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Inter-American Human Rights System: The Pact of San José and the Brazilian Constitution

A comparison between the Pact of San José of Costa Rica and the Brazilian Federal Constitution (CF) of 1988 shows several similarities. The foundations of the Inter-American Convention on Human Rights, or Pact of San José, are basically the same as those contained in the Brazilian Constitution, where the fundamental rights of citizens are prominent.

Article 1 of the Convention, as well as section IV of article 3 of the Brazilian Constitution, prohibits discrimination based on race, color, sex, language, religion, political opinions or that of any other nature, national or social origin, economic position, birth or any other social condition.

Article 2 of the Convention stipulates that legislative or other measures necessary to give effect to the rights and freedoms set forth in the Convention must be adopted. The text corresponds to the provisions of article 5 of the 1988 Constitution, which guarantees to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, providing instruments to guarantee this effectiveness, such as habeas corpus, writ of mandamus, popular action, among others.

Article 3 of the Convention guarantees the right to recognition of legal personality, while article 5, LXXVI, of the Constitution makes civil birth registry free of charge. Article 4 of the Convention defines the right to life, including imposing restrictions on the application of the death penalty in those countries that applied it before the pact, as well as article 5, XLVII, of the Brazilian Magna Carta, which prohibits the use of the death penalty, except in case of declared war.

Article 5 of the Convention establishes the right to personal integrity, including those deprived of personal liberty, provided for in article 5, XLIX, of the Federal Constitution, which guarantees prisoners respect for their physical and moral integrity.

The Convention (Article 6) also provides that no one shall be compelled to perform forced or compulsory labor, in accordance with the provisions of the Brazilian Constitution, which prohibits the application of the penalty of forced labor. Articles 7 and 8 of the Convention provide for rights pertaining to personal liberty and judicial guarantees in relation to paragraphs LIII (principle of the natural judge), LIV (principle of due process of law), LV (principle of due process of law) and LVII (principle of innocence) of article 5 of the CF.

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