42
of 23 September 1982 Series A no. 52, the European Court assesses if
the interference is proportionate to the legitimate aim, in doing so it
“must determine whether a fair balance was struck between the
demands of the general interest of the community and the requirements
of the protection of the individual’s fundamental rights.”
106.5
In order to determine whether the restriction of rights is legal,
the Inter-American Court of Human Rights is guided by Articles 30 and
32(2) of the American Convention on Human Rights (ACHR) which sets
out the scope of restrictions on rights. Article 30 of the ACHR provides
that:
“The restrictions that, pursuant to this Convention, may be placed on
the enjoyment or exercise of the rights or freedoms recognized
herein may not be applied except in accordance with laws enacted
for reasons of general interest and in accordance with the purpose
for which such restrictions have been established.”
On its part, Article 32(2) provides that:
“The rights of each person are limited by the rights of others, by
the security of all and by the just demands of the general welfare,
in a democratic society.”
A restriction on rights is authorized only if the legal basis is a legislative
act and if the law’s content conforms to the ACHR. The Court requires
that the restrictions be legal and legitimate. This approach is settled in
Baena Ricardo and others against Panama (Judgment of 2 February
2001).