ECtHR applies procedural reasoning in various ways. Sometimes it is used in relation to the proportionality test and sometimes in relation to States’ margin of appreciation; sometimes the ECtHR relies exclusively on procedural reasoning, but more often, it applies procedural reasoning and substantive reasoning simultaneously.