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 Lithuania, Article 8(1) of the Election Code states that citizens of Lithuania who have attained 18 years of age on 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 Article 120 of the Criminal Procedure Code, they can choose between measures such as remand, intensive supervision, house arrest or other measures. The Criminal Procedure Code entitles judges to make an individual assessment and to decide the measure which is the most appropriate for the situation and person at hand.
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 Lithuania, this includes the laws adopted by the Lithuanian Parliament, Cabinet of Ministers regulations, bylaws issued by municipalities, the Bank of Lithuania or other institutions that have the power to issue binding legal norms. Although according to the case-law of the Constitutional Court, the basis for restrictions should be defined at the law level rather than lower power legal acts.
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 Lithuania, the Constitutional Court of the Republic of Lithuania assesses three questions in order to assess whether a restriction of human rights is based in “law”:
- whether the measures provided for in the law correspond to legitimate and socially important goals
- whether these measures are necessary to achieve the stated objectives
- whether these measures do not restrict the rights and freedoms of the individual obviously more than is necessary to achieve these goals
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 Lithuania, the Constitutional Court of the Republic of Lithuania requires laws restricting human rights to have been adopted through a public legislative process. Laws, restricting human rights, must be lawful. The requirement of lawfulness implies that limitations can only be determined by a law that is publicly announced and its norms are formulated sufficiently clearly.