CONSTITUTION OF BRAZIL
See also:
TITLE II - FUNDAMENTAL RIGHTS AND
GUARANTEES
CHAPTER I - INDIVIDUAL AND COLLECTIVE RIGHTS AND DUTIES
Article 5. All persons are equal before the law, without any
distinction whatsoever, Brazilians and foreigners residing in the country
being ensured of inviolability of the right to life, to liberty, to equality,
to security and to property, on the following terms:
I - men and women have equal rights and duties under the terms of this Constitution;
II - no one shall be obliged to do or refrain from doing something except 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, anonymity being forbidden;
V - the right of reply is ensured, in proportion to the offense, as well as
compensation for property or moral damages or for damages to the image;
VI - freedom of conscience and of belief is inviolable, the free exercise of
religious cults being ensured and, under the terms of the law, the protection
of places of worship and their rites being guaranteed;
VII - under the terms of the law, the rendering of religious assistance in civil
and military establishments of collective confinement is ensured;
VIII - no one shall be deprived of any rights by reason of religious belief or
philosophical or political conviction, unless he invokes it to exempt himself
from a legal obligation required of all and refuses to perform an alternative
obligation established by law;
IX - the expression of intellectual, artistic, scientific, and communications
activities is free, independently of censorship or license;
X - the privacy, private life, honour and image of persons are inviolable,
and the right to compensation for property or moral damages resulting from
their violation is ensured;
XI - the home is the inviolable refuge of the individual, and no one may enter
therein without the consent of the dweller, except in the events of flagrante
delicto or disaster, or to give help, or, during the day, by court
order;
XII - the secrecy of correspondence and of telegraphic, data and telephone communications
is inviolable, except, in the latter case, by court order, in the cases
and in the manner prescribed by law for the purposes of criminal investigation
or criminal procedural finding of facts;
XIII - the practice of any work, trade or profession is free, observing the professional
qualifications which the law shall establish;
XIV - access to information is ensured to everyone and the confidentiality of
the source shall be safeguarded, whenever necessary to the professional
activity;
XV - locomotion within the national territory is free in time of peace, and
any person may, under the terms of the law, enter it, remain therein or
leave it with his assets;
XVI - 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 competent authority;
XVII - freedom of association for lawful purposes is fully guaranteed, any paramilitary
association being forbidden;
XVIII - the creation of associations and, under the terms of the law, that of cooperatives
is not subject to authorization, and State interference in their operation
is forbidden;
XIX - associations may only be compulsorily dissolved or have their activities
suspended by a judicial decision, a final and unappealable decision
being required in the former case;
XX - no one shall be compelled to become associated or to remain associated;
XXI - when expressly authorized, associations shall have the legitimacy to represent
their members either judicially or extrajudicially:
XXII - the right of property is guaranteed;
XXIII - property shall fulfill its social function;
XXIV - the law shall establish the procedure for expropriation for public necessity
or use, or for social interest, with fair and previous pecuniary compensation,
except for the cases provided in this Constitution;
XXV - in case of imminent public danger, the competent authority may make use
of private property, provided that, in case of damage, subsequent compensation
is ensured to the owner;
XXVI - the small rural property, as defined by law, provided that it is exploited
by the family, shall not be subject to attachment for the payment of debts
incurred by reason of its productive activities, and the law shall establish
the means to finance its development;
XXVII - the exclusive right of use, publication or reproduction of works rests
upon their authors and is transmissible to their heirs for the time the
law shall establish;
XXVIII - under the terms of the law, the following are ensured:
a) protection of individual participation in collective works and of reproduction
of the human image and voice, sports activities included;
b) the right to authors, interpreters and respective unions and associations
to monitor the economic exploitation of the works which they create or
in which they participate;
XXIX - the law shall ensure the authors of industrial inventions of a temporary
privilege for their use, as well as protection of industrial creations,
property of trademarks, names of companies and other distinctive signs,
viewing the social interest and the technological and economic development
of the country;
XXX - the right to inheritance is guaranteed;
XXXI - succession to the estate of foreigners which is located in Brazil shall
be regulated by the Brazilian law in favour of the Brazilian spouse or
children, whenever the personal law of the deceased is not more favourable
to them;
XXXII - the State shall provide, as set forth by law, for the defense of consumers;
XXXIII - all persons have the right to receive, from the public 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, except for the information whose secrecy is essential to the
security of society and of the State:
XXXIV - the following are ensured to everyone without any payment of fees:
a) the right to petition the Government in defense of rights or against illegal
acts or abuse of power;
b) the obtaining of certificates from government offices, for the defense
