All restrictions on human rights must be based in law. This means that state officials can make individual decisions to restrict human rights only if this is permitted by law. Usually, the law will also determine the extent to which human rights can be restricted and the level of discretion which state officials have to make that decision.
However, some laws leave no space for an individual decision and directly provide for restrictions that need to be applied in all cases. These are called general measures or restrictions on human rights that are included directly into law. They apply in the same manner in all cases falling under the law without any individual assessment.
These restrictions can take a variety of forms. In many cases, they do not deny the exercise of human rights altogether, but determine the manner or conditions under which certain aspects of rights may be exercised. Such restrictions may include time limits for filing court documents, tax declarations or other documents, conditions for access to certain professions, age limits for eligibility to vote or to be elected, and other similar restrictions.
example The right to freely choose a profession can be restricted by the requirement to obtain certain education or to be licenced. In Latvia, police officers, judges, doctors, aircraft pilots and other professionals must have obtained higher education and, in some cases, a special licence to work in their particular profession. This licence may even need to be periodically renewed.
Even though a restriction is set by law and does not provide space for an individual assessment, it must still be necessary and proportional. This means that when adopting the restriction into law, all elements of the fundamental rights restriction test, including the legitimate aim, alternative measures and proportionality, must be carefully assessed.
Since restrictions set by law are inflexible and usually apply to everyone in the same manner, the lawmaker must pay special attention to any discrimination or unequal treatment that may result from applying the law in the same manner to different people. This may mean that the lawmaker will need to provide exceptions to the general rule in some situations.
example If the security deposit for filing a cassation claim to the Supreme Court in civil cases is 300 EUR, the lawmaker needs to provide mechanisms that allow people from disadvantaged socio-economic situations who cannot afford to post the full security deposit to be able to access to court.
Read more about the human rights restrictions test.
In some cases, laws are formulated as blanket bans on the exercise of some aspects of human rights. These are also sometimes referred to as absolute prohibitions on the exercise of specific human rights.
example In Latvia, until recently, the Law on the Protection of Children’s Rights banned all persons who have been convicted of violent criminal offences from working in any job or profession that would require the person to come into direct long-term or regular contact with children. The law did not provide for any exceptions or individual assessment of a person’s personal situation.
The Constitutional Court of Latvia considers a ban absolute if it:
- is directed at all persons belonging to a certain group, i.e., it does not provide for individual assessment and thus does not provide for exceptions
- has no expiry date and is applicable throughout a person’s life.
In such cases the Constitutional Court of Latvia places a special responsibility on the legislator to carry out a thorough assessment of the necessity and proportionality of the absolute ban. In particular, the Constitutional Court of Latvia requires that the legislator:
- duly justifies the need for an absolute restriction (legitimate aim)
- thoroughly assesses the essence of the absolute restriction and the consequences of its application
- duly justifies why providing for exceptions or the possibility of individual assessment would not allow for the protection of the legitimate aim in an equally effective manner.
Where human rights restrictions, especially absolute bans, are set by law, the legislator has a special responsibility to carry out a proportionality assessment in the legislative process. This is true regardless of whether the “law” is adopted by the Parliament or Cabinet of Ministers, or any other state institution entitled to adopt binding general rules.
Where there is no possibility in the implementation process to soften the restrictions or to adapt them to the individual circumstances of a person, the legislative process needs to reflect an in-depth proportionality assessment, which includes all aspects of a human rights restrictions test. Such assessment needs to be particularly thorough where the restrictions are absolute, or where they concern a highly contentious issue impacting on important aspects human rights.
example When assessing laws banning certain religious clothing or laws depriving groups of persons such as prisoners the right to vote, courts pay particular attention to the legislative history and the quality of the human rights assessment within the legislative process. Therefore, the legislator must make a thorough in-depth assessment of the restrictions, their necessity and of how they will affect different persons.
Any person whose human rights have been restricted has the right to challenge the legality and validity of that restriction. This right is known as the right to an effective remedy.
This right guarantees every person who thinks that their human rights have been unduly restricted, access to a court or other independent body which can examine all aspects of the complaint and offer a preventive remedy or at least compensation if rights have already been violated.
example If the State Social Insurance Agency has refused to pay out sickness benefit, you can challenge that decision before an administrative court.
Read more about an administrative court.
The right to an effective remedy also applies to legislative restrictions, including absolute bans on the exercise of human rights. In Latvia, such remedy can be sought in the Constitutional Court of Latvia which examines the compatibility of laws with human rights.
1 July 2014
06 October 2005
30 March 2021
17 December 2020
28 January 2021
24 November 2017
12 May 1996