The Objective Dimension of Fundamental Rights: Restriction of Rights as Criminal Protection and Due Process of Law

Abstract

The article examines the objective dimension of fundamental rights and its relationship with the restriction of rights in the field of criminal protection, emphasizing the central role of due process of law as a condition for the legitimacy of state intervention. It begins by distinguishing between the subjective dimension of fundamental rights, aimed at protecting the individual against state interference, and the objective dimension, which imposes positive duties of protection upon the State, both in relation to public authorities and to injuries caused by private parties. In this context, the text argues that the Constitution authorizes and, in certain cases, requires the use of criminal law as an instrument for the protection of legal interests correlated with fundamental rights, through express or implicit mandates of penalization. The author also analyzes the forms of restriction of fundamental rights, distinguishing between directly constitutional restrictions, indirectly constitutional restrictions, and those arising from conflicts between constitutional principles, always under the perspective of proportionality and the preservation of the essential core of rights. Finally, the article demonstrates that the legitimacy of restrictions on fundamental rights depends on the strict observance of due process of law, in both its substantive and procedural dimensions, under penalty of recognition of the unlawfulness or unconstitutionality of the restrictive state act.