Brazil 1988 Constitution (reviewed 2017)

TITLE II. FUNDAMENTAL RIGHTS AND GUARANTEES

CHAPTER I. INDIVIDUAL AND COLLECTIVE RIGHTS AND DUTIES

Article 5

Everyone is equal before the law, with no distinction whatsoever, guaranteeing to Brazilians and foreigners residing in the Country the inviolability of the rights to life, liberty, equality, security and property, on the following terms:

1. men and women have equal rights and duties under the terms of this Constitution;
2. no one shall be compelled to do or refrain from doing something except by force of law;
3. no one shall be submitted to torture or to inhuman or degrading treatment;
4. manifestation of thought is free, but anonymity is forbidden;
5. the right of reply is assured, in proportion to the offense, as well as compensation for pecuniary or moral damages or damages to reputation;
6. freedom of conscience and belief is inviolable, assuring free exercise of religious beliefs and guaranteeing, as set forth in law, protection of places of worship and their rites;
7. providing religious assistance at civilian and military establishments for collective confinement is assured, as provided by law;
8. no one shall be deprived of any rights because of religious beliefs or philosophical or political convictions, unless invoked in order to be exempted from a legal obligation imposed upon all by one refusing to perform an alternative service established by law;
9. expression of intellectual, artistic, scientific, and communication activity is free, independent of any censorship or license;
10. personal intimacy, private life, honor and reputation are inviolable, guaranteeing the right to compensation for pecuniary or moral damages resulting from the violation thereof;
11. the home is the individual’s inviolable asylum, and no one may enter it without the dweller’s consent, except in cases of flagrante delicto, disaster or rescue, or, during the day, with a court order;
12. secrecy of correspondence and of telegraphic, data and telephonic communications is inviolable, except, in the latter case, by court order, in the situations and manner established by law for purposes of criminal investigation or the fact-finding phase of a criminal prosecution;
13. exercise of any job, trade or profession is free, observing the professional qualifications that the law establishes;
14. access to information is assured to everyone, protecting the confidentiality of sources when necessary for professional activity;
15. movement within the national territory is free in peacetime, and any person may, as provided by law, enter, remain or leave with his or her assets;
16. all persons may hold peaceful meetings, without weapons, in places open to the public, without need for authorization, so long as they do not interfere with another meeting previously called for the same place, subject only to prior notice to the proper authority;
17. there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;
18. creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations;
19. associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision (trânsito em julgado);
20. no one can be compelled to join an association or to remain in one;
21. when expressly authorized, associations have standing to represent their members judicially and extrajudicially;
22. the right of property is guaranteed;
23. property shall comply with its social function;
24. the law shall establish procedures for expropriation for public necessity or use, or for social interest, upon just and prior compensation in cash, with the exception of cases provided for in this Constitution;
25. in the event of imminent public danger, the proper authority may use private property, assuring the owner subsequent compensation in case of damage;
26. small rural property, as defined by law, whenever worked by a family, shall not be subject to attachment for payment of debts stemming from its productive activities, and the law shall provide for ways to finance its development;
27. authors own the exclusive rights to use, publish or reproduce their own works, and such rights may be transmitted to their heirs for a period fixed by law;
28. the following are assured, as provided by law:
    1. protection of individual participation in collective works and reproduction of human voices and images, including in sports activities;
    2. the right of creators, performers and their respective syndicates and associations to monitor the economic utilization of works that they create or in which they participate;
29. the law shall assure inventors of industrial inventions a temporary privilege for their use, as well as the protection of industrial creations, the ownership of trademarks, company names and other distinctive signs, taking into account social interests and the technological and economic development of the Country;
30. the right of inheritance is guaranteed;
31. inheritance of foreigners’ assets located in the Country shall be governed by Brazilian law, for the benefit of the Brazilian spouse or children, whenever the personal law of the deceased is not more favorable to them;
32. the State shall provide for consumer protection, in accordance with the law;
33. all persons have the right to receive from public agencies information in their private interest or of collective or general interest; such information shall be furnished within the period established by law, under penalty of liability, except for information whose secrecy is essential to the security of society and of the National Government;
34. all persons are guaranteed, without the payment of fees:
    1. the right to petition public authorities in defense of rights or against illegality or abuse of power;
    2. obtaining certificates from government offices for defense of rights and clarification of situations of personal interest;
35. the law may not exclude from review by the Judiciary any injury or threat to a right;
36. no law may impair a vested right, a perfected juristic act or res judicata;
37. there shall be no exceptional courts or tribunals;
38. the institution of the jury is recognized, with the organization given to it by law, assuring;
    1. full defense;
    2. secret voting;
    3. sovereignty of verdicts;
    4. jurisdiction to judge willful crimes against life;
39. there are no crimes unless defined in prior law, nor are there any penalties unless previously imposed by law;
40. the criminal law shall not be retroactive, except to benefit the defendant;
