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Fundamental Rights and Guarantees

Title II Fundamental Rights and Guarantees

Chapter I Individual and Collective Rights and Duties

Article 5: Equality

All persons are equal before the law, without any distinction whatsoever, and Brazilians and foreigners resident in Brazil are assured of inviolability of the right of life, liberty, equality, security, and property, on the following terms:

I. men and women have equal rights and duties under this Constitution;

II. no one shall be obliged to do or not to do something other than by virtue of law;

III. no one shall be submitted to torture or to inhuman or degrading treatment;

IV. the expression of thought is free, and anonymity is forbidden;

V. the right to answer is ensured, in proportion to the offense, besides compensation for property or moral damages to the image;

VI. freedom of conscience and of belief is inviolable, ensuring the free exercise of religious cults and guaranteeing, as set forth in the law, the protection of places of worship and their rites;

VII. under the terms of the law, the rendering of religious creed or of philosophical or political belief, unless such are claimed for exemption from a legal obligation imposed upon everyone and the person refuses to perform an alternative obligation established by law;

VIII. the expression of intellectual, artistic, scientific and communications activities is free, without any censorship or licence;

IX. the privacy, private life, honor and image of persons are inviolable, and the right to compensation for property or moral damages resulting from the violation thereof is ensured;
X. the home is the inviolable asylum of the individual, and no one may enter it without the dweller's consent, save in the case of "flagrante delicto" or disaster, or to give help, or, during the day, by court order;

XI. the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable, except, in the latter case, by court order, in the events and in the manner established by the law for purposes of criminal investigation or criminal procedural discovery;

XII. the practice of any work, trade or profession is free, observing the professional qualifications which the law may establish;

XIII. access to information is ensured to everyone and confidentiality of the source is protected whenever necessary forthe professional activity;

XIV. locomotion within the national territory is free in times of peace, and any person may, under the terms of the law, enter it, remain in it or leave it with his or her assets;

XV. all persons may hold peaceful meetings, without weapons, in places open to the public, regardless of authorization, provided that they do not frustrate another meeting previously called for the same place, subject only to prior notice to the proper authority;

XVI. full freedom of association for lawful purposes is granted, any paramilitary association being forbidden;

XVII. the creation of associations and, set forth in the law, of cooperatives, does not require any authorization by the state;

XVIII. associations may only be compulsorily dissolved or have their activities suspended by court decision, and, in the first case, only if the decision is final and unappealing;

XIX. no one can be compelled to become associated or to remain associated;

XX. associations, when expressly authorized to do so, are entitled to represent their members in and out of court;

XXI. the right to own property is guaranteed;

XXII. ownership of property shall attend to its social function;

XXIII. the law shall establish the procedure of expropriation for public use or need, or for social interest, against just and prior compensation in money, with the exception of the cases set forth in this Constitution;

XXIV. in the event of imminent public danger, the proper authority may make use of private property, and the owner shall be assured of subsequent compensation, in case of damages;

XXV. small rural properties, as defined by law, whenever they are explored by the family, are not subject to attachment for the payment of debts incurred by reason of their productive activities, and the law shall provide for the means to finance their development;

XXVI. authors have exclusive rights to use, publish or reproduce their works, and such rights may be conveyed to their heirs for the period which the law may establish;

XXVII. under the terms of the law, the following is ensured:
  • protection of individual participation in collective works and of reproduction of the human voice and image, including such with regard to sports activities;
  • the right to the authors, performers, and respective trade unions and associations to monitor the economic exploitation of the works which they create or in which they participate;
XXIX. the law shall assure the authors of industrial inventions of a temporary privilege for their use, as well as protection of industrial creations, of ownership of trade marks, of companies names and of other distinctive signs, with due regard for social interests and for the technological and economic development of Brazil

XXX. the right to inheritance is guaranteed;

XXXI. succession to assets owned by foreigners and located in Brazil shall be governed by Brazilian law, in favor of the Brazilian spouse or children, whenever the personal law of the de cujus is not favorable to them;

XXXII. the State shall provide, as set forth in the law, for the defense of consumers;

XXXIII.all persons are entitled to receive from government agencies information of private interest to such persons or of collective or general interest which shall be provided within the period established by law, subject to liability, with the exception of information whose secrecy is vital to the security of society and of the State;

