Initially, constitutional remedies are included in the section on fundamental rights and guarantees listed in the Federal Constitution.
Like all fundamental guarantees, constitutional remedies contribute to the maintenance of the democratic rule of law. After all, these instruments were created to combat state arbitrariness, which is manifested by abuses and/or illegalities.
In this context, the Federal Constitution provides for: Habeas Corpus, Habeas Data, Mandamus, Writ of Injunction, and Popular Action . Each of these instruments has peculiarities that will be revealed here.
What are constitutional remedies?
First, it is worth highlighting the definition given by the distinguished minister Luís Roberto Barroso :
"Constitutional remedies are instrumental guarantees intended to protect fundamental rights enshrined in the Federal Constitution. They serve as instruments available to individuals to claim, in court, protection of their rights, which is why they are also known as constitutional actions."
Following this line of thought, constitutional remedies are therefore instruments that safeguard the fundamental rights of citizens against abuse or illegality by the Public Authorities.
Specifically, these constitutional actions occupy a different status in the legal world, since the Federal Constitution itself is responsible for codifying them.
Therefore, considering their importance, it is essential that lawyers know how to distinguish the unique characteristics of each constitutional action; for this reason, we will address each of them below.
Habeas Corpus
As provided for in Article 5 , item LXVIII of the Federal Constitution , Habeas Corpus is the constitutional remedy used to guarantee the freedom of movement of individuals.
The parties involved in a Habeas Corpus action are referred to as the Patient/Petitioner and the Respondent/Respondent.
The first subject refers to the person whose freedom of movement is threatened or restricted, and the second is the public authority that violates or threatens the right to freedom of movement.
Furthermore, Habeas Corpus is a free legal action and can be filed in a preventive or repressive capacity.
In other words, the mere threat to liberty or the restriction of liberty itself are equally grounds for Habeas Corpus.
In practice, caution is needed to:
- Not discussing the merits of the criminal defense in habeas corpus proceedings (suppression of jurisdiction);
- Failure to present evidence of the illegality of the arrest, whether through medical reports, witnesses, documentary evidence, or previous decisions proving the appropriateness of granting the injunction; and
- Do not make the request explicit.
habeas data
The second constitutional remedy, like Habeas Corpus, is a free legal action. It is provided for in Article 5 , item LXXII, and the procedure is governed by Law 9.507/97.
Thus, it is a constitutional remedy responsible for guaranteeing access to information concerning the petitioner that is contained in databases of public or governmental entities.
In addition to this purpose, a Habeas Data action can also be filed in cases where an individual wishes to correct their data, when they prefer not to do so through confidential judicial or administrative means.
This guarantee goes hand in hand with the principle of publicity and transparency, according to which the actions taken by the Public Authorities must be freely accessible to individuals.
Writ of Mandamus
Subsequently, the Writ of Mandamus is provided for in Article 5 , item LXIX, and is regulated by Law 12.016/09.
In effect, the Writ of Mandamus aims 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 an agent of a legal entity exercising powers of the Public Authority.
According to the renowned Maria Helena Diniz, a clear and certain right is:
"That which does not need to be investigated, by virtue of being perfectly determined, and can be exercised immediately, as it is indisputable and not subject to any controversy. To protect it, a writ of mandamus is appropriate."
It is worth noting that the Writ of Mandamus is the instrument used when the filing of Habeas Corpus or Habeas Data is not applicable, hence its residual nature.
Finally, the Federal Constitution provides for the possibility of filing a Writ of Mandamus also on a collective basis; in this case, those entitled to do so are:
- Political party with representation in the National Congress;
- A trade union, professional association, or legally constituted organization that has been in operation for at least one year, defending the interests of its members or associates;
Injunction order
Next, the Federal Constitution provides in article 5 , item LXXI, for the Writ of Injunction, the procedure for which is governed by Law 13.300/16.
Indeed, the Writ of Injunction is the appropriate constitutional remedy in the face of legislative omission by the Public Authorities, which makes the exercise of a fundamental right impossible.
Specifically, some rules have limited effectiveness and therefore require specific legislation to regulate them; if this does not occur, the rule becomes ineffective, which is unacceptable.
Therefore, a writ of mandamus is used to remedy the legislative or regulatory omission of the Public Authorities, who fail to enact a law that is essential for the effective exercise of a fundamental right.
popular action
Finally, the Popular Action has been present in the legal system since the Constitution of 1824.
According to article 5, item LXXIII, every citizen is entitled to file a Popular Action, aiming at the annulment of an act that is harmful to public assets, administrative morality, the environment , and historical and cultural heritage.
In addition to the constitutional provision, the Popular Action has its procedure governed by Law 4.417/65 , and its purpose is to protect diffuse and collective rights.
Final considerations on constitutional remedies.
In summary, constitutional actions are instruments that guarantee the exercise of fundamental rights enshrined in the constitutional text.
Therefore, their relevance in a democratic state governed by the rule of law is undeniable, since constitutional remedies divide their functions to obstruct the loopholes that prevent the effective exercise of fundamental rights.
In effect, it can be concluded that Habeas Corpus (HC) guarantees the right to freedom of movement ; Habeas Data (HD) the right to information ; Mandamus guarantees the exercise of clear and certain rights not covered by HC and HD ; Mandamus guarantees the applicability of fundamental rights, impaired by the absence of a norm ; and finally, Popular Action guarantees the protection of diffuse and collective rights against harmful acts.
In this sense, it is fundamental that the lawyer, acting in any of these cases, knows how to guide and substantiate their request in accordance with the nature and peculiarities of the constitutional action being pursued.
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