41. the law shall punish any discrimination attacking fundamental rights and liberties;
42. the practice of racism is a non-bailable crime not subject to the statute of limitations and is punishable by imprisonment, as provided by law;
43. the law shall regard as crimes not subject to bail, clemency or amnesty, the practice of torture, illicit trafficking in narcotics and similar drugs, terrorism, and those crimes defined as heinous; liable for these crimes are those giving the commands, those executing these commands, and those who, although able to avoid the crimes, fail to do so;
44. actions of civilian or military armed groups against the constitutional order and the Democratic State are non-bailable crimes for which the statute of limitations never runs;
45. no punishment shall extend beyond the person convicted, but liability for damages and a decree of loss of assets may, as provided by law, extend to successors and be enforced against them up to the limit of the value of the assets transferred;
46. the law shall regulate individualization of punishment and shall adopt, inter alia the following:
    1. deprivation or restriction of liberty;
    2. loss of property;
    3. fine;
    4. alternative social service;
    5. suspension or deprivation of rights;
47. there shall be no penalties:
    1. of death, except in case of declared war, in the terms of art. 84, XIX;
    2. of perpetual character;
    3. of forced labor;
    4. of banishment;
    5. that are cruel;
48. sentences shall be served in separate establishments, according to the nature of the offense, and age and sex of the convict;
49. prisoners are assured respect for their physical and moral integrity;
50. female prisoners shall be assured conditions that allow them to remain with their children during the nursing period;
51. no Brazilian shall be extradited, except for a naturalized Brazilian for a common crime committed prior to naturalization, or proven involvement in unlawful traffic in narcotics and similar drugs, as provided by law;
52. no foreigner shall be extradited for a political or ideological offense;
53. no one shall be tried or sentenced other than by a proper authority;
54. no one shall be deprived of liberty or property without due process of law;
55. litigants in judicial or administrative proceedings and defendants in general are assured an adversary system and a full defense, with the measures and recourses inherent therein;
56. evidence obtained through unlawful means is inadmissible in proceedings;
57. no one shall be considered guilty until his criminal conviction has become final and non-appealable;
58. a civilly identified person shall not be submitted to criminal identification, except in cases provided by law;
59. private prosecution for crimes subject to public prosecution (crimes de ação pública) shall be permitted if a public prosecution is not brought within the period established by law;
60. the law may restrict publicity of procedural acts only if required to defend privacy or the social interest;
61. no one shall be arrested unless in flagrante delicto or by written and substantiated order of a competent judicial authority, except for a military offense or a specific military crime, as defined by law;
62. the arrest of any person and the place where he can be found shall be communicated immediately to the proper judge and to the arrested person’s family or to a person designated by him;
63. one under arrest shall be informed of his rights, including the right to remain silent, and shall be assured assistance of his family and a lawyer;
64. one under arrest has the right to identification of those responsible for his arrest or his interrogation by police;
65. judicial authorities shall direct immediate release of those illegally arrested;
66. no one shall be taken to prison or held therein when the law permits provisional liberty, with or without bond;
67. there shall be no civil imprisonment for debt, except for a person who voluntarily and inexcusably defaults on a support obligation and for an unfaithful depository;
68. habeas corpus shall be granted whenever a person suffers or is threatened with suffering violence or coercion in his freedom of movement through illegality or abuse of power;
69. a writ of security (mandado de segurança) shall be issued to protect a liquid and certain right not protected by habeas corpus or habeas data, when the party responsible for the illegality or abuse of power is a public authority or an agent of a legal entity performing governmental duties;
70. a collective writ of security may be brought by:
    1. a political party represented in the National Congress;
    2. a union, professional organization or association legally organized and operative for at least one year, to defend the interests of its members or associates;
71. a mandate of injunction (mandado de injunção) shall be issued whenever lack of regulatory provisions make exercise of constitutional rights and liberties and the prerogatives inherent in nationality, sovereignty and citizenship unfeasible;
72. habeas data shall be granted:
    1. to assure knowledge of personal information about the petitioner contained in records or data banks of government agencies or entities of a public character;
    2. to correct data whenever the petitioner prefers not to do so through confidential judicial or administrative proceedings;
73. any citizen has standing to bring a popular action to annul an act injurious to the public patrimony or to the patrimony of an entity in which the State participates, to administrative morality, to the environment and to historic and cultural patrimony; except in a case of proven bad faith, the plaintiff is exempt from court costs and from the burden of paying the prevailing party’s attorneys’ fees and costs;
74. the State shall provide full and gratuitous legal assistance to anyone who proves that he has insufficient funds;
75. the State shall compensate anyone convicted by judicial error, as well any person who remains imprisoned for a period longer than that determined by his sentence;
76. the following shall be free of charge for persons recognized as poor, as provided by law:
    1. civil birth certificate;
    2. death certificate;
77. habeas corpus and habeas data proceedings and, as provided by law, acts necessary to the exercise of citizenship, are free of charge;
78. everyone is assured that judicial and administrative proceedings will end within a reasonable time and the means to guarantee that they will be handled speedily.

