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About the Court Print

Diffuse Constitutional Control

The model of diffuse constitutional control adopted in Brazil allows any judge or tribunal to declare the unconstitutionality of legislation, without any kind of restriction concerning the different types of legal actions. As in the American model, the judges are granted broad scope of power to promote judicial review.

Different from other models, there is not in the Brazilian judiciary system one single type of action or appeal to protect the fundamental rights, being tailored to this purpose, mainly, the following constitutional actions: “mandado de segurança” 1, the writ of “habeas corpus”, “habeas data”, “mandado de injunção” 2, “ação civil pública” 3 and “ação popu­lar” 4. Due to its great relevance in the system of protection of rights, a few of those actions will be further detailed as it follows.

1. According to the Brazilian Constitution, it is a remedy against abuse of power or illegality of a public authority or the representative of a legal entity in charge of public attributions when there is a threat to a clear legal right.

2. It refers to a legal action that aims to secure to any citizen the fundamental rights established in the Brazilian Federal Constitution but not yet regulated by legislation.

3. This legal action has as its objective the indemnification of damages caused to the environment, to consumers, to assets and rights of artistic, historic or touristic value or also damages caused to the landscape.

4. It refers to a legal action that can be filed by any Brazilian citizen whenever he/she wishes to void acts that have damaged the public patrimony.

"Habeas Corpus"

The purpose of “habeas corpus” is to protect the traditionally safeguarded in the Brazilian constitutional system.

In the current system of the Constitution of 1988, the writ of “habeas corpus” aims to protect the individual against any restraining measure from the public power to his/her right of freedom. The prevailing jurisprudence of the Supreme Federal Court is that the process of “habeas corpus” is only allowed to advance if there is any restriction to the individuals freedom of movement. It is important to mention that it is also possible to file a writ of “habeas corpus” petition against any citizen.

The concept of freedom of movement should be understood in a broad sense, meaning any action that can constrain an individual liberty.

“Mandado de Segurança” (Writ of Mandamus)

The “mandado de segurança” is a procedural instrument to protect constitutional rights, that has been established in every Brazilian Constitutions since the one issued in 1934 6, except for the Constitution of 1937. This right is granted by the Constitution of 1988, in article 5, LXIX, that rules: “it will be granted to protect clear legal right which is not guaranteed by “habeas corpus” or “habeas data” when the responsible for the illegality or abuse of power is a public authority or an individual acting on behalf of a legal entity when performing attributions of public power”. The Constitution also grants “mandado de segurança coletivo”, that can be filed by any political party represented in the National Congress, by any trade union, class association or legal association running for at least a year defending its member or associates (Federal Constitution, article 5, LXX, “a” and “b”).

6. Article 76, 1-i, of Constitution of 1934. Article 141, § 24 of Constitution of 1946. Article 153, § 21 of Constitution of 1967/1969.

“Habeas Data”

Concerning the instruments for the protection of individual rights, the Brazilian Constitution of 1988 granted “habeas data”, an institute to ensure the access to relevant information concerning the petitioner, recorded or stored in the database of governmental institutions or of public nature and also to allow the correction of the information stored, when one does not prefer to correct it via an administrative or judicial case under seal. (Federal Constitution, article 5, LXXII).

“Mandado de Injunção”

The Constitution of 1988 acknowledged a particular meaning to the judicial review of the so called legislator omission. The article 5, LXXI, of the Constitution expressly stipulated that the “mandado de injunção” shall be granted whenever the lack of regulation of a constitutional rule makes infeasible to practice a constitutional right or a prerogative inherent to the status nationality, sovereignty and citizenship.

The “mandado de injunção” is a remedy to be used when the legislator did not comply with his/her duty to enact a law, as required by the Constitution, and this breach affects affirmed constitutional rights.

“Ação Popular” and “Ação Civil Pública” (Public Civil Action)

 In addition to the procedures and the systems designed to defend individual positions, the legal protection is carried out by the use of instruments for the defense of diffuse and collective interests, such as “ação popular” and “ação civil pública”.

The Constitution states that the purpose of “ação popular” is to annul a harmful act to the public patrimony, to the administrative morality, to the environment and to the historic and cultural patrimony. As for the clearly public character of this constitutional action, the petitioner is exempt of court fees and of legal costs of the prevailing party, unless it is proved that the plaintiff is litigating maliciously (Federal Constitution of 1988, article 5, LXXIII).

The “ação popular” is a typical instrument of citizenship and can only be filed by a citizen, here described as one that duly complies with his/her civic, military and electoral obligations, as legally required.

The “ação civil” has been used as a significant institute of protection of diffuse and collective interests and, although it is not its purpose to defend individual or singular positions, it has also been used as an important instrument of protection of rights in general, especially consumer rights.

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