20. While limitations on certain rights and freedoms can be set, these must be
clearly stipulated in law and based on legitimate aims, such as security,
safety and public order, public health or the rights and freedoms of others,
and must be proportional to those aims.
As provided for in human rights law, most rights and fundamental freedoms can
be subject to certain limitations based on a legitimate public interest in line with
the constitution and the State’s international obligations. These limitations must be
established in law to avoid arbitrariness, provide a closed list of possible reasons for
limiting the rights and must be necessary and proportional to the pursued aim. The
limitations should be interpreted narrowly and reviewed regularly.
When restrictions on the exercise of a right are established in law or applied in a
specific case, the decision to do so should be guided by relevant case law56 and may
benefit from the consolidated comparative interpretation in relevant guidelines.57
Efforts to balance two or more equally protected rights that potentially conflict is
carried out in different ways at the political and judicial levels. At the political level,
legislators might establish in law that in a set of defined circumstances precedence
is to be given to one right over another. At the judicial level, the proper balance of
rights is established by courts following clear criteria.
21. Legislation should provide for clear and effective remedies. Full access to
these remedies should be ensured.
Legislation should be supported by effective remedies that make violations of the
law punishable and their effects reversible.58 This stems from the principles of the
rule of law and of equal protection under the law that are common to all participating
States as integral parts of international human rights law.
Remedies should be provided by the law. They should be as clear as possible
to minimize arbitrary interpretation and must be administered by an independent
56
57
58
Inter alia, European Court of Human Rights (hereinafter: “ECtHR”) case law.
See, inter alia, Weber, A., Manual on hate speech, Council of Europe Publishing, 2009, and OSCE Office
for Democratic Institutions and Human Rights (hereinafter: “ODIHR”), “Guidelines on Freedom of Peaceful
Assembly”, 2007.
Also see Guideline 47.
30
Guidelines on Integration of Diverse Societies