XXXIV. all persons are ensured, without the payment of fees:
  • the right the petition the public authorities in defending rights or against illegal acts or abuse of power;
  • the obtaining of certificates from government departments, in order to defend rights and clarify situations of personal interest;
XXXV. the law shall not exclude from review by the Judiciary any violation of or threat to a right;

XXXVI. the law shall not impair a vested right, a perfect juridical act, and the principle of res judicata;

XXXVII. there shall be no extraordinary court or tribunal;the institution of the jury is recognized, with the organization attributed to it by the law, and the guarantee of:
  • full defense;
  • secret voting;
  • sovereignty of the verdicts;
  • jurisdiction to adjudicate intentional crimes against life;
XXXIX. there is no crime without a previous law which defines it, nor is there any punishment without a previous legal imposition; any punishment without a previous legal imposition;

XL. the penal law shall not be retroactive, except to the benefit of the defendant;

XLI. the law shall punish any discrimination against fundamental rights and liberties;

XLII. the practice of racism is a crime not entitled to bail or to the statute of limitations, and subject to imprisonment,
according to the law;

XLIII. the law shall consider the practice of torture, unlawful traffic of narcotics and similar drugs, terrorism and crimes defined as heinous crimes to be crimes not entitled to bail and to mercy or amnesty, and the principals, the accessories and those who, although able to avoid them, abstain from doing so, shall be held liable;

XLIV. the acts of civilian or military armed groups, against the constitutional and democratic order, are crimes not entitled to bail or subject to the statute of limitations;

XLV. no sentence shall pass from the person of the convict, but the liability for damages and a decree of loss of assets may, under the terms of the law, be extended to the successors and enforced against them up to the limit of the value of the assets transferred;

XLVI. the law shall regulate the individualization of punishment and shall adopt, inter alia the following:
  • deprivation or restriction of freedom;
  • loss of assets;
  • fines;
  • alternative social obligation;
  • suspension or prohibition of rights;
XLVII. there may be no sentence:
  • of death, except in the event of declared war, according to Article 84 XIX;
  • of life imprisonment;
  • of hard labor;
  • of banishment;
  • which is cruel.
XLVIII. the sentence shall be served in separate establishments, according to the nature of the criminal offence, the age, and the sex of the convict;

XLIX. convicts are assured of respect for their physical and moral integrity;

L. female convicts are allowed to keep their children with them during the period in which they are breast feeding;

LI. no Brazilian may be extradited, except for naturalized Brazilians in the case of a common crime committed before naturalization, or proven involvement in the unlawful traffic of narcotics and similar drugs, as set forth in the law;

LII. extradition of a foreigner for a political or ideological crime may not be granted;

LIII. no one shall be sued or sentenced other than by the proper authority;

LIV. no one may be deprived of his or her freedom or assets without due process of law;

LV. litigants in court or administrative proceedings and defendants in general are assured of the use of the adversary system and of full defense, with the means and remedies inherent thereto;

LVI. evidence obtained through unlawful means is inadmissible in the proceedings;

LVII. no one may be considered guilty until the criminal sentence has become final and unappealing;

LVIII. a person who has undergone civil identification shall not be subjected to criminal identification, except in the cases set forth in the law;

LIX. private prosecution against public offenses shall be admitted if public prosecution is not filed within the period established by law;

LX. the law may only restrict publicity of procedural acts when it is necessary to defend privacy or social interests;

 LXI. no one may be arrested except in flagrante delicto or by written and substantiated order of a proper judicial authority, except in the case of a military offense or a strictly military crime, as defined by law;

 LXII. the arrest of any person and the place where he or she is being held must immediately be communicated to the proper judge and to the arrested person's family or to the person designated by him or her;

LXIII. the arrested person has to be informed of his or her rights, amongst which is the right to remain silent, and the arrested person shall be assured of the assistance of his or her family and of legal counsel;

 LXIV. the arrested person is entitled to identification of the persons responsible for his or her arrest or police interrogation;
an illegal arrest must immediately be remitted by the judicial authority;

LV. no one may be taken to prison or held therein when the law admits release on own recognizance, with or without bail;

 LXVI. there shall be no civil arrest for indebtedness, save for that of a person liable for voluntary and inexcusable default on an alimony obligation and that of an unfaithful trustee;

LXVII. the right to habeas corpus is granted whenever someone suffers or believes he or she is threatened by violence or coercion in his or her freedom of movement, by illegal act, or abuse of power;

LXVIII. a writ of mandamus shall be issued to protect a clear legal right which is not protected by habeas corpus or habeas data, when the party responsible for the illegal act or abuse of power is a public authority or an agent of a legal entity performing government duties;