of rights and clarification of situations of personal interest;
XXXV - the law shall not exclude any injury or threat to a right from the consideration
of the Judicial Power;
XXXVI - the law shall not injure the vested right, the perfect juridical act and
the res judicata
XXXVII - there shall be no exceptional tribunal or court:
XXXIX - the institution of the jury is recognized, according to the organization
which the law shall establish, and the following are ensured:
a)full defense;
b)secrecy of voting;
c)sovereignty of verdicts;
d)power to judge willful crimes against life;
XL - there is no crime without a previous law to define it, nor a punishment
without a previous legal commination;
XLI -penal law shall not be retroactive, except to benefit the defendant;
XLII - the law shall punish any discrimination which may attempt against fundamental
rights and liberties;
XLII - the practice of racism is a non-bailable crime, with no limitation, subject
to the penalty of confinement, under the terms of the law;
XLIII - the practice of torture, the illicit traffic of narcotics and related drugs,
as well as terrorism, and crimes defined as heinous crimes shall be considered
by law as non-bailable and not subject to grace or amnesty, and their principals,
agents and those who omit themselves while being able to avoid such crimes
shall be held liable;
XLIV - the action of armed groups, either civil or military, against the constitutional
order and the democratic state is a non-bailable crime, with no limitation;
XLV - no punishment shall go beyond the person of the convict, and the obligation
to compensate for the damage, as well as the decreeing of loss of assets
may, under the terms of the law, be extended to the successors and executed
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
the following, among others:
a) deprivation or restriction of freedom;
b) loss of assets;
c) fine;
d) alternative rendering of social service;
e) suspension or deprivation of rights;
XLVII - there shall be no punishment:
a) of death, save in case of declared war under the terms of article 84, XIX;
b) of life imprisonment;
c) of hard labour;
d) of banishment;
e) which is cruel;
XLVIII - the sentence shall be served in separate establishments, according to the
nature of the offense, the age and the sex of the convict;
XLIX - prisoners are ensured of respect to their physical and moral integrity;
L - female prisoners shall be ensured of adequate conditions to stay with their
children during the nursing period;
LI - no Brazilian shall be extradited, except the naturalized ones in the case
of a common crime committed before naturalization, or in the case there
is sufficient evidence of participation in the illicit traffic of narcotics
and related drugs, under the terms of the law;
LII - extradition of a foreigner on the basis of political or ideological crime
shall not be granted;
LIII - no one shall undergo legal proceeding or sentencing save by the competent
authority;
LIV - no one shall be deprived of freedom or of his assets without the due process
of law;
LV - litigants, in judicial or administrative processes, as well as defendants
in general, are ensured of the adversary system and of full defense, with
the means and resources inherent to it;
LVI - evidence obtained through illicit means are unacceptable in the process;
LVII - no one shall be considered guilty before the issuing of a final and unappealable
penal sentence;
LVIII - no one who has undergone civil identification shall be submitted to criminal
identification, save in the cases provided by law;
LIX - private prosecution in the cases of crimes subject to public prosecution
shall be admitted, whenever the latter is not filed within the period established
by law;
LX - the law may only restrict the publicity of procedural acts when the defense
of privacy or the social interest require it;
LXI - no one shall be arrested unless in flagrante delicto or by a written and
justified order of a competent judicial authority, save in the cases of
military transgression or specific military crime, as defined in law;
LXII - the arrest of any person as well as the place where he is being held shall
be immediately informed to the competent judge and to the family of the
person arrested or to the person indicated by him;
LXIII - the arrested person shall be informed of his rights, among which the right
to remain silent, and he shall be ensured of assistance by his family and
a lawyer;
LXIV - the arrested person is entitled to identification of those responsible
for his arrest or for his police questioning;
LXV - the illegal arrest shall be immediately remitted by the judicial authority;
LXVI - no one shall be taken to prison or held therein, when the law admits release
on own recognizance, subject or not to bail;
LXVII - there shall be no civil imprisonment for indebtedness except in the case
of a person responsible for voluntary and inexcusable default of alimony
obligation and in the case of an unfaithful trustee;
LXVIII - habeas corpus shall be granted whenever a person suffers or is in
danger of suffering violence or coercion against his freedom of locomotion,
on account of illegal actions or abuse of power;
LXIX - a writ of mandamus shall be issued to protect a clear and perfect right,
not covered by habeas corpus or habeas data, whenever the
party responsible for the illegal actions or abuse of power is a public
official or an agent of a corporate legal entity exercising duties of the
Government;
LXX - a collective writ of mandamus may be filed by:
a)a political party represented in the National Congress;
b) a union, a professional association or an association legally constituted
and in operation for at least one year, to defend the interests of its
members or associates;
LXXI - a writ of injunction shall be granted whenever the absence of a regulatory
provision disables the exercise of constitutional rights and liberties,
