Title 5 Chapter 1

The Defense of the State Icon

November 20, 2021

Section 1: The State of Defense

Article 136. The President of the Republic may, after hearing the Council of the Republic and the National Defense Council, decree a state of defense to preserve or to promptly re-establish, in specific and restricted locations, the public order or the social peace threatened by serious and imminent institutional instability or affected by major natural calamities.

Paragraph 1. The decree instituting the state of defense shall determine the period of its duration, shall specify the areas to be encompassed and shall indicate, within the terms and limitations of the law, the coercive measures to be in force from among the following:

  1. restrictions to the rights of: a) assembly, even if held within associations; b) secrecy of correspondence; c) secrecy of telegraph and telephone communication;
  2. in the event of a public calamity, occupation and temporary use of public property and services, the Union being liable for the resulting damages and costs. Paragraph 2. The state of defense shall not exceed thirty days and it may be extended once for an identical period if the reasons that justified its decreeing persist. Paragraph 3. During the period in which the state of defense is in force:
  3. arrest for a crime against the State, determined by the party executing the measure, shall be immediately communicated by such party to the competent judge, who shall remit it if it is illegal, it being the arrested person’s choice to request examination of corpus delicti from the police authority;
  4. the communication shall be accompanied by a statement by the authority as to the physical and mental state of the arrested person at the time of the filing of the charges;
  5. the imprisonment or detention of any person shall not exceed ten days, unless authorized by the Judicial Power;
  6. incommunicability of the arrested person is forbidden. Paragraph 4. Upon decreeing a state of defense or extension thereof, the President of the Republic shall, within twenty-four hours, submit the act with the respective justification to the National Congress, which shall decide by absolute majority. The Organization of the Powers 103Paragraph 5. If the National Congress is in recess, it shall be called extraordinarily within five days. Paragraph 6. The National Congress shall examine the decree within ten days as from receipt thereof, and shall remain in operation as long as the state of defense is in force. Paragraph 7. If the decree is rejected, the state of defense shall cease immediately.

Section 2: The State of Siege

Article 137. The President of the Republic may, after hearing the Council of the Republic and the National Defense Council, request authorization from the National Congress to decree the state of siege in the event of:

  1. serious disturbance with nationwide effects or ocurrence of facts that evidence the innefectiveness of a measure taken during the state of defense;
  2. declaration of state of war or response to foreign armed agression.

The President of the Republic shall, on requesting authorization to decree the state of siege or to extend it, submit the reasons that determine such request, and the National Congress shall decide by absolute majority.

Article 138. The decree of the state of siege shall specify the period of its duration, the rules required to implement it and the constitutional guarantees that are to be suspended and, after it is published, the President of the Republic shall designate the executor of the specific measures and the areas encompassed.

Paragraph 1. In the event of article 137, I, the state of siege may not be decreed for more than thirty days nor may each extension exceed such period; in the event of item 2 , it may be decreed for the entire period of the war or foreign armed aggression.

Paragraph 2. If authorization to decree the state of siege is requested during parliamentary recess, the President of the Federal Senate shall immediately summon an extraordinary session of the National Congress to convene within five days in order to examine the act.

Paragraph 3. The National Congress shall remain in session until the end of the coercive measures.

Article 139. During the period in which the state of siege decreed under article 137, I, is in force, only the following measures may be taken against persons:

  1. obligation to remain at a specific place;
  2. detention in a building not intended for persons accused of or convicted for common crimes;
  3. restrictions regarding the inviolability of correspondence, the secrecy of communications, the rendering of information and the freedom of press, radio broadcasting and television, as established by law;
  4. suspension of freedom of assembly; 104
  5. home search and seizure;
  6. intervention in public utility companies;
  7. requisitioning of property. The broadcasting of speeches made by Congressmen in their Legislative Houses is not included in the restrictions of item III, if authorized by the respective Directing Board.

Section 3: General Provisions

Article 140. The Directing Board of the National Congress shall, after hearing the party leaders, designate a Committee comprised of five of its members to monitor and supervise the implementation of the measures concerning the state of defense and the state of siege.

Article 141. Once the state of defense or the state of siege ceases, its effects shall also cease, without prejudice to liability for illicit acts performed by the executors or agents thereof. As soon as the state of defense or the state of siege ceases, the measures applied during the period while it is in force shall be reported by the President of the Republic in a message to the National Congress, with specification and justification of the actions taken, with the listing of the names of those affected and indication of the restrictions applied.