Garantías del derecho a la protesta social en Colombia: una propuesta desde el garantismo ferrajoliano

Abstract

The right to protest is now viewed as a necessary right for contemporary democracies. Furthermore, this right has attained the status of a fundamental human right in numerous international treaties, conventions, and constitutional texts from many countries around the world. Therefore, this paper begins by embracing this foundational comprehension of the right to protest, aiming to conduct a comprehensive examination of this human right through the lens of Luigi Ferrajoli's garantismo, a theory that emerged during the constitutionalization of law following the Second World War. The constitutionalization of law then sought to establish the supremacy of the Constitution and the materialization of fundamental rights, and garantismo is a theory and episteme built in this direction. Why do we study fundamental rights from the perspective of garantismo? Garantismo holds that to defend fundamental rights, it is necessary to establish first and second-degree guarantees in the legal system. The former indicates prerogatives in favor of each right and the latter demands their effectiveness when the former is disregarded. Hence, this study examines the fundamental right to protest from a guarantee perspective, and the primary research objective is to scrutinize these guarantees -primary and secondary- for the protection and defense of this fundamental right in our country. With this objective in mind, an exhaustive study was carried out in the jurisprudence of the Constitutional Court and the Inter-American Human Rights System.