1. The rules defining fundamental rights and guarantees apply immediately.
2. The rights and guarantees established in this Constitution do not exclude others derived from the regime and principles adopted by it, or from international treaties to which the Federative Republic of Brazil is a party.
3. International treaties and conventions on human rights approved by both houses of the National Congress, in two different voting sessions, by three-fifths votes of their respective members, shall be equivalent to Constitutional Amendments.
4. Brazil submits itself to the jurisdiction of the International Criminal Tribunal to whose creation it has manifested adhesion.

CHAPTER II. SOCIAL RIGHTS

Article 6

Education, health, nutrition, labor, housing, transport, leisure, security, social security, protection of motherhood and childhood and assistance to the destitute, are social rights, as set forth in this Constitution.

Article 7

The following are rights of urban and rural workers, in addition to any others designed to improve their social condition:

1. employment protected against arbitrary dismissal or dismissal without cause, as provided for by complementary law that shall establish severance pay, among other rights;
2. unemployment insurance, in the event of involuntary unemployment;
3. Guarantee Fund for the Length of Service (Fundo de Garantia do Tempo de Serviço);
4. a national uniform minimum wage, fixed by law, capable of meeting a worker’s basic living needs and those of his family, for housing, nourishment, education, health, leisure, clothing, hygiene, transportation and social security, with periodic adjustments to maintain its purchasing power, prohibiting linkage to it as index for any purpose;
5. a salary floor in proportion to the extent and complexity of the work;
6. irreducibility of salaries or wages, except when provided for in a collective agreement or accord;
7. for those receiving variable compensation, a guaranty that the salary or wage will never fall below the minimum wage;
8. a thirteenth-month salary based on full pay or the amount of pension;
9. higher remuneration for nighttime work than for daytime work;
10. wage protection, as provided by law, with intentional retention constituting a crime;
11. participation in profits or results, independent of remuneration, and, exceptionally, participation in management of the company, as defined by law;
12. family allowance for dependents of the low income worker, as provided by law;
13. normal working hours not to exceed eight hours per day and forty-four hours per week, permitting a trade-off of work hours and reduction in the work day through an accord or a collective bargaining agreement;
14. a workday of six hours for work performed in continuous shifts, unless otherwise established by collective bargaining;
15. paid weekly rest, preferably on Sundays;
16. a pay scale for overtime at least fifty percent higher than that for normal work;
17. an annual paid vacation, at a rate at least one-third higher than normal pay;
18. maternity leave without loss of job or wages for a period of one hundred-twenty days;
19. paternity leave, as provided by law;
20. protection of the job market for women through specific incentives, as provided by law;
21. advance notice of dismissal proportional to length of service, with a minimum of thirty days, as provided by law;
22. reduction of risks inherent in the job by means of health, hygiene and safety rules;
23. additional remuneration for strenuous, unhealthy or dangerous work, as provided by law;
24. retirement pension;
25. free assistance for children and dependents from birth to 5 (five) years of age in day-care centers and pre-schools;
26. recognition of collective bargaining accords and agreements;
27. protection because of automation, as provided by law;
28. occupational accident insurance, paid for by the employer, without excluding the employer’s liability for indemnity in the event of malice or fault;
29. a cause of action for amounts due from employment relationships, with a statute of limitations of five years for urban and rural workers, up to a limit of two years after termination of the labor contract;
    1. revoked;
    2. revoked;
30. prohibition of any difference in pay in performance of duties and in hiring criteria by reason of sex, age, color or marital status;
31. prohibition of any discrimination with respect to pay and hiring criteria for handicapped workers;
32. prohibition of any distinction among manual, technical and intellectual work or among the respective professionals;
33. prohibition of nighttime, dangerous or unhealthy work for those under eighteen years of age, and of any work for those under the age of sixteen, except as an apprentice;
34. equal rights for workers with a permanent employment relationship and for occasional workers.

