Fundamental Rights and Guarantees


CHAPTER 1: 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:

  1. men and women have equal rights and duties
  2. no one shall be obliged to do or refrain from doing something except by virtue of law
  3. no one shall be submitted to torture or to inhuman or degrading treatment
  4. the expression of thought is free, and anonymity is forbidden
  5. 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
  6. 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
  7. under the terms of the law, the rendering of religious assistance in civil and military establishments of collective confinement is ensured
  8. 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;
  9. the expression of intellectual, artistic, scientific, and communications activities is free, independently of censorship or license;
  10. 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;
  11. the home is the inviolable refuge of the individual, and no one may enter therein without the consent of the dweller, except in the event of flagrante delicto or disaster, or to give help, or, during the day, by court order;
  12. 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; Fundamental Rights and Guarantees
  13. the practice of any work, trade or profession is free, observing the professional qualifications which the law shall establish;
  14. access to information is ensured to everyone and the confidentiality of the source shall be safeguarded, whenever necessary to the professional activity;
  15. 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;
  16. 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;
  17. freedom of association for lawful purposes is fully guaranteed, any paramilitary association being forbidden;
  18. 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;
  19. associations may only be compulsorily dissolved or have their activities suspended by a judicial decision, and a final and unappealable decision is required in the first case;
  20. no one shall be compelled to become associated or to remain associated;
  21. when expressly authorized, associations shall have the legitimacy to represent their members either judicially or extrajudicially;
  22. the right of property is guaranteed;
  23. property shall observe its social function;
  24. 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;
  25. 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
  26. 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;
  27. 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
  28. 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;
  1. 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
  2. the right to inheritance is guaranteed
  3. succession to the estate of foreigners which is located in Brazil shall beregulated 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
  4. the State shall provide, as set forth by law, for the defense of consumers
  5. 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
  6. 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;
  1. the law shall not exclude any injury or threat to a right from the consideration of the Judicial Power
  2. the law shall not injure the vested right, the perfect juridical act and the res judicata;
  3. there shall be no exceptional tribunal or court
  4. 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
  5. there is no crime without a previous law to define it, nor a punishment without a previous legal commination
  6. penal law shall not be retroactive, except to benefit the defendant
  7. the law shall punish any discrimination which may attempt against fundamental rights and liberties
  8. the practice of racism is a non-bailable crime, with no limitation, subject to the penalty of confinement, under the terms of the law
  9. 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
  10. 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
  11. 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;
  12. 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;
  13. 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
  14. the sentence shall be served in separate establishments, according to the nature of the offense, the age and the sex of the convict
  15. prisoners are ensured of respect to their physical and moral integrity;
  16. female prisoners shall be ensured of adequate conditions to stay with their children during the nursing period;
  17. 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
  18. extradiction of a foreigner on the basis of political or ideological crime shall not be granted;
  19. no one shall undergo legal proceeding or sentencing save by the competent authority;
  20. no one shall be deprived of freedom or of his assets without the due process of law
  21. 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
  22. evidence obtained through illicit means are unacceptable in the process;
  23. no one shall be considered guilty before the issuing of a final and unappealable penal sentence
  24. no one who has undergone civil identification shall be submitted to criminal identification, save in the cases provided by law
  25. 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
  26. the law may only restrict the publicity of procedural acts when the defense of privacy or the social interest require it
  27. 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
  28. 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
  29. 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
  30. the arrested person is entitled to identification of those responsible for his arrest or for his police questioning
  31. illegal arrest shall be immediately remitted by the judicial authority
  32. no one shall be taken to prison or held therein, when the law admits release on own recognizance, subject or not to bail
  33. 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
  34. 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
  35. 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
  36. 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;
  1. 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
  2. habeas data shall be granted:
  • a) to ensure the knowledge of information related to the person of the petitioner, contained in records or data banks 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;
  1. 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
  2. the State shall provide full and free-of-charge legal assistance to all who prove insufficiency of funds;
  3. the State shall compensate a convict for judicial error, as well as a person who remains imprisoned for a period longer than the one established by the sentence
  4. 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;
  5. 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;
  6. a reasonable length of proceedings and the means to guarantee their expeditious consideration are ensured to everyone, both in the judicial and administrative spheres.

Paragraph 1. The provisions defining fundamental rights and guarantees are immediately applicable.

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. International human rights treaties and conventions which are approved in each House of the National Congress, in two rounds of voting, by 3/5 of the votes of the respective members shall be equivalent to constitutional amendments. 1

Paragraph 4. Brazil accepts the jurisdiction of an International Criminal Court to

whose creation it has expressed its adhesion.

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