Understanding Article 5 of the Brazilian Constitution: Rights and Principles
Article 5 of the Brazilian Constitution: Key Provisions
Recently added to our legal system through a Constitutional Amendment, Article 5 of the 1988 Constitution aligns with contemporary international law. Here’s a breakdown of some key aspects:
Fundamental Rights and Guarantees
- E) The Principle of Speedy Trial: This principle is now enshrined in the Constitution.
- B) Inviolability of the Judiciary: There is an exception to the inviolability of a judge’s home, which can be violated upon your order. *This statement requires further context and clarification as it appears to contradict fundamental principles.*
- C) Rights of Incarcerated Mothers: Inmates are provided conditions to stay with their children during the nursing period.
- C) Property Rights and Social Function: Property rights are enforced in combination with the concept of the social function of property. *The statement about “Occupy farm banker villain” appears to be out of context and unrelated to the legal discussion.*
- D) Federal Police Actions and Presumption of Innocence: The stance of the Federal Police is presented as correct and compliant with the principle of innocence, stating that nobody will be arrested except in *flagrante delicto* or by a written and substantiated order from a competent judicial authority.
- D) International Human Rights Treaties: Brazil’s Federal Constitution prescribes that only international treaties and conventions on human rights approved with a quorum equivalent to a Constitutional Amendment shall have the force and effect of Constitutional Amendments.
- E) The Jury System: The institution of the jury is recognized, guaranteeing full defense, secret voting, the sovereignty of verdicts, and competence to judge crimes against life, regardless of public outcry. *The reference to the Isabella Nardoni case is a specific example.*
Secrecy and Privacy
- A) Secrecy of Communications: The secrecy of correspondence, telegraphic data, and telephone communications is inviolable, except in the latter case by court order, in cases and in the manner provided by law for purposes of criminal investigation or criminal procedure. *This refers to the issue of illegal wiretaps mentioned in a report.*
Legal Principles and the Structure of Government
- The Introductory Law to the Civil Code (LICC) contains general principles on standards. In case of gaps, the LICC provides mechanisms for the integration of standards, such as analogy, customs, and general principles of law.
- The Enlightenment of the eighteenth century broke with absolutist power and revived the idea of democracy.
- Brazil is divided into three branches: Executive, Legislative, and Judicial, independent and harmonious among themselves.
Judicial Review and Constitutional Amendments
Judicial Review is an instrument that, through review, seeks to protect or prevent [rights violations].
- The Direct Action of Unconstitutionality has *Erga Omnes* duration (binding for all).
- According to national doctrine, our Constitution is regarded as inelastic because it can be modified only by complying with requirements of greater solemnity, such as an absolute majority quorum for voting on the amendment and the need for a vote in both chambers.
Right to Privacy and State of Defense
Item XI of Article 5 of the Constitution enshrines the fundamental right to [privacy, specifically home inviolability].
- In a case where there is a state of defense, the same way, authorizes the search and seizure at home in order of administrative authority; *This statement needs careful consideration and legal verification, as it might contradict other constitutional guarantees.*
Legal Remedies
Regarding the writ of mandamus, *habeas corpus*, and *habeas data*, among the alternatives, *Habeas Data* is the remedy to ensure the liberty of coming and going in the higher courts. *This statement is incorrect. Habeas Corpus protects the freedom of movement. Habeas Data protects the right to access and correct personal information held by government entities or private entities performing public services.*