as well as the prerogatives inherent to nationality, sovereignty and citizenship;
LXXII - habeas data shall be granted:
a)to ensure the knowledge of information related to the person of the petitioner,
contained in records or databanks of government agencies or of agencies
of a public character;
b) for the correction of data, when the petitioner does not prefer to do so
through a confidential process, either judicial or administrative;
LXXIII - any citizen is a legitimate party to file a people's legal action with
a view to nullifying an act injurious to the public property or to the
property of an entity in which the State participates, to the administrative
morality, to the environment and to the historic and cultural heritage,
and the author shall, save in the case of proven bad faith, be exempt from
judicial costs and from the burden of defeat;
LXXIV - the State shall provide full and free-of-charge legal assistance to all
who prove insufficiency of funds;
LXXV - the State shall indemnify a convict for judicial error, as well as a person
who remains imprisoned for a period longer than the one established by
the sentence;
LXXVI - for all who are acknowledgedly poor, the following is free of charge, under
the terms of the law:
a) civil birth certificate;
b) death certificate;
LXXVII - habeas corpus and habeas data proceedings and, under the
terms of the law, the acts necessary to the exercise of citizenship are
free of charge;
LXVIII - to all, in judicial and administrative proceedings, are assured a reasonable duration of proceedings and the means to guarantee the celerity of proceedings.
Paragraph 1. The provisions that define the fundamentals rights and guarantees have immediate appliation.
Paragraph 2. The rights and guarantees expressed in this Constitution
do not exclude others deriving from the regime and from the principles
adopted by it, or from the international treaties in which the Federative
Republic of Brazil is a party.
Paragraph 3. The international treaties and conventions on Human Rights which are approved, in each House of National Congress, in two rounds, by three fifths of votes of the respective members, will be equivalent to Constitutional Ammendments.
Paragraph 4. Brazil shall be submitted to the jurisdiction of International Penal Tribunal to which creation it had manifested agreement.
CHAPTER II - SOCIAL RIGHTS
Article 6. Education, health, work, habitation, leisure, security, social
security, protection of motherhood and childhood, and assistance to the
destitute, are social rights, as set forth by this Constitution.
Article 7. The following are rights of urban and rural workers,
among others that aim to improve their social conditions:
I - employment protected against arbitrary dismissal or against dismissal without
just cause, in accordance with a supplementary law which shall establish
severance-pay, among other rights;
II - unemployment insurance, in the event of involuntary unemployment;
III - severance-pay fund;
IV - nationally unified minimum wage, 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 use it as an index for any purpose;
V - a salary floor in proportion to the extent and complexity of the work;
VI - irreducibility of the wages, except when established in collective agreement
or covenant;
VII - guarantee of wages never below the minimum one, for those receiving variable
pay;
VIII - year-end one-salary bonus based on the full pay or on the amount of the
pension;
IX - payrate for night-shift work higher than that for daytime work;
X - wage protection, as provided by law, with felonious withholding of wages
being a crime;
XI - participation in the profits or results, independent of wages, and, exceptionally,
participation in the management of the company, as defined by law;
XII - family allowance, to be paid on behalf of the dependents of the low income worker, as defined by law;
XIII - normal working hours not exceeding eight hours per day and forty-four hours
per week, with the option of compensating working hours and reducing the
length of the workshifts through an agreement or a collection bargaining covenant;
XIV - a workday of six hours for work carried out in continuous shifts, unless otherwise
established by collective negotiation;
XV - paid weekly leave, preferably on Sundays;
XVI - rate of pay for overtime at least fifty per cent higher than that of normal
work;
XVII - annual vacation with remuneration at least one third higher than 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 labour market for women through specific incentives,
as provided by law;
XXI - notice of dismissal in proportion to the length of service of at
least thirty days, as provided by law;
XXII - reduction of work related risks by means of health, hygiene and safety
provisions;
XXIII - additional remuneration for strenuous, unhealthy or dangerous work, as
established by law;
XXIV - retirement pension;
XXV - free assistance for children and dependents from birth to six years of
age, in day-care centres and pre-school facilities;
XXVI - recognition of collective bargaining agreements and covenants;
XXVII - protection on account of automation, as established by law;
XXVIII - occupational accident insurance, to be paid for by the employer, without
excluding the employer's liability for indemnity in the event of malice
or fault;
XXIX - legal action with respect to credits arising from employment relationships
with a prescription of five years for urban and rural workers, up to the limit of two years after the end of the employment contract;
XXX - prohibition of any difference in wages, in the performance of duties and
in hiring criteria by reason of sex, age, colour or marital status;
XXXI - prohibition of any discrimination with respect to wages and hiring criteria
of handicapped workers;
XXXII - prohibition of any distinction between manual, technical and intellectual
work or among 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 for sporadic
workers.
