November 30
2020

Process-based Fundamental Rights Review: Practice, Concept and Theory

Leonie M. Huijbers

review by

Susana de la Sierra

Leonie M. Huijbers has produced a sound and thorough analysis of process-based fundamental rights review, a technique which has been criticised by some, and yet it is a type of review that is increasingly being applied around the globe. Aspects and consequences of such a procedural approach are manifold, as Huijbers elaborates throughout the volume. On the one hand, a strict analysis of procedural requirements can lead courts to dismiss applications on a speedy basis, thus contributing to a reduction in the backlog of cases. On the other hand, acting in this way may allow judges to avoid or circumvent debates they do not want to engage in, as they do not need to discuss the merits of the case.

Against this background, the book provides an ambitious and successful journey through numerous aspects of this legal technique, leading to an exhaustive account of it. A highly detailed Cartesian structure is a pathway to the dissection of this phenomenon under different geographical, institutional and theoretical perspectives. The book – following a methodological introduction to its approach and context – is divided into three parts, starting with the practice of process-based fundamental rights review (Part I), continuing with the concept of process-based fundamental rights review (Part II), to end with the theory of process-based fundamental rights review (Part III). A concluding Chapter 10 provides a final overview of the main results of the research.

To begin with, the author introduces the case law of the European Court of Human Rights (ECtHR) and the controversy on the ‘procedural turn’, whereby the ECtHR focuses on the decision-making processes of national authorities rather than on substance in order to assess whether there has been a violation of fundamental rights protected by the European Convention on Human Rights. The ECtHR formally links this behaviour with the principle of subsidiarity, meaning that national authorities are better placed to understand the context and determine when a violation of fundamental rights has occurred. Thus, the ECtHR further argues that such an approach limits the substitution of the national authorities’ view. This initial scheme is tested in various frameworks.

Firstly, Huijbers explores the use of process-based fundamental rights review following the structure of the division of powers. Through numerous national and supranational examples, the author argues that courts use procedural reasoning to determine violations of fundamental rights by the legislator, public bodies in administrative procedures or lower courts. Yet not all courts feel at ease when controlling, for instance, legislative procedures, as concerns arise vis-à-vis the role and functions of courts and legislators, and the danger of usurping each other’s tasks as a consequence thereof. It should be stressed that here, as well as in other parts of the book, the author makes an impressive methodological effort in confronting relevant cases from such a plethora of jurisdictions, all of them placed in context.

Secondly, as a bottom-up approach, the case analysis conducted in the first part leads Huijbers to try and identify the concept of process-based fundamental rights review. And she clearly succeeds in offering a clear conceptual framework nurtured both by practical examples and by academic literature. Out of the sound theoretical grounds of such a concept set forth by Huijbers, the leading idea of procedural reasoning as an evaluative method needs to be underlined. Courts assess potential violations of human rights by public authorities in their decision-making processes, but to understand how they do this and to foresee how they may do this in the future requires a deep knowledge of the underlying rationales applied. And this is conducted in Chapter 6, where it is argued that courts operate in an array of manners depending on factors such as the particular substantive right at stake.

Finally, the author ascends to a theoretical level linked to debates on democracy, the rule of law and the role and function of courts. This Part is a natural conclusion to ideas advanced in previous chapters, yet it could be very well conceived as an independent piece of work, and indeed a solid one. One of the main arguments proposed by Huijbers is that a procedural approach may be an adequate tool in cases in which deference is required, yet the court should offer an explanation clarifying its reasoning on its approach towards deference, ‘to counter claims of courts abdicating their judicial function as guardians of fundamental rights’. This being a leitmotiv that pervades the whole book, it may as well be its general conclusion.

 

Susana de la Sierra is Associated Professor of Administrative Law at the University of Castilla-La Mancha (UCLM) in Toledo, Spain. Ph.D. (EUI, Florence), LL.M. (Bayreuth), former law clerk at the Spanish Supreme Court. Her main research interests include administrative justice, theory and methodology of comparative law, culture and media law.

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