Sole Paragraph

The category of domestic workers is assured the rights set out in subparagraphs IV, VI, VII, VIII, X, XIII, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIV, XXVI, XXX, XXXI and XXXIII, and taking into consideration the conditions established in law and observing the simplification of the performance of the principal and accessory tax obligations, the provisions in the subparagraphs I, II, III, IX, XII, XXV and XXVIII, as well as integration into the social security system.

Article 8

Persons are free to form professional or syndical associations, observing the following:

1. the law may not require State authorization for organization of a syndicate, with the exception of registration with the proper agency, prohibiting the Government from interfering and intervening in syndical organization;
2. creation of more than one syndical organization, of any level, representing a professional or economic category, is forbidden in the same territorial base, which shall be defined by the interested workers or employers; a base may not be less than the area of one County;
3. the syndicate is responsible for defending the collective or individual rights and interests of its category, including judicial or administrative disputes;
4. the general assembly shall fix dues, which, in the case of a professional category, shall be withheld from the payroll, for the funding of the confederative system of respective syndical representation, independent of the contribution provided for by law;
5. no one shall be required to join or to remain a member of a syndicate;
6. syndicates must participate in collective labor bargaining negotiations;
7. retired members shall be entitled to vote and be voted on in syndical organizations;
8. an employee who is a syndicate member may not be dismissed from the moment he registers as a candidate for a leadership or representative position in the syndicate; if elected, even as an alternate, he may not be dismissed until one year after termination of his term of office, unless he commits a serious fault, as provided by law.

Sole Paragraph

Provisions of this article apply to the organization of rural syndicates and fishing colonies, with due regard for conditions established by law.

Article 9

The right to strike is guaranteed; it is up to the workers to decide when to exercise it and upon the interests to be defended thereby.

1. The law shall define which services or activities are essential and shall provide for meeting the community’s non-postponable needs.
2. Parties responsible for commission of abuses shall be subject to the penalties of the law.

Article 10

Participation of workers and employers is assured in the collegiate bodies of governmental agencies in which their professional or social security interests are subjects of discussion and deliberation.

Article 11

In firms with more than two hundred employees, election of an employee representative is assured for the exclusive purpose of promoting direct negotiations with employers.

CHAPTER III. NATIONALITY

Article 12

Brazilians are:

1. by birth:
   1. those born in the Federative Republic of Brazil, even though of foreign parents, provided that they are not in the service of their country;
   2. those born abroad of a Brazilian father or mother, so long as either is in the service of the Federative Republic of Brazil;
   3. those born abroad of a Brazilian father or mother, so long as they are registered at a proper Brazilian governmental office, or come to reside in the Federative Republic of Brazil and opt for Brazilian nationality at any time after reaching the age of majority;
2. by naturalization:
   1. those who, as set forth by law, acquire Brazilian nationality; for persons whose country of origin is Portuguese-speaking, only one uninterrupted year of residence and good moral character are required;
   2. foreigners of any nationality, resident in the Federative Republic of Brazil for more than fifteen uninterrupted years and without any criminal conviction, provided they request Brazilian nationality.

1. Rights inherent to Brazilians shall be attributed to Portuguese permanently resident in the Country if Brazilians are afforded reciprocal treatment, except in cases provided for in this Constitution.
2. The law may not establish any distinction between native born and naturalized Brazilians, except in cases provided for in this Constitution.
3. The following positions are restricted to native born Brazilians:
   1. President and Vice-President of the Republic;
   2. President of the Chamber of Deputies;
   3. President of the Federal Senate;
   4. Minister of the Supreme Federal Tribunal;
   5. the diplomatic career;
   6. officers of the Armed Forces;
   7. the Minister of Defense.
4. Loss of nationality shall be declared for a Brazilian:
   1. whose naturalization has been cancelled by judicial decision because of activity harmful to the national interest;
   2. acquires another nationality, except in the cases:
      1. of recognition of original nationality by foreign law;
      2. of a foreign law imposing naturalization upon a Brazilian residing in a foreign country as a condition for remaining in its territory or for exercise of civil rights.

