According to the Brazilian Federal Constitution, no one is deprived of liberty or property without due process (Article 5, liv). This is the basis of the principle of due process, a kind of which all the other constitutional principles of the process are species. The importance of the principle of due process of law is so great that it is contained not only in the overwhelming majority of sovereign constitutions, but also in the Universal Declaration of Human Rights and the American Convention on Human Rights. In this context, due process is said to be a general and open clause that produces different and autonomous principles, incidents on all actions of the state and not exclusively on the judicial process. From an essential point of view (due process on the merits), due process is the precondition and ensures that standards are adequate, proportionate, proportionate and balanced. For many, it complies with the principle of proportionality. Due process is one that is “governed by minimum guarantees of resources and results, using appropriate technical and procedural tools and leading to adequate and effective protection”. [2] Due process of law has two dimensions: material (or material) and formal. In a free translation: No free person may be captured, captured or deprived of property or banished or destroyed in any way, and we will never use force against him, and we will never send other people to do so, except in a court case by his colleagues or in accordance with the laws of the land. “(Griffin) 39. Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terre. DA COSTA, Wellington Soares.
Due process. Available in: . An appropriate legal procedure is a principle of law derived from Anglo-Saxon law (and thus from a system other than the Roman or Romano-German traditions) in which any act performed by the authority must follow all the steps provided for by law to be considered valid, effective and complete. This is a principle that has its origin in the first constitution, the Magna Carta, of 1215. [1] The exercise of the jurisdiction conferred on judges throughout the national territory is linked, i.e. it is subject to the limits of the rules constituting due process. In other words, the procedural normative system – consisting of precedents, rules and principles – as well as the determination of the burdens and capacities of the parties, limit the exercise of judicial power by the State, which can only be exercised effectively through procedure and in compliance with the principles and rules that make up the legal order. Due process of law is the principle that guarantees everyone the right to a procedure involving all the steps provided for by law, with all constitutional guarantees. If this principle is not respected, the case is null and void.
Considered the most important constitutional principle, everything else flows from it. This principle is reflected in the Brazilian Political Charter of 1988, art. 5, LIV: “No one shall be deprived of liberty or property without due process.” The Supreme Court has ruled in some extraordinary appeals that due process also applies to private relationships, in particular to ensure a broad defence in proceedings for the exclusion of employees of private institutions. [6] [7] “The logic behind this conclusion is that `in any matter, including labour and administration, the discretion of the administration has insurmountable limits and that the government cannot dictate administrative penalties without providing due process of law`.”[4] An appropriate procedure is the principle that guarantees the process, which is governed by minimum guarantees of funds and results, that is, using appropriate techniques conducive to the protection provided. In addition, due process of law and all other basic guarantees also apply to relations between individuals, regardless of mediation or the determination of the constitutional legislature. This is called the horizontal, private or external effectiveness of fundamental rights. The Supreme Court, which condemns the argument of the applicability of fundamental rights to private relations, has already had the opportunity to annul the law on the private law of civil society, which excluded a partner from its staff without adversarial and broad defence resulting from due process. Check the judge: therefore, the possibility is proposed to use collective jurisdiction as a consequence of the principle of due process to prevent the defense of the rights of the MetaIndividuum and to collectively seek the resulting remedies. Therefore, it should be emphasized that for the effectiveness of the process as an instrument for the concretization of substantive law and the adoption of the right of action, it is essential to respect the rules that embody due process, so that the parties can participate intensively in the formation of the judge`s conviction on an equal footing, which requires special attention in the working process.
When the inequality of the parties is obvious and the author, who insists on the need to receive food money and to allow unconditionally the long wait for a judicial solution, often feels obliged to accept harmful agreements that infringe not only the right to action, but also the dignity of the human person. In this context, it should be noted that the Inter-American Court of Human Rights, when interpreting Article 8 of the ECHR[3], has assumed that judicial guarantees apply to all cases, whether criminal, labour, tax or other matters. The IACHR stressed that: Denying the Office of the Public Defender access to summary proceedings is a restriction of the defence For this reason, due process is divided into two types, substantive and procedural: “Justice rendered by due process as a true legally protected value must be guaranteed in any disciplinary proceedings, and States cannot absolve this obligation, arguing that the guarantees of Article 8 of the AMERICAN Convention do not apply. disciplinary and non-criminal sanctions. To allow States to interpret this interpretation would be consistent with their free will to apply or not the right of everyone to due process” (merit, reparations and costs, § 129, Baena Ricardo v. Panama). In the context of the administrative procedure, a procedure itself has two meanings: (i) a procedure consisting in compliance with the procedures and formalities provided for by law; (i) name relating to the performance of public administration based on adequacy and proportionality without committing excesses.
