All human rights restrictions have to be based in law. This ensures that human rights are not restricted arbitrarily. The requirement for human rights to be based in law also ensures that human rights restrictions are “authorised” by a legitimate lawmaker that has been elected by the people.
The requirement that human rights restrictions need to be based in law does not mean that the concrete restriction needs to be mentioned in law. Sometimes a measure that restricts human rights is mentioned directly in law.
example In Estonia, Article 4 of the Riigikogu Election Act (regulating the election of the Estonian Parliament) states that citizens of Estonia who have attained 18 years of age by the election day have the right to vote. Thus, the age limit for exercising the right to vote is set directly in law.
Read more about general measures.
In other cases, the law may give state authorities or officials the discretion to decide whether any measures that restrict human rights are needed and the measures which would be appropriate in the situation at hand.
example Judges are entitled to apply various restrictive measures to suspects or accused persons in the pre-trial stage of criminal proceedings. According to the Code of Criminal Procedure, they can choose between measures such as prohibition of departure from residence or committal in custody. The Code of Criminal Procedure entitles judges to make an individual assessment and to decide the measure which is the most appropriate for the situation and person at hand, taking into account the factors listed in the law.
Read more about individual restrictions.
note In the context of human rights restrictions, the term “law” is broader. It includes all legal norms issued by state authorities that are entitled to adopt binding general rules. In Estonia, this includes the laws adopted by the Estonian Parliament, regulations of the Government of the Republic, regulations issued by municipalities, the Bank of Estonia or other institutions that have the power to issue binding legal norms.
Quality of law
Laws restricting human rights need to be of a sufficient quality. This means that they need to be adopted by using proper procedures, and be accessible and sufficiently clear. In Estonia, the Supreme Court has explained that the legislative act restricting fundamental rights must meet the competence, procedural and form requirements, as well as the principles of legal clarity and legal reservation. According to the competence, procedural and form requirements, the act must be issued by a competent body, following all procedural and form rules, including making the act publicly available in the national database Riigi Teataja.
More intensive restrictions on fundamental freedoms can only be established by laws adopted by the Parliament. There is no single answer to the question in which case the restriction of fundamental freedom must be stipulated by law and in which case it can be done by regulation. The decisive criterion is the importance of the restriction – both from the point of view of the society in general and from the point of view of the individual whose fundamental rights are restricted.
As for legal clarity, a law can still be considered sufficiently clear and foreseeable if lawyers and courts need to interpret it. Because laws are usually general and applicable in different situations, they may be abstract and require some interpretation. Laws that place restrictions on professionals can also be written in more complex language than those applying to everyone else.
example Companies working in the field of security may need to fulfil a number of specific technical requirements in order to be able to operate. They may be written in a complex, technical terms as they are meant to be applied by professionals in the area of security. However, criminal laws defining criminal offences which everyone is obliged to observe must be written in simple terms understandable to everyone.
Special obligations of a lawmaker
In Estonia, the Government has adopted a regulation on Rules for Good Legislative Practice and Legislative Drafting which has to be used when making laws. It includes requirements such as analysing the impact of the law and involving interest groups and the public in the legislative process.
Where the restriction involves balancing the rights of different groups of people, the principle of good legislative practice requires that different alternatives and principles important in the balancing of those rights are properly assessed in the legislative process.