*Writer: Matheus Carvalho

Constitutional remedies are legal instruments provided for in the Federal Constitution, essential for protecting the fundamental rights of individuals against abuses of power and illegalities committed by the State. Furthermore, they guarantee the effectiveness of the rights and freedoms ensured by the current constitutional order.

These mechanisms are available to citizens to safeguard their rights whenever there is illegality or abuse of power on the part of the Public Authorities. Among the main examples of constitutional remedies, the following stand out: Habeas Corpus, Writ of Mandamus, Writ of Injunction, Habeas Data, Popular Action, and Public Civil Action.

These procedural tools become essential when faced with threats or violations of rights, such as freedom of movement, a clear and certain right, or situations in which the absence of regulation makes the exercise of constitutional rights and guarantees impossible.

Why are Constitutional Remedies important?

1. Guaranteeing and protective function

Constitutional remedies, such as Habeas Corpus and Mandamus, are fundamental to protecting individuals against abuses of authority and omissions by public authorities. They ensure that no arbitrary action goes unchecked by the courts, guaranteeing the integrity of fundamental rights.

2. Defense of Individual and Collective Rights

These instruments are essential both for the protection of individual rights and for the preservation of collective interests. Through them, citizens and groups can resort to the Judiciary to seek redress and ensure respect for the rights enshrined in the Constitution.

3. Strengthening the Democratic State

Constitutional remedies contribute to the consolidation of the democratic rule of law, ensuring that constitutional principles are upheld. Furthermore, they promote active citizenship, encouraging citizen participation in monitoring the exercise of power and defending their rights, reinforcing the accountability of public officials to society.

Types of Constitutional Remedies

1. Habeas Corpus

Habeas Corpus is a constitutional remedy provided for in item LXVIII of Article 5 of the 1988 Federal Constitution, intended to protect the fundamental right to freedom of movement, whenever someone suffers or is threatened with suffering illegal violence or coercion in their freedom to come and go. 

Habeas Corpus can be filed in situations where a person is illegally detained or threatened with unjustified detention. For example, if an individual is detained without a warrant and outside of flagrant offense, or if there is a threat of arbitrary arrest, Habeas Corpus can be invoked to restore their freedom.

Situations in which it is applicable

Repressive (liberatory) habeas corpus
Used when a person's right to freedom of movement has already been violated. In this case, the court order seeks to end the illegal detention, immediately restoring the individual's freedom.
Example: a person detained without a valid court order can file a Habeas Corpus petition to be released.

Preventive habeas corpus (safe-conduct)
Filed when there is an imminent threat of violation of freedom of movement, even if the arrest has not yet occurred. If granted, the judge issues a safe-conduct, preventing arbitrary arrest.
Example: a protester who fears being arbitrarily arrested for participating in a protest can file a preventive Habeas Corpus to ensure that their freedom is not violated.

Features and application

Legitimacy: Habeas Corpus can be filed by any person, on their own behalf or on behalf of third parties, regardless of whether they are a lawyer, since it does not require legal standing.

Free of charge: there are no procedural costs for filing this petition.

Urgency: Due to its emergency nature, Habeas Corpus petitions are analyzed with absolute priority by the Judiciary.

This constitutional remedy is essential to ensure that no illegal imprisonment or coercion is perpetuated, guaranteeing the preservation of one of the most fundamental human rights: freedom of movement.

2. Habeas data

Habeas Data is a constitutional remedy provided for in item LXXII of Article 5 of the 1988 Federal Constitution, which ensures the right of access to personal information held by public bodies or entities of a public nature, as well as allowing the correction of incorrect data. This instrument aims to protect privacy and promote transparency in the management of personal information.

As stipulated in Law 9.507/97, ​​Habeas Data is applied in three main situations:

• Access to personal data held by public bodies or government entities.
• Correction of incorrect or outdated information in these records.
• Inclusion of objections in cases where the information is true but is under judicial or amicable dispute.