LIX. a collective writ of mandamus may be filed by:
  • a political party, represented in Congress;
  • a trade union, professional entity, or association legally organized and in operation for at least one year, to defend the interests of its members or associates;
LX an injunction shall be issued whenever the absence of regulations makes it unfeasible to exercise the constitutional rights and liberties and the prerogatives inherent to nationality, sovereignty, and citizenship;

LXI. the right to habeas data is granted:
  • to ensure knowledge of information relating to the person of the petitioner, contained in records or data banks of government entities or of public entities;
  • for the correction of data, if the petitioner does not prefer to do so through confidential, judicial, or administrative proceedings;
LXII. any citizen has standing to institute an action seeking to annul an act to the public property or to property pertaining to an entity in which the State participates, to administrative morality, to the environment, and to historical and cultural monuments, and the plaintiff shall, except in the vent of proven bad faith, be exempt from court costs and from the burden of loss of suit;

LXIII. the State has to provide full and gratuitous legal assistance to whoever proves not to have sufficient funds;

LXIV. the State shall indemnify a person convicted by a judicial error, and also convict who remains imprisoned longer than the period established in the sentence;

LXV. the following shall be gratuitous for persons known to be poor, as set forth in the law:
  • civil registration of birth;
  • death certificates;
LXVI. habeas corpus and habeas data proceedings and, set forth in the law,the acts required to exercise citizenship are gratuitous.
  • The provisions defining fundamental rights and guarantees are applicable immediately.
  • The rights and guarantees established in this Constitution do not preclude others arising out of the regime and the principles adopted by it, or out of international treaties to which the Federative Republic of Brazil is a party.

Chapter II Social Rights

Article 6: Basic principles

Education, health, work, leisure, security, social security, protection of motherhood and childhood, and assistance to the destitute, are social rights under this Constitution.

Article 7: The Rights

The following are rights of city and rural workers, notwithstanding any others that seek to improve their social condition:

I. employment protected against arbitrary dismissal or against dismissal without cause, according to a supplemental law which shall establish severance payment, among other rights;

II. unemployment insurance, in the event of involuntary unemployment;

III. unemployment compensation fund;

IV. a minimum wage nationwide, established by law, capable of satisfying their basic living needs and those of their families with housing, food, education, health, leisure, clothing, hygiene, transportation, and social security, with periodical adjustments to maintain its purchasing power, it being forbidden to bind it for any purpose;

V. a salary floor in proportion to the extent and complexity of the work;

VI. irreducibility of salary or wage, except when provided for in collective agreements or covenants;

VII. guarantee of salary or wage never below the minimum wage, for those receiving variable compensation;

VIII. a thirteenth salary based on the full compensation or on the pension payment;

IX. compensation for night work above that for daytime work;

X. salary protection, as established by law, malicious withholding of a salary being considered a crime;

XI. participation in the profits or results, independent of compensation, and, exceptionally, participation in the management of the company, as defined by law;

XII. family allowance for their dependents;

XIII. normal work hours not exceeding eight hours per day and forty-four hours per week, with the option to set off work hours and reduce the work day through an agreement or a collective bargaining covenant;

XIV. a work day of six hours for work carried out in uninterrupted shifts, unless otherwise established by collective bargaining;

XV. paid weekly leave, preferably on Sundays;

XVI. compensation for overtime work at least fifty per cent above the compensation for normal work;

XVII. annual vacation with compensation at least one third above the normal salary;

XVIII. maternity leave without loss of job and of salary, for a period of one hundred and twenty days;

XIX. paternity leave, under the terms established by law;

XX. protection of the work market for women through specific incentives according to the law;

XXI. prior notice of dismissal in proportion to period of service, but at least thirty days, under the terms of the law;

XXII. reduction of work risks by means of health, hygiene, and safety rules;

XXIII. additional compensation for unhealthy or dangerous work, as established by law;

XXIV. retirement pension;

XXV. gratuitous assistance for the children and dependents from birth to six years of age, in day care centers and kindergartens;

XXVI. recognition of covenants and of collective bargaining agreements;

XXVII. protection by virtue of automation, as established by law;

XXVIII.work accident insurance, under the responsibility of the employer, without excluding the indemnity for which the employer is liable, in the event of malice or fault;

