Concept of Human Rights

Conceito de Direitos Humanos

• Direitos Humanos are the set of rules and rights that materialize human dignity and are essential for it.
• Natural rights apply universally and independently of political contexts, while positive rights depend on the rules created by the political community where they are applied.
• Human Rights are inherent to man as a condition for their dignity and are usually described in international documents to ensure they are more securely guaranteed.
• The essence of human rights is to protect the dignity of the human person, safeguarding their most fundamental attributes.
• The conquest of human rights is a search for the dignity of the human person.

Direitos Humanos X Direitos Fundamentais

• Human rights and fundamental rights are ontologically similar, and both are essential for materializing human dignity.
• Human Rights are positivized in the international legal order, while Fundamental Rights are positivized in the internal legal order of a specific country.
• An example of Human Rights is the American Convention on Human Rights, and an example of Fundamental Rights is CF/1988.

Características dos Direitos Humanos

• The doctrine stipulates the following characteristics of human rights:
  • Historicidade (historicity)
  • Universalidade (universality)
  • Relatividade (relativity)
  • Irrenunciabilidade (non-renounceability)
  • Inalienabilidade (inalienability)
  • Imprescritibilidade (imprescriptibility)
  • Unidade / Indivisibilidade ou interdependência (Unity / indivisibility or interdependence)

Historicidade

• Human rights are the result of a historical evolutionary process resulting from struggles and recognition over time.

Universalidade

• Human rights reach everyone, regardless of color, religion, sexual orientation, ideology, etc.

Relatividade

• Human rights are not absolute and can be limited.
• The relativization of human rights arises from the need to adapt them to other coexisting values in the legal order, especially when they clash, thus requiring the harmonization of conflicting legal goods.

Irrenunciabilidade

• Human rights cannot be waived because people do not have the right to renounce their dignity.

Inalienabilidade

• Human rights cannot be sold because they are non-transferable and non-negotiable.

Imprescritibilidade

• Human rights can be enforced at any time, as they are not lost over time, existing regardless of their use.

Unidade (indivisibilidade ou interdependência)

• Human rights are indivisible, forming a set of interdependent rights, forming a single block of rights.
• There is no hierarchy among human rights, as all are important for protecting human dignity, and they must be harmonized in case of collision.

Evolução Histórica dos Direitos Humanos

• The French Revolution in 1789 resulted in the Declaration of the Rights of Man and of the Citizen, emphasizing liberty and equality.
• The dignity of the human person is a fundamental principle in the Brazilian legal system, and it is a foundation of the Democratic State of Law, according to article 1 of the Federal Constitution of 1988.
• The hermeneutic function of human dignity guides the interpretation and application of legal norms in order to promote respect for human dignity.
• The diagonal effectiveness of fundamental rights is applied in relationships between individuals in situations of vulnerability, such as labor or consumer relations, where there is an imbalance.

Dimensões dos Direitos Fundamentais

• The objective dimension of fundamental rights, a construction of the German Constitutional Court in the 1950s, relates to the "object" of fundamental rights.
• The subjective dimension is concerned with the subject of the relation (individual).

Os quatro status de Jellinek

• Georg Jellinek's Theory of the Four Statuses describes the individual's legal situations before the State with the following statuses:

Status passivo (status subkectionis)

• An individual is in a situation of subordination to Public Power, possessing duties to the State.

Status ativo (status activus)

• An individual participates in political decisions, related to the fundamental rights of political participation.

Status negativo (status libertartis)

• The individual has a sphere of liberty that must be respected by the State, and the State should not interfere.

Status positivo (status civitatis)

• The individual can demand an action from the State related to concrete actions to enable rights, participating in the formation of state will be present in decisions.

The four statuses of Jellinek have been updated

• Now there are only 3 statuses due to the suppression of status passivo because the individual is now considered more than just owing duties to the state.

Teoria dos Limites

• The theory of the limit of limits establishes that any limitation to fundamental rights must respect the essential core of these rights, guaranteeing their preservation.

Tratados Internacionais

• International human rights treaties approved in each House of the National Congress by three-fifths of the votes in two rounds of voting have the status of constitutional amendment
• A treaty that assumes a supralegal status is above ordinary legislation but below the Federal Constitution.
• The treaty becomes part of a bloc of constitutionality.

Prisão Civil do Depositário Infiel (Civil Imprisonment of the Unfaithful Depositary)

• Brazil is a signatory to the American Convention on Human Rights (Pact of São José da Costa Rica), which prohibits such imprisonment, despite the possibility of such imprisonment being explicitly stated in the Constitution of 1988.
• The pact is not incorporated into Brazilian law with constitutional force, so it is supralegal.
• The Supreme Court decided to grant a "paralyzing effect" to treaties that address human rights, leading to the prevalence of international norms over constitutional text regarding personal freedom.
• Article 7 of the Pact of San José de Costa Rica guarantees the right to personal liberty and security. Nobody can be deprived of physical liberty, except for reasons and conditions previously fixed by the states' Constitutions or the Laws.
• A detained person must be informed of the reasons for their detention. They should be brought before a judge or authorized authority, judged in a reasonable time, or released without prejudice to the continuation of the process.
• Liberty may be conditional to ensure appearance in court.