Who can file the petition?

• Individuals and legal entities can use habeas data to access and correct their personal data.
• Its application is highly personal, meaning the interested party must be the owner of the data they wish to access or correct.

Procedure for filing a habeas data petition.

To file a habeas data petition, the interested party must first request access to or correction of the data through administrative channels and receive a negative response or no response at all from the competent authority. Therefore, habeas data stands out as an exception to the rule of direct access to the Judiciary, requiring a prior administrative attempt.

Characteristics and competence

Free of charge: habeas data is a free procedure and does not generate procedural costs for the petitioner, nor is there a need to pay court fees or costs of the losing party.

Lawyer: although legal assistance from a lawyer is necessary, it is an accessible tool to ensure the right to information.

This instrument is fundamental in times of increasing digitalization and data management, ensuring access to information, control of personal data, and protection of citizens' privacy. It has no statute of limitations, guaranteeing that the data subject can claim their rights at any time.

Habeas data not only reinforces the right to privacy, but also promotes transparency in public administration, preventing the misuse of personal information and strengthening the exercise of citizenship.

3. writ of mandamus

The Writ of Mandamus is a constitutional remedy provided for in item LXIX of Article 5 of the 1988 Federal Constitution and regulated by Law No. 12.016/2009. Its purpose is to protect a clear and certain right that is not covered by habeas corpus or habeas data. 

Its main function is to prevent or correct abuses of power and illegalities committed by public authorities or agents of legal entities in the exercise of public functions.

Features and application

A writ of mandamus is a procedural instrument of a mandatory nature and has a subsidiary character, that is, it is only used when there is no other more appropriate judicial means to guarantee the right in question.

• Clear and certain right: to be applicable, the alleged right must be clear and proven by documentary evidence at the time of filing, without the need for further evidentiary proceedings.
• Purpose: The MS (Mandamus) seeks to prevent or correct administrative acts that violate individual or collective rights, serving as an important tool to curb abuses and illegalities in the exercise of public functions.

Who can file and what are the deadlines?

• Legitimacy: both individuals and legal entities can file a writ of mandamus. In the case of entities, it can be used to protect rights involving their activities or interests.
• Time limits: the deadline for filing is 120 days from the date of knowledge of the act or omission that violated the right, as established by Law No. 12.016/2009. This deadline is a statute of limitations, meaning that after its expiration, the right to file the writ of mandamus is extinguished.

The writ of mandamus has restrictions regarding its application. It is not applicable in the following cases:

• Acts of commercial management: the writ of mandamus cannot be used to challenge acts of commercial management performed by administrators of public companies or mixed-economy companies, as provided for in Law No. 12.016/2009. This is justified by the understanding that these acts do not directly involve the administrative public function.
• Review of judicial decisions: the use of a writ of mandamus is not permitted to review judicial decisions that have already become final or decisions that have an administrative appeal with suspensive effect. The function of a writ of mandamus is to protect clear and certain rights, and not to replace the ordinary appeal procedures provided for in procedural law.
• Retroactive patrimonial effects: a writ of mandamus is not the appropriate instrument for obtaining retroactive patrimonial effects. For this purpose, a specific legal action, suitable to the patrimonial claim of the interested party, is necessary.

Importance and effectiveness

Its function is to ensure the effectiveness of clear and certain rights, maintaining legal order and preventing abusive acts from going unanswered. By guaranteeing quick and effective access to justice, the writ of mandamus is an essential pillar in the protection of constitutional guarantees and in the promotion of a transparent and accountable public administration.

4. Injunction order

The writ of injunction is an important constitutional remedy provided for in article 5, item LXXI, of the 1988 Federal Constitution, intended to combat the ineffectiveness of constitutional norms of limited effectiveness. 

These norms depend on sub-constitutional regulations to produce all their effects, and, in the absence of such regulations, the Mandate of Injunction becomes essential to force the State to fulfill its legislative obligations.