XXIX. legal action for credits arising out of employment, with a statute of limitations:
  • of five years for city workers, up to the limit of two years after ending the employment contract;
  • of up to two years after ending the contract, for rural workers;
XXX. prohibition of any difference in salary, in performance of duties, and in hiring criteria by reason of sex, age, color, or marital status;

XXXI. prohibition of any discrimination with respect to salary and hiring criteria for handicapped workers;

XXXII. prohibition of any distinction between manual, technical, and intellectual labor or between the respective professionals;

XXXIII.prohibition of night, dangerous, or unhealthy work for minors under eighteen years of age, and of any work for minors under fourteen years of age, except as an apprentice;

XXXIV.equal rights for workers with a permanent employment bond and sporadic workers.
  • The category of domestic workers is assured of the rights set forth in Items IV, VI, VIII, XV, XVII, XVIII, XIX, XXI and XXIV, as well as integration into the social security system.

Article 8: Work and trade union

Professional or trade union association is free, with due regard for the following:

I. the law may not require State authorization for a trade union to be founded, except for registration with the proper agency, it being forbidden to the Government to interfere and intervene in trade union organization;

II. it is forbidden to create more than one trade union organization, of any level, representing a professional or economic category, in the same territorial base, which shall be defined by the interested workers or employers, which base may not cover less than the area of one Municipality;

III. it is incumbent upon the trade union to defend the collective or individual rights and interests of the category, including in court or administrative disputes;

IV. the general meeting shall establish the contribution which, in the case of a professional category, shall be discounted from the payroll, to support the confederative system of the respective trade union representation, regardless of the contribution set forth in the law;

V. no one shall be required to become a member or to remain a member of a trade union;

VI. it is compulsory for the trade unions to take part in collective labor bargaining;

VII. retired members shall be entitled to vote and be voted on in trade union organizations;

VIII. dismissal of an employee who is a union member is forbidden as from the moment when he or she registers as a candidate for a position of union leader or representative and, if elected, even as an alternate, until one year after termination of his or her term of office, unless he or she commits a serious fault under the terms of the law.

1. The provisions of this article apply to the organization of rural trade unions and of fishing communities, with due regard for the conditions established by law.

Article 9: Strike

The right to strike is guaranteed, and it is incumbent upon the workers to decide on the advisability of exercising it and on the interests to be defended thereby.

1. The law defines which services or activities are essential and provides for the community's basic needs to be satisfied.

2. In cases of abuse, the responsible parties are to be submitted to the penalties of the law.

Article 10: Representation

The participation of workers and employers is ensured in the collegiate bodies of government agencies in which their professional or social security interests are the subject of discussion and resolution.

Article 11: Authority of the representative

In companies having more than two hundred employees, the election of an employee representative is ensured for the exclusive purpose of furthering direct discussions with their employers.

Chapter III Nationality

Article 12: Brazilian Nationality

The following are Brazilians:

I. by birth:
  • those born in the Federative Republic of Brazil, even if of foreign parents, provided that they are not in the service of their country;
  • those born abroad, of a Brazilian father or a Brazilian mother, provided that either of them is serving the Federative Republic of Brazil;
  • those born abroad, of a Brazilian father or a Brazilian mother, provided that they are registered with a proper Brazilian authority, or those who come to live in Brazil before coming of age and, having come of age, opt for Brazilian nationality at any time;
II. naturalized:
  • those who, as set forth by law, acquire Brazilian nationality, and, for persons originating from Portuguese speaking countries, the only requirement being residence for one uninterrupted year and moral integrity;
  • foreigners of any nationality, resident in the Federative Republic of Brazil for over thirty years uninterruptedly and without any criminal conviction, provided that they apply for Brazilian nationality.
1. The rights inherent to born Brazilians shall be attributed to Portuguese citizens permanently resident in Brazil if Brazilians are afforded reciprocal treatment, except in the events set forth in this Constitution.

2. The law may not establish any distinction between born and naturalized Brazilians, except in the events set forth in this Constitution.

3. Only born Brazilians may hold the office of:

  • President and Vice President of the Republic;
  • President of the House of Representatives;
  • President of the Federal Federal Senate;
  • Justice of the Federal Supreme Court;
  • the diplomatic career;
  • officer of the Armed Forces.
4. Loss of nationality shall be declared for a Brazilian who:
  1. has his naturalization cancelled by court decision by virtue of an activity detrimental to the national interests;
  2. acquires another nationality except in case of:
  • recognition of the original nationality by the foreign legislation;
  • imposition of naturalization by foreign rules, to the Brazilian resident in foreign State, as a condition for him to stay in its territory or for the exercise of civil rights.

