DIREITOS E GARANTIAS FUNDAMENTAIS | Prof. Gustavo Americano

Summary

This video script offers a comprehensive overview of fundamental rights, distinguishing between fundamental rights and human rights, as well as exploring their theoretical and dogmatic aspects. It elaborates on the difference between fundamental rights and guarantees, the material versus formal nature of rights, and the role of international treaties in the Brazilian legal system. Additionally, it highlights the hierarchy of these treaties and their integration into Brazilian law, particularly focusing on human rights treaties with constitutional status. The script aims to deepen understanding of rights in a constitutional context and their protection through legal mechanisms.

Takeaways

• 😀 Distinction between fundamental rights and human rights: Fundamental rights are established within a country's legal system, whereas human rights are declared in international treaties.
• 😀 Fundamental rights are individual and collective rights crucial to human dignity, freedom, and equality, while human rights are broader and more universally recognized.
• 😀 Fundamental rights can be protected through both preventive and reparative legal measures, with guarantees used to protect against violations.
• 😀 The terms 'fundamental rights' and 'guarantees' are often used interchangeably, but they are distinct concepts in legal terminology.
• 😀 Rights in the Constitution are not exhaustive; other fundamental rights may stem from constitutional principles and international treaties.
• 😀 The distinction between formal and material fundamental rights: Formal refers to rights explicitly listed in the Constitution, while material pertains to rights arising from principles or international treaties.
• 😀 The Brazilian Constitution ensures that the list of fundamental rights is not limited to the Constitution's text, but includes rights derived from the regime and international treaties.
• 😀 International treaties on human rights, once approved with required formalities in the Brazilian Congress, gain the status of constitutional amendments or supralegal norms, depending on compliance with procedural requirements.
• 😀 A treaty on human rights can have 'supralegal' status if it fulfills the material requirements but fails to meet the procedural ones, meaning it is above national legislation but below the Constitution.
• 😀 Treaties such as the Marrakech Treaty, the Convention on the Rights of Persons with Disabilities, and the Convention Against Racial Discrimination are key examples of international agreements affecting Brazilian law.
• 😀 International treaties that do not meet procedural requirements can still halt contradictory national laws through their paralyzing effect, but they cannot revoke them.

Q & A

What is the difference between 'fundamental rights' and 'human rights'?

The main difference is that 'fundamental rights' are rights internalized within a country's legal system, while 'human rights' are rights declared in international treaties. Both aim to protect basic human rights related to dignity, freedom, and equality, but their scope and jurisdiction differ.

Why is it important to distinguish between 'fundamental rights' and 'guarantees of fundamental rights'?

'Fundamental rights' refer to the rights themselves, such as dignity and freedom, while 'guarantees of fundamental rights' are the mechanisms, like legal remedies, that protect or enforce those rights. A guarantee comes into play when a right is violated or threatened, using tools like habeas corpus to protect those rights.

What is the role of 'guarantees of fundamental rights'?

The role of 'guarantees of fundamental rights' is to provide mechanisms to protect those rights, either by preventing violations or by remedying them if they occur. For example, habeas corpus protects the fundamental right to freedom of movement if it is violated.

What does the Constitution say about the list of fundamental rights?

The Constitution does not limit fundamental rights to the list in Article 5. It establishes that the list is not exhaustive, and additional rights may arise from the regime, principles, or international treaties to which Brazil is a party, as stated in Article 5, Paragraph 2.

What is the distinction between formal and material fundamental rights?

Formal fundamental rights are those explicitly listed and formalized in the Constitution, while material fundamental rights are those that arise from the country's principles, regime, or international treaties. Material rights do not necessarily need to be written in the Constitution but are still legally protected.

How do international treaties impact fundamental rights in Brazil?

International treaties concerning human rights can influence Brazilian law, and depending on their approval process, they can either have the same status as constitutional amendments or be considered 'supra-legal,' meaning they are above ordinary laws but below the Constitution.

What are the requirements for an international treaty to become part of Brazil's legal framework?

For an international treaty to gain the status of constitutional amendments in Brazil, it must meet both material and formal requirements. The material requirement is that the treaty must pertain to human rights, and the formal requirement is that it must be approved by both houses of Congress in two rounds of voting with a qualified majority.

What happens if an international treaty does not meet the formal requirements in Brazil?

If an international treaty about human rights does not meet the formal requirements, such as approval in both houses of Congress or the necessary majority vote, it enters Brazil's legal system with 'supra-legal' status, meaning it is above regular legislation but below the Constitution.

What is the significance of the Hans Kelsen theory in relation to fundamental rights?

Hans Kelsen's pyramid theory of legal norms helps us understand the hierarchy of laws. Fundamental rights, as established in the Constitution, are positioned at the top of the legal pyramid, but international treaties concerning human rights can be given a similar status if they meet the necessary criteria.

Can international treaties revoke national legislation in Brazil?

No, international treaties with 'supra-legal' status cannot revoke national legislation. However, they can have a paralyzing effect on conflicting legislation, preventing its application in certain cases.