Sole paragraph - The category of domestic servants is ensured of the
rights set forth in items IV, VI, VIII, XV, XVII, XVIII, XIX, XXI and XXIV,
as well as of integration in the social security system.
Article 8. Professional or union association is free, with due regard
to the following:
I - the law may not require authorization of the State for a union to be founded,
except for authorization for registration with the competent agency, it
being forbidden to the Government the interference and the intervention
in the union;
II - it is forbidden to create more than one union, at any level, representing
a professional or economic category, in the same territorial base, which
shall be defined by the workers or employers concerned, and which may
not cover less than the area of one municipality;
III - it falls to the union to defend the collective or individual rights and
interests of the category, including legal or administrative disputes;
IV - the general assembly 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 union representation, regardless
of the contribution set forth by law;
V - no one shall be obliged to join or to remain a member of a union;
VI - the collective labor bargainings must be held with the participation of
unions;
VII - retired members shall be entitled to vote and be voted on in unions;
VIII - the dismissal of a unionised employee is forbidden from the moment of
the registration of his candidacy to a position of union direction or representation
and, if elected, even if as a substitute, up to one year after the end
of his term in office, unless he commits a serious fault as established
by law.
Sole paragraph - The provisions of this article apply to the organization
of rural unions and those of fishing communities, with due regard for the
conditions established by law.
Article 9. The right to strike is guaranteed, it being the competence
of workers to decide on the advisability of exercising it and on the interests
to defended thereby.
Paragraph 1. The law shall define the essential services or activities and
shall provide with respect to the satisfaction of the community's undelayable
needs.
Paragraph 2. The abuses committed shall subject those responsible to
penalties of the law.
Article 10. The participation of workers and employers is ensured
in collegiate bodies of government agencies in which their professional
or so security interests are subject of discussion and resolution.
Article 11. It is ensured, in companies with more than 200 employees,
the election of a representative of the employees for the exclusive purpose of
furthering direct negotiations with the employers.
CHAPTER III - NATIONALITY
Article 12. The following are Brazilians:
I - by birth:
a) those born in the Federative Republic of Brazil, even if of foreign parents,
provided that they are not at the service of their country;
b) those born abroad, of a Brazilian father or a Brazilian mother, provided
that either of them is at the service of the Federative Republic of Brazil:
c)those born abroad, of a Brazilian father or a Brazilian mother, provided
that they come to reside in the Federative Republic of Brazil and opt for
the Brazilian nationality at any time;
II - naturalized:
a) those who, as set forth by law, acquire Brazilian nationality, it being
the only requirement for persons originating from Portuguese-speaking countries
the residence for one uninterrupted year and good moral repute;
b) foreigners of any nationality, resident in the Federative Republic of Brazil
for over fifteen uninterrupted years and without criminal conviction, provided
that they apply for the Brazilian nationality.
Paragraph 1. The rights inherent to Brazilians shall be attributed to Portuguese
citizens with permanent residence in Brazil, if there is reciprocity in
favour of Brazilians, except in the cases stated in this Constitution.
Paragraph 2. The law may not establish any distinction between born and
naturalized Brazilians, except in the cases stated in this Constitution.
Paragraph 3. The following offices are exclusive for born Brazilians:
I - those of President and Vice-President of the Republic;
II - that of President of the Chamber of Deputies;
III - that of President of the Federal Senate;
IV - that of Justice of the Supreme Federal Court;
V - those of the diplomatic career;
VI - that of officer of the Armed Forces.
VII - Minister of Defense.
