All human rights restrictions need to be proportional. This means that in addition to being basted in law and serving a legitimate aim, the restrictive measures need to be balanced and proportional and not cause more harm to individual rights than benefit to public interests. 

The State must always assess proportionality when adopting measures that restrict human rights. This assessment consists of three main aspects: 

  • Whether the measures chosen are suitable for the protection of the legitimate aim
  • Whether there are any alternative, less restrictive measures that could be equally effective in protecting the legitimate aim
  • Whether the benefit to public interests outweighs the harm done to individual rights.
Suitability of measures

The restrictive measures must be suitable to protect the legitimate aim. This means that the restrictive measures must have an impact and be effective in protecting the interests at stake.

example For example, states may place restrictions on freedom of assembly during a pandemic by banning large gatherings. This measure is suitable for limiting the spread of infectious disease and protecting public health as it limits close contact between large groups of people, thus preventing the spread.

Alternative measures

Measures that restrict human rights are only necessary if there are no other, less restrictive measures that would protect the public interests (legitimate aim) as effectively as the measures that are applied. This requirement ensures that restrictive measures are not excessive and that the person’s rights are restricted as little as possible to protect public interests.

example Different groups of people with opposing opinions may want to organize a public gathering at the same time and ask a municipality to approve the time and place for the meetings. If there is a danger to public security, before banning any of the gatherings, the municipality must consider whether limitations such as minimum distance and the increased presence of police officers or other security measures could be effective and could then allow both gatherings to take place.

The existence of alternative measures must always be assessed when making the decision to restrict human rights, whether in the form of an individual decision or in the legislative process.

Proportionality

Human rights restrictions will only be proportional if the benefit to the public interest outweighs the harm done to individual rights. This requirement ensures that the burden placed on an individual person through the restriction of their rights is justified, necessary and balanced.

What is proportional depends on each situation and each person and the types of restrictive measures applied. Therefore, where the law gives some discretion to state authorities and officials, they must make this assessment in each case considering all the circumstances of the case.

example In the initial stages of pre-trial detention when there is a proven risk that the suspect may interfere with the gathering of important evidence, a judge may place the suspect in pre-trial detention. However, as the investigation progresses and all the evidence has been gathered, their placement in pre-trial detention may no longer be justified and proportional to protect the investigation.

Human Rights Guide

A European platform for human rights education