Constitutional Law and Human Rights
What the exam tests
This domain covers fundamental rights, constitutional remedies, federal organization, and the inter-American human rights system. For a delegate, the most frequent themes are the limits of police action, the rights of detainees, and the proportionality of restrictions.
Core concepts
- Direitos fundamentais: applicability, limits, and the reserva de jurisdição; rights are not absolute and are subject to proportionality.
- Remédios constitucionais: habeas corpus, habeas data, mandado de segurança, mandado de injunção, and ação popular.
- Devido processo legal, contraditório, and ampla defesa apply to administrative and disciplinary proceedings.
- Prisão e direitos do preso: communication with family and lawyer, and the prohibition of torture and cruel treatment.
- Sistema interamericano: the American Convention on Human Rights and the binding force of the Inter-American Court's decisions after Caso Gomes Lund.
Traps
- Habeas data is for access to personal data in public records; habeas corpus is for freedom of movement. Mixing them is a classic distractor.
- Mandado de segurança requires a liquid and certain right not protected by habeas corpus or habeas data.
- Controle de convencionalidade: conventionality control is not limited to the Executive; it applies to all state organs.
- Fundamental rights and the police: the exam tests whether a given police action violates proportionality, privacy, or the presumption of innocence.
Rule of thumb
For any police measure, run the proportionality test: legitimate aim, suitability, necessity (least restrictive means), and balancing. If a less intrusive measure existed, the action is likely unconstitutional.
Worked example
A delegate authorizes a collective search of residents in a community without individualized suspicion. Although the aim (public security) is legitimate, the measure is unsuitable and unnecessary because it targets people indiscriminately; it violates equality and privacy and is unconstitutional. The exam expects the proportionality analysis, not merely a citation of the Constitution.