Function and purpose of the injunction order

The Mandamus of Injunction (MI) is a concrete mechanism for controlling constitutionality through omission, ensuring that citizens can exercise their fundamental rights, even in the face of legislative inaction. It guarantees that constitutional rights and freedoms are not rendered ineffective by the lack of complementary norms, obliging the State to act in accordance with its constitutional obligations.

Difference between MI and ADO

Although the Mandamus of Injunction (MI) and the Direct Action of Unconstitutionality by Omission (ADO) share the objective of combating normative omission, they have distinct natures:

• MI: It has a subjective and concrete character, aimed at protecting the individual and specific rights of citizens who have been harmed by the lack of regulation.
• ADO: It has an objective and abstract character, intended to defend the constitutional order and the integrity of the Constitution, without aiming at the protection of a specific subjective right.

The role of the judiciary through the MI (Mandate of Injunction). 

By granting an injunction, the Judiciary temporarily fills the regulatory gap, ensuring that the constitutional right is not rendered ineffective. The judicial decision remains valid until the Legislature enacts the necessary law, thus promoting the effectiveness of constitutional provisions and preventing harm to citizens.

Thus, the Mandate of Injunction is configured as a fundamental instrument to maintain the balance of powers and ensure that legislative inaction does not compromise the full realization of fundamental rights. Through this mechanism, it is possible to guarantee the effectiveness of the Constitution and protect effective access to the rights provided for in the constitutional order.

5. popular action

Popular action is an instrument for direct citizen participation in the preservation of public assets and administrative morality. Provided for in Article 5, LXXIII, of the 1988 Federal Constitution, it allows any Brazilian citizen to propose the annulment of acts that are harmful to public assets, administrative morality, the environment, and historical and cultural heritage.

Function and purpose of popular action

The purpose of a popular action is to annul illegal or abusive acts that cause damage to collective assets and values, such as public resources and diffuse rights. The civic-administrative nature of this instrument reflects the republican principle, ensuring that public administrators are accountable for their management and avoid abuses in the exercise of power.

The action can be used both preventively, to stop the consummation of a harmful act, and repressively, to reverse damage that has already occurred.

Who can file a class action lawsuit?

• Active standing is restricted to Brazilian citizens in full enjoyment of their political rights. Proof of citizenship is made by presenting a voter registration card or other equivalent document. The following do not have standing to bring a popular action:
• They lack standing to bring a class action lawsuit.
• Foreigners and stateless persons;
• Brazilians with suspended political rights;
• Legal entities (Supreme Court Precedent 365).

It is worth noting that a class action lawsuit is free for the citizen who files it, except in cases of proven bad faith. Even though it is exempt from court fees and attorney's fees, if the defendant is convicted, they must reimburse the procedural expenses.

Situations in which a class action lawsuit is appropriate.

• A class action lawsuit can be used to defend the following collective interests:
• Public assets: goods and resources belonging to the State or public entities;
• Administrative morality: controlling abusive or dishonest administrative acts;
• Environment: environmental protection against damage and degradation;
• Historical and cultural heritage: preservation of relevant cultural assets and values.

Proof of material damage is not required to file the lawsuit. Harm is presumed whenever the administrative act is illegal or contrary to the principles of public administration.

The jurisdiction and process of class action lawsuits

The jurisdiction to hear a class action lawsuit is determined by the origin of the act being challenged (federal, state, or municipal). As a rule, class action lawsuits are heard in the first instance court, regardless of the authority involved. 

The Supreme Federal Court (STF) does not have original jurisdiction over these actions, even in cases involving high-ranking officials, except in exceptional situations provided for in the Constitution.

A judgment rendered in a class action lawsuit has erga omnes effect, meaning it is valid for everyone. However, if the lawsuit is dismissed for lack of evidence, any other citizen may file a new lawsuit, provided they present new evidence.