Article 13: Language and Federation Symbols

Portuguese is the official language of the Federative Republic of Brazil.

1. The national flag, anthem, coat of arms, and seal are symbols of the Federative Republic of Brazil.

2. The States, the Federal District, and the Municipalities may have symbols of their own.

Chapter IV Political Rights

Article 14: Sovereignty of the People and Political Rights of the Citizens

The sovereignty of the people is exercised by universal suffrage, and by direct and secret ballot, with equal value for all, and, according to the law, by:
  • plebiscite;
  • referendum;
  • initiative of the people.
1. Electoral enrolment and voting are:
  1. compulsory for persons over eighteen years of age;
  2. optional for:
  • illiterate persons;
  • persons over seventy years of age;
  • persons over sixteen and under eighteen years of age.
2. Foreigners cannot register as voters and neither can conscripts during their period of compulsory military service.

3. The conditions for eligibility, according to the law, are the following:
  1. Brazilian nationality;
  2. Full exercise of political rights;
  3. electoral enrolment;
  4. electoral domicile in the district;
  5. membership in a political party;
  6. the minimum age of:
  • thirty five years for President and Vice President of the Republic and Senator;
  • thirty years for Governor and Vice Governor of a State and of the Federal District;
  • twenty-one years for Federal, State or District Representative, Mayor, Vice Mayor, and Justice of Peace;
  • eighteen years for City Councilman.
4. Persons that are illiterate or cannot register as voters are not eligible.

5. The President of the Republic, the State and Federal District Governors, the Mayors and those that have succeeded them or replaced them during the six months preceding the election, are not eligible to the same offices in the subsequent term.

6. In order to run for other offices, the President of the Republic, the State and Federal District Governors, and the Mayors shall resign from their respective offices at least six months before the election.

7. The spouse and relatives by blood or marriage up to the second degree, or by adoption, of the President of the Republic, of the Governor of a State or Territory, or of the Federal District, of a Mayor or those that have replaced them during the six months preceding the election, are not eligible in the jurisdiction of the incumbent, unless they already hold an elective office and are candidates for re-election.

8. An active member of the armed forces who can register as voter is eligible under the following conditions:
  • if he has served for less than ten years, he shall be on leave from military activities;
  • if he has served for more than ten years, he shall be discharged of military duties by his superiors and, if elected, he shall be automatically retired upon investiture.
9. A supplemental law shall establish other cases of ineligibility and the periods for such ineligibility to cease, in order to protect normal and legitimate elections from the influence of economic power or abuse in the exercise of an office, position, or job in the direct or indirect administration.

10. Exercise of an elective office may be challenged before the Electoral Courts within a period of fifteen days after investiture, substantiating the suit with evidence of abuse of economic power, corruption, or fraud.

11. The suit challenging the office shall be conducted in secrecy and the plaintiff is liable under the law if the suit is reckless or involves manifest bad faith.

Article 15: Suspension of Political Rights

Disfranchisement of political rights is forbidden, and loss or suspension of such rights shall apply only in the event of:

I. cancellation of naturalization by a final and unappealable judgement;

II. absolute civil incapacity;

III. final and unappealable criminal sentence, as long as its effects last;

IV. refusal to comply with an obligation imposed upon everyone or an alternative obligation, according to Article 5 VIII;

V. administrative dishonesty, according to Article 37 (4).

Article 16: Electoral Procedure Laws

The law that alters the electoral procedure comes into force on the date of its publication, and does not apply to the elections that take place within one year of it being in force.

Chapter V Political Parties

Article 17: Political Association

The creation, consolidation, merger and extinction of political parties is free, with due regard for national sovereignty, the democratic regime, plurality of political parties, the fundamental rights of the individual, and observing the following precepts:

I. national character;

II. prohibition from receiving financial assistance from a foreign entity or government or from subordination to same;

III. rendering of accounts to the Electoral Courts;

IV. operation in Congress according to the law.
  • Political parties are assured of autonomy in defining their internal structure, organization, and operation, and their bylaws shall establish rules of party loyalty and discipline.
  • After acquiring legal capacity under civil law, political parties shall register their bylaws at the Superior Electoral Court.
  • Political parties are entitled to funds from the party fund and to gratuitous access to radio and television, as set forth in the law.
  • Political Parties are forbidden to use paramilitary organizations.
 
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