A Convenção garante:

• Guarantees the right of a person deprived of liberty to appeal to a competent judge or court in order to decide on the legality of their arrest or detention, and to order their release should the arrest or detention be illegal.
• The resource cannot be restricted nor abolished and may be interposed by the person or by another person.
• The American Convention on Human Rights establishes that every person deprived of liberty must be treated with respect for their dignity, prohibiting torture, cruel punishments, and degrading treatments.
• It determines the separation between defendants and convicts, and requires the sentence to have the essential purpose of re-socialization.
• Based on article 144 of the Federal Constitution, the Military Police are state institutions responsible for overt policing and preserving public order, subordinate to the Governors of the States, the Federal District, and the Territories.
• The New York Treaty recognizes that deficiency results from the interaction between people with limitations and social barriers, promoting a human rights approach for inclusion and equality.

Dimensões Dos Direitos Humanos

• The third dimension of human rights includes solidarity rights. Examples are the right to the environment and peace.

• Third-generation rights are considered to be of indeterminate ownership because they do not refer to isolated individuals, but to groups or to the collectivity, with rights such as a healthy environment, peace and development linked to the interest of all.

• Norberto Bobbio distinguishes between natural and positive law.

• Aristotle defined natural law as having the same efficacy everywhere, while positive law has efficacy only in the singular political communities where it is put.

• The United Nations Convention against Corruption, also known as the Mérida Convention, is the first international treaty focused on strengthening international cooperation to prevent and combat corruption in all its forms.

• The Mérida Convention, adopted by the UN in 2003, establishes primary objectives for preventing and combating corruption effectively, promoting measures to recover assets and strengthen transparency and public integrity.

• The Convention requires States Parties to consider bribery a crime in their legislation, covering not only national public officials but also foreign officials and representatives of international organizations.

• The main purpose of international cooperation against corruption under the Mérida Convention is to establish mechanisms for mutual assistance between States to investigate complex corruption crimes. The goal is to recover diverted assets and promote the punishment of offenders.

• The Convention of Mérida innovates in the treatment of corruption crimes involving different jurisdictions by making the principle of double incrimination more flexible. It allows international cooperation even when the definitions for crimes are not identical.

• The Universal Declaration of Human Rights (UDHR), adopted in 1948.

• UDHR has a legal nature that defines its applicability.

• The UDHR is an instrument of international law widely recognized as an ethical and moral reference, but without legally binding force in itself (Soft law).

• The Universal Declaration of Human Rights (UDHR) emerged after World War II, aiming to create an environment of multilateralism that guaranteed peace between nations and strengthened human rights, so that the horrors of the recent war would not be repeated.

• The UDHR recognizes that the family is the natural and fundamental nucleus of society, ensuring the right to constitute and protect it, regardless of cultural or social limitations.

• The prohibition of torture in the UDHR is absolute, admitting no type of exception, regardless of the circumstances.

• The UDHR was adopted by the UN General Assembly in 1948.

• The preamble establishes that human dignity is essential to achieving freedom, justice, and world peace, being the central foundation for the recognition and protection of human rights.

• According to the UDHR, the right to life, liberty, personal security, and access to justice are essential rights guaranteed to everyone.

• Legality, proportionality, respect for human dignity, and protection against abuse are fundamental principles of Human Rights applicable in public security, according to international treaties and Brazilian legislation.

• Protecting people not directly involved in armed conflict and limiting the effects of these conflicts on civilians, the wounded, and prisoners of war is the main objective of International Law.

• The UDHR states that everyone has the right to individual or collective property. They cannot be arbitrarily deprived of it, in addition to guaranteeing security as an essential right. Considers all individuals are born free and equal in dignity and rights, but also suggests material equality by promoting a truly egalitarian treatment, regardless of social conditions.

• The Universal Declaration of Human Rights states that economic and social rights, such as labor, education, and an adequate standard of living, are essential to human dignity, influencing international pacts and national legislation.

• The UDHR guarantees the right to asylum in case of persecution, but excludes those who have committed common crimes or acts contrary to the principles of the United Nations.

• Cultural differences, economic crises, and the absence of binding mechanisms hinder the implementation of the rights proclaimed in the.

• According to the Brazilian Constitution, external control by the Public Ministry, control of legality by the Judiciary, and administrative, penal, and civil accountability of agents are the protection mechanisms foreseen to prevent abuses of power and violence in public security operations.

