The constitutional guarantees They are the set of means that the National Constitution, understood as the summit of the Laws that a state establishes, makes available to the inhabitants in order to uphold and defend their rights against the authorities, and against other individuals or social groups. They are the mechanism by which the arbitrariness and unilateral nature of the actions of the State are limited and put a stop to it. For example: the fundamental right to defense during the trial.
Constitutional guarantees are also related to the procedural guarantees, which are the security institutions and procedures created in favor of the people, precisely so that they have the means to make effective the enjoyment of their rights.
Scope of application
In general, first parts of the Constitutions they are oriented to declarations, rights and guarantees and they establish which are those that are insured by all persons. Constitutional guarantees contain procedural precautions as well as limitations on public power, and constitute a protection of freedom.
In this sense, one of the areas that offers the greatest constitutional guarantees is that of the legal processes, to the extent that it is observed that not complying with them would expose a person to be deprived of their liberty in an unfair way.
In this last sense, there is a current of thought within the law that is called guarantee, which assumes that the guarantees established by the constitutions are far from being practiced in fact, in most cases.
In fact, the covenants and conventions on Human Rights that lay the foundations for these guarantees are often far from being a reflection of what happens in reality, and rather the legal and penal systems tend to reproduce inequalities of rights. the society.
The guarantee seeks to start from the recognition of the Fundamental rights of individuals, and of their effective protection and guardianship as a cornerstone in the state. The guarantee assumes the existence of powers beyond the individual interaction of individuals, and therefore encompasses a legal dimension as well as a political one. The latter constitutes a typical source of criticism towards guarantors, that are also questioned by the tendency to relativize the crime that his theory entails.
When regimes totalitarian government reach power, one of the typical actions is to suspend constitutional guarantees, precisely to avoid having limits in this practice. This is why collateral is often understood as a tool for society to protect itself.
Examples of constitutional guarantees
- Habeas Corpus, a legal institution that seeks to avoid arbitrary arrests and detentions.
- Habeas Data, the right to access one’s own information in any registry or data bank.
- The appeal for protection, as a legal claim made when certain rights are not fulfilled.
- Equality before the Law, a fundamental guarantee in the rule of law.
- A person cannot be convicted twice for the same act, nor be exposed to the risk of being persecuted for an action for which he has already been dismissed.
- The right to jurisdiction, to a just and reasoned sentence.
- All people have the right not to testify against themselves.
- The presumption of innocence.
- The fundamental right to defense during the trial.
- The right to be tried by competent and impartial judges.
- No one can be deprived of his liberty except by virtue of an order issued by a competent authority.
- The sanction of the Laws is valid for the future, and cannot have an effect on past events.
- Compliance action, the process by which people are protected when authorities are reluctant to fulfill their role.
- The preeminence of the National Constitution over all Laws.
- In this last sense, when a legal norm contradicts constitutional provisions, the courts can be appealed to request that it be rendered ineffective.
- All issues related to avoiding racial discrimination.
- All issues related to avoiding gender violence.
- For children, all the rights enshrined in the Convention on the Rights of the Child.
- All people are protected against torture and other cruel, inhuman or degrading treatment.
- All the rights enshrined in the Universal Declaration of Human Rights.