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 Moldova, Article 38 of Constitution and Article 14 of the Election Code state that citizens of Moldova 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 and trial stages of criminal proceedings. According to Article 175 of the Criminal Procedure Code, they can choose between measures such as the obligation not to leave the locality, the obligation not to leave the country, provisional release under judicial control, provisional release on bail, house arrest, preventive 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.
example In the case of declaring a state of emergency, the planning, organization and coordination of the implementation of the imposed measures fall to the Commission for Exceptional Situations of the Republic of Moldova, which has the discretion to take the necessary measures, but within the limits set by Parliament.
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 Moldova, this includes the laws adopted by the Moldovan Parliament, Government’s regulations, bylaws issued by municipalities, the National Bank of Moldova 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 must be adopted by using proper procedures. Also, they need to be accessible and sufficiently clear. In Moldova three questions need to be answered in order to assess whether a restriction of human rights is based in “law”:
- whether the law has been adopted though proper procedures set out in laws regulating the legislative process;
- whether the law is promulgated and publicly available;
- whether the law is sufficiently clear and foreseeable enabling a person to understand their rights and obligations and foresee the consequences of a failure to fulfil them.
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 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.
The Moldovan Constitutional Court established that the question of the quality of a law does not represent a question of constitutionality as long as a fundamental right is not affected.
Special obligations of a lawmaker
In Moldova laws restricting human rights have to be adopted through a legislative process that is compatible with the so-called principle of good law-making. This principle guarantees that a human rights restriction is adopted through a democratic legislative process, which includes the law-maker hearing and analysing different opinions. According to Moldovan law the following principles must respected in a legislative act:
- constitutionality
- respect for fundamental rights and freedoms
- legality and balance between regulations
- the opportunity, coherence, consecutiveness, stability and predictability of legal norms
- ensuring transparency, publicity and accessibility
- compliance with the hierarchy of legislative acts
The regulation must correspond to the provisions of the Constitution, the international treaties to which the Republic of Moldova is a party, the unanimously recognized principles and norms of international law. The solutions proposed in the draft normative act must be in accordance with the European Union legislation in the respective field and ensure compatibility with it. Where the restriction involves balancing the rights of different groups of people, the principle of good law-making requires that different alternatives and principles important in the balancing of those rights are properly assessed in the legislative process.
According to the Moldovan law the public authorities are obliged to undertake the necessary measures to ensure the possibilities for participation of citizens, of their associations established in accordance with the law, of other interested parties in the decision-making process.