• The Declaration of The Rights Of Man and of the Citizen reflects the historical evolution of Human Rights is based on historical milestones such as the Code of Hammurabi, Magna Carta, and other consolidating principles of freedom.

• The indivisibility of Human Rights in the harmonization of legal conflicts determines that Human Rights are interdependent and violation of one may compromise the protection of others, requiring a that considers the harmonization of legal goods in collision.

• The historicity of Human Rights recognizes that human rights evolved from historical struggles and are shaped by specific social, economic, and political contexts.

• The Protocol of San Salvador, created to complement the Pact of San José da Costa Rica, is specifically dedicated to social, economic, and cultural rights.

• The UDHR was approved by the General Assembly of the United Nations (UN) on December 10, 1948, in the form of a Resolution.

• Although third-dimension rights are not addressed directly, article 1 of the UDHR highlights fraternity as an essential principle, being a theoretical basis for the rights of solidarity and development.

• The theory of the limits of limits establishes that the limits must respect human dignity.

• Generations/Dimensions of human rights:

  • First generation: Rights of freedom, such as freedom of expression, religion, movement, the right to life, the right to vote, among others.
  • Second generation: Social, economic, and cultural rights, such as the right to education, decent work, health, and well-being.
  • Third generation: Collective or diffuse solidarity rights, such as the right to a healthy environment.

• Third-generation takes the focus away from the individual and his personal interests and needs. The goal is to satisfy the interest of the community, i.e. collective rights.

• In this generation it is impossible to individualize the possessor of these rights.

• A pedagogical dimension exists, such as in police work or in other support based jobs, but exists only prior the the real specifications of a specific role.

• In the past this role was kept uniform to parents, teachers and education specialists, it is now important to also include roles like doctors, lawyers, journalists and police.

• The objective of Interministerial Ordinance No. 4.226/2010 It deals with a rule based on the need for guidance and standardization of the procedures of public security agents to the international principles on the use of force, with the objective of gradually reducing the rates of lethality resulting from actions involving public security agents.

• Regarding the impacts of the Enlightenment on the development of Human Rights: it is possible to observe the development of fundamental concepts such as liberty, equality and fraternity, in addition to the creation of legal frameworks such as the French Declaration of Human Rights and of the Citizen, which inspired universal rights.

• The central principle of the dignity of the human person in the Federal Constitution of 1988 consists of a value principle that unifies the entire legal order and serves as an interpretive basis for the laws. The main function of the radiant effectiveness of fundamental rights is to guide the interpretation and application of all legal norms, influencing the legal system as a whole.

• Under the Theory of the Limits of the Limits, an infra-constitutional rule may contradict a fundamental right when the contradiction widens and promotes the fundamental right, respecting human dignity and the principles of proportionality, adequacy and necessity.

• According to the Federal Constitution of Brazil, public security is a fundamental right, being a duty of the State and a responsibility of all, in order to preserve public order and the rights of individuals.

• Under article 12 of the Declaration of the Rights of Man and of the Citizen (1789), the main function of the public force is to be instituted for the benefit of all, guaranteeing the rights of man and of the citizen.

• According to the criminologist Riccardo Capri, one of the fundamental roles of the police in relation to Human Rights is to be a social educator, contributing to the formation of citizen awareness through their daily actions.

• The concept of "rigor versus violence" in the context of public security means that the use of legitimate force must be governed by law, by technical necessity and by ethical values, avoiding crude and arbitrary practices.

• The importance of emotional balance between police institutions, according to the principles of Human Rights is to ensure that police officers are well treated internally do not direct aggression against citizens, and also to strengthen efficiency in the performance of their mission.

• The fundamental historical documents to understand the transition between the Absolutist State and the Liberal State in the context of the first generation of Human Rights are the Magna Carta (1215), Declaration of the Good People of Virginia (1776) and Declaration of the Rights of Man and of the Citizen (1789).

• Industrial Revolution highlighted the need for state intervention to regulate conditions of work, health and safety, consolidating rights as social security and access to education.

• Sovereignty is limited by international norms and by fundamental rights, representing a political unit in interaction with phenomena of globalization and interstate integration.

• According to Montesquieu and Beccaria, the role of laws in the Rule of Law is to represent the popular will and to establish strict limits for the actions of the Executive and Judiciary powers, ensuring that all penalties and actions are defined by the law.

• The equality is only defined in the concept of a Democratic State of Law as a principle that limits the Legislative branch, ensuring that the laws treat equals equally and unequal differently, in proportion to their inequalities.

• According to José Afonso da Silva, popular participation is essential for the legitimation of the State, and must be effective, continuous and act in the formulation, control and supervision of political decisions in all spheres of state power.