Article 13

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

1. The symbols of the Federative Republic of Brazil are the national flag, anthem, coat of arms and seal.
2. The States, the Federal District and the Counties may have their own symbols.

CHAPTER IV. POLITICAL RIGHTS

Article 14

Popular sovereignty shall be exercised by universal suffrage, and by direct and secret vote, with equal value for all, and, as provided by law, by:

1. plebiscite;
2. referendum;
3. popular initiative.

1. Voter registration and voting are:
   1. compulsory for persons over eighteen years of age;
   2. optional for:
      1. the illiterate;
      2. those over seventy years of age;
      3. those over sixteen and under eighteen years of age.
2. Foreigners may not register to vote, nor may conscripts during their period of compulsory military service.
3. Conditions for eligibility, according to the law, are the following:
   1. Brazilian nationality;
   2. full exercise of political rights;
   3. voter registration;
   4. electoral domicile in the district;
   5. party affiliation;
   6. minimum age of:
      1. thirty-five years for President and Vice-President of the Republic and Senator;
      2. thirty years for Governor and Lieutenant Governor of a State and the Federal District;
      3. twenty-one years for Federal, State or District Representative, Prefect (Prefeito), Vice-Prefect and justice of the peace;
      4. eighteen years for alderman (Vereador).
4. Persons that cannot register to vote and illiterates are not eligible.
5. The President of the Republic, Governors of the States and the Federal District, Prefects and those that have succeeded or replaced them in the course of their mandates, may be reelected for a single subsequent term.
6. In order to run for other offices, the President of the Republic, Governors of the State and Federal District and Prefects must resign from their respective offices at least six months prior to the election.
7. Spouses and relatives by blood or marriage up to the second degree or by adoption, of the President of the Republic, Governor of a State, Territory, or the Federal District, or a Prefect, or those replacing them during the six months preceding the election, are ineligible in the jurisdictional territory of the incumbent, unless they already hold elective office and are candidates for re-election.
8. A member of the armed forces who can register to vote is eligible under the following conditions:
   1. if he has served for less than ten years, he shall be on leave from military activities;
   2. if he has served for more than ten years, he shall be discharged from military duties by his superiors and, if elected, shall be automatically retired upon taking office.
9. Complementary law shall establish other cases of ineligibility and periods for which it shall remain in force, in order to protect administrative probity, morality for the exercise of the mandate (considering the past life of the candidate), and the normality and legitimacy of elections from the influence of economic power or abuse from holding an office, position or job in the direct or indirect Administration.
10. Elective mandates may be challenged in the Electoral Courts within a period of fifteen days after certification of election, substantiating the suit with evidence of abuse of economic power, corruption or fraud.
11. A suit challenging a mandate shall be conducted in secrecy, and the plaintiff shall be liable, as provided by law, if the suit is spurious or in bad faith.

Article 15

Deprivation of political rights is forbidden; loss or suspension of such rights may occur only in cases of:

1. cancellation of naturalization by a final non-appealable judgment;
2. absolute civil incapacity;
3. so long as the effects of a final non-appealable criminal conviction remain in force;
4. refusal to comply with an obligation imposed upon everyone or to perform alternative service, in accordance with art. 5, VIII;
5. administrative impropriety, in terms of art. 37, § 4°.

Article 16

A law altering the electoral process shall enter into force on its publication date and shall not apply to elections that occur within one year from the date it enters into force.

CHAPTER V. POLITICAL PARTIES

Article 17

Creation, merger, incorporation, and dissolution of political parties is free, with due regard for national sovereignty, the democratic regime, multiplicity of political parties and fundamental human rights, observing the following precepts:

1. national character;
2. prohibition of receipt of financial assistance from foreign entities or governments or subordination to them;
3. rendering of accounts to the Electoral Courts;
4. legislative functioning in accordance with the law.

1. Political parties are assured autonomy in defining their internal structure, organization and operation and in adopting criteria for choosing their regime of electoral affiliation, without requiring linkage among candidates in the national, state, district or county spheres. Party by-laws shall establish rules for party discipline and loyalty.
2. After they have acquired legal capacity, as provided for in civil law, political parties shall register their by-laws with the Superior Electoral Tribunal.
3. Political parties have the right to resources from party funds and to free radio and television time, as provided by law.
4. Political parties are forbidden to utilize paramilitary organizations.