Constitutional remedies are present in society and are seen as valuable in the daily lives of the Brazilian population; they are considered extremely important within the Brazilian legal system, so much so that they are provided for in the Federal Constitution. 

For this reason, in this article we will address this issue, which is so important for the work of lawyers and legal professionals, especially for those who fight daily and tirelessly for a more just and democratic society.

Given the importance of each of the constitutional remedies, we will address each one individually. In addition to analyzing the legal provision, we will discuss the specific characteristics of each remedy and who has standing to bring them. Finally, I will briefly discuss possible legal actions in specific cases.

What are Constitutional Remedies?

Constitutional remedies are legal tools provided for in the Brazilian Federal Constitution, and are used to guarantee the fundamental rights of citizens. They are invoked when there is some illegality or infringement of a fundamental right, or when the State fails to fulfill its role of protecting these rights.

For example, a country with a public health system that neither meets the population's demands for medical treatment nor offers affordable medicines makes it necessary to resort to the Judiciary.

It is worth noting that all so-called constitutional remedies are species of the genus fundamental guarantees, insofar as they also seek to protect fundamental rights.

The strength of constitutional remedies originates from fundamental rights and guarantees, as provided for in Article 5 of the Federal Constitution, which are essential to protect and ensure, for all Brazilians and foreigners, the right to life, liberty, equality, security, and private property.

The following are considered constitutional remedies:

– Habeas Corpus (article 5, LXVIII of the Federal Constitution; article 647 of the Code of Criminal Procedure).

– Writ of Mandamus (Article 5, LXIX and LXX of the Federal Constitution and Law 12.016/09).

– Writ of Injunction (Article 5, LXXI of the Federal Constitution).

– Habeas Data (Article 5, X of the Federal Constitution and Law 9.507/97).

– Popular Action (article 5, LXXIII of the Federal Constitution; Law 4.717/65).

– Public Civil Action (article 129, III, of the Federal Constitution and Law No. 7.347/85).

In this sense, they are essential instruments for the protection of fundamental rights and guarantees provided for in the Federal Constitution, and some of them even have their own laws regulating them, in order to guarantee the effectiveness of democratic principles and the rule of law.

What are the types of Constitutional Remedies?

• Habeas Corpus (Article 5, LXVIII of the Federal Constitution; Article 647 of the Code of Criminal Procedure).

"Article 5, LXVII – Habeas corpus shall be granted whenever anyone suffers or is threatened with suffering violence or coercion in their freedom of movement, due to illegality or abuse of power";

Habeas corpus is a type of constitutional criminal action aimed at ensuring that acts or any violence that deprive a person of their freedom of movement, based on abuse of power or illegality, are protected. Any person may file a habeas corpus petition; legal standing is not required.

• Writ of Mandamus (Article 5th, LXIX AND LXX OF CF and Law 12.016/09).

“Art. 5° (…) LXIX – a writ of mandamus shall be granted to protect a clear and certain right, not covered by habeas corpus or habeas data, when the person responsible for the illegality or abuse of power is a public authority or agent of a legal entity in the exercise of powers of the Public Authority”

“Art. 5° (…) LXX – a collective writ of mandamus may be filed by: a) a political party with representation in the National Congress; b) a trade union, professional association or legally constituted association that has been in operation for at least one year, in defense of the interests of its members or associates.”

A writ of mandamus aims to protect a clear and certain right against illegality or abuse of power when habeas corpus or habeas data is not applicable. A clear and certain right is one that does not require proof other than documentary evidence, and the production of expert or testimonial evidence is not necessary.

In this sense, a writ of mandamus must be filed within 120 days of the act resulting from abuse of power or illegality, except for preventive writs of mandamus, which are understood to be those filed when there is a fear of abuse of power or illegality on the part of the victim.

• Injunction Order (Article 5th, LXXI of the CF).

“Article 5 (…) LXXI – an injunction shall be granted whenever the lack of a regulatory norm renders the exercise of constitutional rights and freedoms and the prerogatives inherent to nationality, sovereignty and citizenship unfeasible.”

The writ of injunction ensures any constitutional right that is not regulated, conferring immediate applicability to the constitutional norm that is inactive due to the absence of regulation, and the holder of the claimed right must have standing to sue.

• Habeas Data (Article 5, X of the Federal Constitution and Law 9.507/97).

Article 5 (…) LXXII – habeas data shall be granted: a) to ensure access to information relating to the applicant, contained in records or databases of governmental or public entities; b) for the rectification of data, when it is not preferred to do so through a confidential judicial or administrative process.”

Thus, it aims to protect the right of access to or rectification of personal information contained in government databases or publicly accessible information. This is a constitutional action of a civil nature and is exempt from court fees. Because it is a personal action, third parties cannot file it, and the data cannot be denied to the petitioner on the grounds of state security.

• Popular Action (Article 5th, LXXIII of the CF; Law 4.717/65).

“Article 5 (…) LXXIII – any citizen is a legitimate party to bring a popular action aimed at annulling an act that is harmful to public assets or to an entity in which the State participates, to administrative morality, to the environment and to historical and cultural heritage, with the plaintiff being exempt from court costs and the burden of defeat, unless proven bad faith”.

A popular action is an instrument granted to the citizen, giving them the opportunity to exercise oversight and invoke judicial activity so that they can modify administrative acts or contracts. In this way, it guarantees citizen participation in public life based on the principle of legality of administrative acts and the concept that public property belongs to the people.

The main requirement for such an action to be brought is that the plaintiff be a citizen, that is, have active voting rights. It constitutes an action with restricted standing, since a legal entity cannot file it.

• Public Civil Actiona (Article 129, III, of the CF and Law No. 7.347/85).

"Article 129. The institutional functions of the Public Prosecutor's Office are: III – to promote civil investigations and public civil actions for the protection of public and social assets, the environment, and other diffuse and collective interests;"

Public civil action has become a powerful means of combating harm to diffuse and collective interests. The Brazilian Constitution stipulates that it is the responsibility of the Public Prosecutor's Office to promote civil investigations and public civil actions for the protection of public and social assets, the environment, and other diffuse and collective interests.

Legal Advocacy and Constitutional Remedies

Lawyers play a fundamental role in the use of constitutional remedies, as they are the professionals responsible for defending the rights and interests of individuals in society. Effective representation in the use of constitutional remedies can assist their clients in various ways, including securing their release, as is the case with Habeas Corpus.

When consulted by a lawyer specializing in constitutional law, the lawyer will be able to advise the client on which constitutional remedy is most appropriate for protecting that right. Furthermore, the lawyer can draft and submit the request for constitutional remedy to the competent judge.

In practical terms, you will be able to make oral arguments in hearings, if necessary, monitor and oversee compliance with a specific decision issued by the judge, and appeal decisions that deny a particular constitutional remedy. 

Regardless of the specific approach of a constitutional law specialist, their work must always be guided by ethics and respect for constitutional norms and principles, in order to always seek the best defense of their client's rights and interests.

REFERENCES:

Article 5, LXVIII of the Federal Constitution; Article 647 of the Code of Criminal Procedure.

Article 5, LXIX and LXX of the Federal Constitution and Law 12.016/09.

Article 5, LXXI of the Federal Constitution.

Article 5, X of the Federal Constitution and Law 9.507/97.

Article 5, LXXIII of the Federal Constitution; Law 4.717/65.

Article 129, III, of the Federal Constitution and Law No. 7.347/85.

Schaefer, Jacqueline Dias de Freitas. Remedies or Guarantees of Constitutional Law. DireitoNet, May 2016.

DireitoNet. Constitutional remedies. January 2006.