Constitutional Guarantees

Constitutional guarantees were created as a mechanism to curb state abuse or illegality committed by the coercive protecting the fundamental rights of individuals. They are constitutional actions that aim to remedy or prevent injury or coercion that affect individual or collective rights, depending on the situation, called by law with constitutional remedies, in which the petitioner is called a patient.

Examples of constitutional guarantees

Although each charter has its own legal framework, the following guarantees are collected in the set of constitutions:

• – The habeas corpus procedure states that a detained person can appear before a judge when he considers that his detention is illegal or irregular. So the judge decides whether the arrest is in accordance with the law.
• – Every citizen has the right to collect and update all information that may affect him in a legal proceeding; this guarantee is known as habeas data. Constitutional Guarantees
• – The right to be judged by an impartial and competent judge is recognized. To guarantee such a right the possibility of refusing a judge is also recognised.
• – In the face of any violation of rights or freedom, the right to protection is recognized.
• – All citizens, regardless of their beliefs or political ideas, are equal before the law. Therefore, there is a principle of equality .
• – The right to jurisdiction consists in recognizing the right of every individual to be tried by a court .
• – There is also the right not to testify against oneself and the right to remain silent.
• – When a criminal act is attributed to a person, he/she has the right to the presumption of innocence until proven otherwise.
• – No one may be deprived of their liberty, except by order of a competent authority.

Origin and history of fundamental rights and guarantees

The fundamental rights and guarantees, consolidated and inherent to all Brazilian citizens through the Federal Constitution of 1988, have a history of evolutions and bases that go back to the 18th century.

The existence of fundamental rights is closely linked to the creation of human rights as a whole.

The first major milestone in the creation of fundamental rights and guarantees for the dignified existence of human beings is 1789, more specifically in the Universal Declaration of the Rights of Man and Citizen, written during the French Revolution.

The ideals of human dignity and basic guarantees for the existence of humanity in society was an important milestone, as it was the first time that the creation of universal rights was thought of, which would guarantee the minimum conditions of human existence in society.

In this way, the Declaration of Human Rights of the United Nations (UN) of 1948 is strongly based on its sister of 1789, and had a greater amplitude, since it is a primer of basic rights that is defended by all countries that signed it.

Characteristics of fundamental rights and guarantees

Like everything within the legal system, fundamental rights have their own principles and characteristics that explain their modus operandi.

We highlight seven characteristics and principles that underpin fundamental rights below:

feature 1: universality

The fundamental rights and guarantees of the Federal Constitution of 1988 must, due to their protective nature, reach the entire population administered by the State, without any type of distinction.

Feature 2: imprescriptibility

The imprescriptibility is the principle that determines that fundamental rights do not prescribe over time.

They can be exercised at any time and have no expiration date. Failure to take advantage of a specific fundamental right does not mean that the individual loses, over time, the possibility of exercising that right.

Feature 3 : Inalienability

Fundamental rights are, by nature, inalienable. This means that they cannot be transferred, ignored, undone and negotiated, since their existence confers the ordering of the legal order and the maintenance of the State itself.

Feature 4: Relativity

Another characteristic of fundamental rights is their relativity. This means that, although universal, fundamental rights are not absolute and can be relativized according to the situation and the conflict of interests that arise.

Relativization, however, is not unrestricted: one cannot relativize the right to the point where it no longer makes sense or can no longer be applied.

An example: people are free and have the right to freedom, but they have their freedom deprived when they commit crimes that result in prison sentences.

Feature 5: complementarity

The principle of complementarity defines that fundamental rights and fundamental guarantees are complementary. This means that they should always be analyzed together, with one complementing the extension of the other.

In order for collective rights to be exercised in accordance with what the Federal Constitution demonstrates, for example, fundamental individual rights must also be functioning and fully exercisable.

Feature 6: non-renounceability

Fundamental rights cannot be renounced by any individual in the nation. No person can, by his own will, deny the rights and duties given as fundamental.

Feature 7: historicity

The last principle of fundamental rights and guarantees states that they are the result of a historical process.

This means that fundamental rights and fundamental guarantees are not alien to historical processes and changes within society, being able to adapt to new realities and paradigm shifts that society faces as it walks through time.

Classification of fundamental rights and guarantees

As we saw earlier, fundamental rights and guarantees are divided 

In categories that classify them according to their applications in relation to the rights of individuals and society.

Individual and collective rights , for example, bring fundamental rights related to the right to life and liberty, both of individuals and collectives organized or formed based on specific characteristics.

Social rights , in turn, take into account the fundamental rights that the whole society enjoys. The rights to education, food, security, work, housing and health are examples of fundamental social rights.

Nationality rights, as the name implies, determines the norms, rights and duties of Brazilians (born and naturalized) in relation to their country and their status as Brazilian citizens in other places.

Finally, political rights determine the freedom of political manifestation, to organize politically and to form political parties, presenting rules, rights and duties of the citizen and the political party cell before society.