The legal nature of evidence in the international doctrine of constitutional law

Abstract

The article is devoted to relevant, but understudied issues related to the formation of the evidence base in the doctrine of constitutional law. Legitimation of the constitutional process by evidence can be successful regardless of the goal preferred by the subjects of the constitution. If constitutional design prioritizes the goal of substantive legitimacy, it legitimizes the broad powers of the constitutional judge through the need to maximize the evidence gathered. If, on the contrary, the constitutional design gives priority to the goal of procedural legitimacy, it legitimizes the function of the constitutional judge through the development of a fair procedure of proof. In this way, the outcome of the trial can more easily gain the approval of the community and strengthen confidence in the functioning of constitutional justice. The fundamental right to evidence is constitutionally protected to the extent that it is implicit in the right to due process. The author pays special attention to the definition of the content of the concept of proof in the constitutional judicial process based on the analysis of the norms of international constitutional law, which are characterized by the presence of a set of certain methods of cognition, that is, scientifically determined and practically tested rational methods or a system of methods of obtaining the necessary amount of knowledge for making an objective and well-founded decision. Evidence in a judicial constitutional process should be understood as a certain process of learning by the subjects of this process — judges and the apparatus of constitutional jurisdiction as a whole, which is implemented as the collection, verification and evaluation of evidence. In this extremely complex intellectual process, proof plays an important role as a logical action during which the truth of an opinion or position is substantiated and established.
 As a result of working on this topic, the author investigated and highlighted two discourses on procedural legitimation. In the first case, legitimization is the result of a test procedure check that takes place before an ordinary judge. In the second case, legitimation is the result of the absence of a complex procedure of proof before a constitutional judge.