Doctrines and Facts - Evidence Based Review in Fundamental Rights Litigation
While normative based, doctrine driven adjudication might be seen as a harmless style of constitutional review, it might now become a useful tool to constitutional courts captured by the government. Exclusion of facts and evidence, disregarding the context in fundamental rights adjudication helps constitutional courts to avoid confrontation with the real impact of laws. However, establishing facts and admission of evidence might be crucial for making the proportionality test and public interest test. Facts, evidence and the context are therefore pivotal for fundamental rights litigation.
To explore good practices, in this research, the focus will lie on how these factors may and shall be incorporated into the constitutional review. Based on the findings of the research conducted on the German Federal Constitutional Court's case law, a framework on facts, evidence and context assessment will be outlined that can be used as a guidance in domestic fundamental rights litigations.
