In most cases where the law allows state authorities to restrict human rights, it also grants them certain discretion to carry out an individual assessment. The goal of this assessment is to determine whether human rights need to be restricted and the restrictions which are necessary and justified in the specific situation. Usually, when a state authority or official makes that assessment and restricts human rights, they will also need to issue a written decision.
example In Estonia, to organise a demonstration, in certain cases you may need to first notify the police. If there is reason to believe that holding of the demonstration causes a serious immediate threat, the police may ask you to change the time or place of holding of the demonstration, or prohibit the demonstration if the threat cannot be countered by using a less infringing measure. If such restrictions are issued, the police must state the legal basis for its decision, as well as the reasons why such measures are necessary and justified.
Reasoning
Decisions restricting human rights need to be duly reasoned. The duty to provide reasons is essential to prevent abuses of power and to be able to exercise the right to an effective remedy. In other words, if state authorities did not need to provide reasons for their decisions, these could be taken arbitrarily and it would be nearly impossible to appeal them.
The obligation to reason decisions also includes an obligation to assess the proportionality of any measures that restrict human rights. This means that where the law allows state authorities or officials to decide whether and the extent to which to apply certain measures, they also have a duty to carry out a thorough assessment of the restrictions of human rights test. This includes:
- the reason (legitimate aim) why measures/restrictions are necessary
- whether the measures adopted are necessary in the specific situation, i.e., whether there are other, less restrictive measures available that would allow for the protection of the legitimate aim as effectively
- whether the restrictions are proportional, i.e., whether the benefit to public interests outweighs the harm caused to individual rights.
Read more about the human rights restrictions test.
This assessment must consider the individual circumstances of each person and their situation, including, where relevant, their socio-economic background, age, disability or other grounds which may be relevant.
example Appearing before a court via video conference restricts the right to be present at trial. If a judge in a civil case orders a hearing to be held via video conference, they have to assess a number of aspects in each case, including whether all parties have access to video conference technology and broadband, whether they have the necessary technical knowledge to navigate a video hearing or whether their physical or mental health allows them to effectively follow hearings on screen for a potentially prolonged period of time.
In Estonia, decisions that restrict individual rights and are issued by state authorities are usually called “administrative acts”. According to the Administrative Procedure Act, administrative acts must be appropriate, necessary and proportionate to the stated objectives, and contain at least:
- the name of the administrative authority which issued it
- the name and signature of the head of the administrative authority or an authorised person
- the time of issue of the administrative act
- written reasoning, setting out the factual and legal basis for the issue, as well as considerations based on which the administrative authority made the decision
- reference to the possibilities of challenging the administrative act, including the place, term and procedure for the challenging of the act
Effective remedy
Any decision that restricts human rights must be subject to independent review capable of offering redress. This is called the right to an effective remedy. Therefore, if you receive a decision restricting your human rights, you should be able to appeal it before a court or another independent body. The procedure for appeal should always be indicated in the decision itself.
Read more about effective remedy.