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 Estonia, 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.
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 state fee 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 pay the full state fee 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 Estonia, until recently, the Imprisonment Act banned long-term visits for persons in pre-trial detention, without any exceptions or individual assessment of a person’s personal situation. In 2019, the Supreme Court decided that the absolute ban on long-term visits for persons in pre-trial detention is contrary to the Constitution, as it excessively restricts the constitutional right to family life, without leaving any space for discretion.
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 act is adopted by the Parliament or Government, 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 your local government has refused to pay out social benefits that you are legally entitled to, 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 Estonia, you can challenge this kind of restrictions in the administrative court. If the administrative court believes that the ban violates your human rights, the court may initiate a constitutional review procedure at the Supreme Court to declare the particular legal provision restricting your rights to be incompatible with the Constitution.
Read more about effective remedy.