Paragraph 4. Loss of nationality shall be declared for a Brazilian who:
I - has his naturalization cancelled by court decision on account of an activity
harmful to the national interests;
II - acquires another nationality, save in the cases:
a) of recognition of the original nationality by the foreign law;
b) of imposition of naturalization, under the foreign rules, to the Brazilian
resident in a foreign State, as a condition for permanence in its territory,
or for the exercise of civil rights.
Article 13. Portuguese is the official language of the Federative
Republic of Brazil.
Paragraph 1. The national flag, anthem, coat of arms and seal are the
symbols of the Federative Republic of Brazil.
Paragraph 2. The states,
the Federal District and the municipalities may have symbols of their own.
CHAPTER IV - POLITICAL RIGHTS
Article 14. The sovereignty of the people shall be exercised by universal suffrage and by the direct and secret
voting, with equal value for all, and, according to the law, by means of:
I - plebiscite;
II - referendum;
III - people's initiative.
Paragraph 1. Electoral enrollment and voting are:
I - mandatory for persons over eighteen years of age;
II - optional for:
a) the illiterate;
b) those over seventy years of age;
c) those over sixteen and under eighteen years of age.
Paragraph 2. Foreigners cannot register as voters and neither can conscripts
during their period of compulsory military service.
Paragraph 3. The conditions for eligibility, according to the law, are:
I - the Brazilian nationality;
II - the full exercise of the political rights;
III - the electoral enrollment;
IV - the electoral domicile in the electoral district;
V - the membership in a political party;
VI - the minimum age of:
a) thirty-five years for President and Vice-President of the Republic and
Senator;
b) thirty years for Governor and Vice-Governor of a state and of the Federal
District;
c) twenty-one years for Federal Deputy, State or District Deputy, Mayor, Vice-Mayor
and justice of the peace:
d) eighteen years for City Councilman.
Paragraph 4. The illiterate and those that cannot be registered as voters
are not eligible.
Paragraph 5. The President of the Republic, the State and Federal District
Governors, the Mayors and those who have succeeded or replaced them during
their terms of office may be reelected for only one subsequent term.
Paragraph 6. In order to run for other offices, the President of the
Republic, the State and Federal District Governors and the Mayors have
to resign from their respective offices at least six months in advance
of the election.
Paragraph 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 of those who have replaced them within 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.
Paragraph 8. A member of the Armed Forces that can be registered as
voter is eligible if the following conditions are met:
I - if he has less than ten years of service, he shall have to take leave from
military activities;
II - if he has more than ten years of service, he shall be discharged of military
duties by his superiors and, if elected, he shall automatically pass into
retirement upon the issuing of the official certificate of electoral victory.
Paragraph 9. In order to protect the administrative probity, morality for
the exercise of the office, the previous life of the candidate being considered,
and the normality and legitimacy of the elections against the influence
of the economic power or of the abuse in the holding of office, position
or job in the direct or indirect public administration, a supplementary
law shall establish other cases of ineligibility and the periods for such
ineligibilities to cease.
Paragraph 10. The exercise of an elective mandate may be impugned before
the Electoral Courts within a period of fifteen days after the date of
the issuing of the of ficial certificate of electoral victory, substantiating
the suit with evidence of abuse of economic power, corruption or fraud.
Paragraph 11. The procedure of the suit impugning the office shall be
secret, and the plaintiff shall be liable under the law if the suit is
reckless or involves manifest bad faith.
Article 15. Disfranchisement of political rights is forbidden,
the loss or suspension of which 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, for as long as its effects last;
IV - refusal to comply with an obligation imposed upon everyone or to render an
alternative service, according to article 5. VIII;
V - administrative dishonesty, according to article 37, paragraph 4.
Article 16.
The law that alters the electoral procedure shall come
into force the date of its publication, and shall not apply to the elections
that take place within one year of it being in force.
CHAPTER V - POLITICAL PARTIES
Article 17. The creation, amalgamation, merger and extinction
of political parties is free, with due regard for national sovereignty,
the democratic regime, the 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 the National Congress in accordance with the law.
Paragraph 1. Political parties are ensured of autonomy to define their
internal structure, organization and operation, and to adopt the criteria of selection and regime of their electoral coalitions, without obligation of vinculation between the candidacies in national, State, Federal Distric or municipal levels, and their by-laws shall
establish rules of party loyalty and discipline.
Paragraph 2. After acquiring corporate legal status under civil law,
political parties shall register their by-laws at the Superior Electoral
Court.
Paragraph 3. Political parties are entitled to monies from the party
fund and to free-of-charge access to radio and television, as established
by law.
Paragraph 4. Political parties are forbidden to use paramilitary organizations.
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