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 Latvia, to organize a demonstration, you may need to first receive permission from the municipality. In this decision, the municipality can either refuse permission or impose certain conditions, including determining restrictions on the time, place and manner for conducting the demonstration. If such restrictions are issued, the municipality 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 Latvia, decisions that restrict individual rights and are issued by state authorities are usually called “administrative acts”. Article 67 of the Administrative Procedure Law determines the form and content of such decision. Such decision must contain at least:
- the institution (official) that issued the decision
- its addressee
- the facts of the case
- the legal basis of the decision
- the reasons why the decision, including any measures restricting human rights, is necessary and justified in the specific situation
- any obligations placed on the addressee
- how to appeal the decision.
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.