Popular action strengthens participatory democracy and promotes transparency and efficiency in public administration. By allowing citizens to monitor and question actions that affect the collective interest, this legal instrument becomes essential for preserving public assets and promoting administrative morality.

Procedures for filing a constitutional remedy: steps to propose a constitutional remedy.

1. Drafting the initial petition

The initial petition is the main document that must be submitted to the competent judge. It must contain:

• A clear presentation of the facts.
• Legal basis appropriate to the case.
• Specific request (such as cessation of unlawful coercion, access to data, among others).

2. Documentary Evidence

Whenever possible, it is essential to attach evidence to support the request. Pre-established evidence is especially required in some remedies, such as a writ of mandamus.

3. Representation by a Lawyer

To initiate legal remedies such as a writ of mandamus and a class action lawsuit, representation by a lawyer is required.

In the case of habeas corpus, legal representation is not required; that is, anyone can file a petition without needing a lawyer.

Difference between constitutional remedies and ordinary civil actions

Constitutional remedies are specific actions created to protect fundamental rights, such as freedom and access to information, in a fast and efficient manner. Because they are prioritized, they have a faster processing time than ordinary civil actions, which deal with private interests and follow longer processes.

Constitutional Character and Priority of Remedies

Constitutional remedies guarantee basic rights, such as:

• Freedom (with habeas corpus, in case of illegal imprisonment)
• Access to personal data (with habeas data)
• Guarantee of rights impeded by lack of law (through a writ of injunction)

Common lawsuits, on the other hand, involve less urgent matters, such as debt collection or compensation claims, and follow the normal legal process without priority.

Comparative Examples:

Constitutional Remedy	Ordinary Civil Action
Habeas Corpus: Free those who are illegally imprisoned.	Compensation Claim: Seeking compensation for damages suffered as a result of imprisonment.
Writ of Mandamus: Protects against abuse of public authority.	Ordinary Action: Resolves disputes involving private interests.
Habeas Data: Ensures access to or correction of personal data.	Declaratory Action: Used to acknowledge some personal right.

Individual and Collective Remedies

• Individuals: They protect a specific person, such as individual habeas corpus for someone who suffers an unjust imprisonment.
• Collectives: They advocate for a group of people in similar situations, such as a collective habeas corpus, which can benefit several inmates in precarious conditions in the same prison.

Constitutional remedies are faster and focused on guaranteeing fundamental rights, while ordinary civil actions deal with private interests and follow a slower process. 

Conclusion

Constitutional remedies are essential to guarantee the protection of fundamental rights and the defense of citizens against abuses and omissions by the State. They ensure freedom, access to justice, and the preservation of individual and collective rights, strengthening the democratic rule of law.

Understanding and properly using these instruments is fundamental not only to preserving constitutional guarantees, but also to promoting an active and engaged citizenry.

Furthermore, constitutional remedies serve as a bridge between the rights enshrined in the Constitution and everyday practice, ensuring that everyone has access to effective protection against abuses of power and omissions.

Therefore, knowing and being able to use these remedies is an essential step for any citizen or legal professional seeking to act responsibly in the defense of justice and the public interest.

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References:

LENZA, Pedro. Constitutional Law. 28th ed. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). (Outlined®). ISBN 9788553621958. Available at: https://integrada.minhabiblioteca.com.br/books/9788553621958.

MENDES, Gilmar Ferreira; BRANCO, Paulo Gustavo Gonet. Course on Constitutional Law. 19th ed. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). (IDP). ISBN 9786553629417. Available at: https://integrada.minhabiblioteca.com.br/books/9786553629417.

MENDES, Gilmar Ferreira; CAVALCANTE FILHO, João Trindade. Didactic Manual of Constitutional Law. 9th ed. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). (IDP Series). ISBN 9786553624436. Available at: https://integrada.minhabiblioteca.com.br/books/9786553624436.

NOVELINO, Marcelo. Course on Constitutional Law. 11th ed. Salvador: Editora Jus Podivm, 2016.