amount in some cases (article 33). Besides, the Authority under article 46 can order
the temporary or permanent prohibition of processing, blocking, erasure or total or
partial destruction of data; and the publication of the judgement, at the expense of the
person, in a newspaper close to the place of the infringement and issue a public
warning or censure of the controller of the processing of the data. According to its
2016 Annual Report complaints are rare and the Authority refrained from the use of
its sanctioning powers, opting, in its first couple years of existence, for a more
pedagogic approach.
145 The first procedure in order to determine the existence of an
administrative offence was started only in 2017 and finished with a recommendation
directed at an insurance company.
146 In another case a fine of 2,400,000 CVE (two
point four million escudos), almost US$25,000/€21,795, was applied to the most
important food retailer of the main Island, Santiago.
147
Additionally, the Law on the Protection of Personal Data in the Telecommunication Sector established financial sanctions for certain offences, in particular in
observance of the duty to assure information or to obtain advanced consent before
recording communication or of obligations related to billing and marketing which
can lead to the application of fines from 100,000 CVE (around US$1000/€908) to
1,000,000 CVE (around US$10,000/€9081).
The decisions of these Authorities can be appealed at the Courts through contentious administrative procedures and data subjects have a special constitutional
remedy called Habeas Data, which covers some, if not all, of the data protection
safeguards. Under article 46 of the Constitution, “All citizens shall be granted
Habeas Data to ensure the knowledge of the information contained in files, computer archives and registers that affect them, as well as to be informed about the
purposes of the data and for the same to be rectified or updated”. The Law of 1994 on
Special Constitutional Remedies (Constitutional Complaints and Habeas Data) and
the Constitutional Court Act establish the procedure, which recognises legitimacy of
a person, directly and effectively affected by a denial of access to personal data or a
request to provide information about the purposes of the gathering or of rectification
or actualisation, to appeal, provided that administrative means are exhausted, to the
main court of the land, the Constitutional Court. The decision can order access to the
data by the subject, information and documents to be provided as well as the
rectification and actualisation requested. In the case of non-compliance, government
members are subject to penalties for a crime of responsibility and public servants to
civil, administrative and criminal responsibility, and according to the doctrine
adopted by the Constitutional Court in Judy Ike Hills it would not be strange if it
admitted Habeas Data requests in order to scrutinise the mere gathering of data.
Courts—the Supreme Court initially and after 1999 the Constitutional Court—have
never received a Habeas Data request since 1992.
145 National Authority on Data Protection (2016), p. 9.
146 National Authority on Data Protection, decision of 7 July 2017 (on file with author).
147 National Authority on Data Protection, Process No 053/2018, Sociedade Comercial Calú &
Ângela, Lda, decision of 23 April 2018 (on file with author).
Data Protection in the Internet: Cape Verde’s National Report
105
the temporary or permanent prohibition of processing, blocking, erasure or total or
partial destruction of data; and the publication of the judgement, at the expense of the
person, in a newspaper close to the place of the infringement and issue a public
warning or censure of the controller of the processing of the data. According to its
2016 Annual Report complaints are rare and the Authority refrained from the use of
its sanctioning powers, opting, in its first couple years of existence, for a more
pedagogic approach.
145 The first procedure in order to determine the existence of an
administrative offence was started only in 2017 and finished with a recommendation
directed at an insurance company.
146 In another case a fine of 2,400,000 CVE (two
point four million escudos), almost US$25,000/€21,795, was applied to the most
important food retailer of the main Island, Santiago.
147
Additionally, the Law on the Protection of Personal Data in the Telecommunication Sector established financial sanctions for certain offences, in particular in
observance of the duty to assure information or to obtain advanced consent before
recording communication or of obligations related to billing and marketing which
can lead to the application of fines from 100,000 CVE (around US$1000/€908) to
1,000,000 CVE (around US$10,000/€9081).
The decisions of these Authorities can be appealed at the Courts through contentious administrative procedures and data subjects have a special constitutional
remedy called Habeas Data, which covers some, if not all, of the data protection
safeguards. Under article 46 of the Constitution, “All citizens shall be granted
Habeas Data to ensure the knowledge of the information contained in files, computer archives and registers that affect them, as well as to be informed about the
purposes of the data and for the same to be rectified or updated”. The Law of 1994 on
Special Constitutional Remedies (Constitutional Complaints and Habeas Data) and
the Constitutional Court Act establish the procedure, which recognises legitimacy of
a person, directly and effectively affected by a denial of access to personal data or a
request to provide information about the purposes of the gathering or of rectification
or actualisation, to appeal, provided that administrative means are exhausted, to the
main court of the land, the Constitutional Court. The decision can order access to the
data by the subject, information and documents to be provided as well as the
rectification and actualisation requested. In the case of non-compliance, government
members are subject to penalties for a crime of responsibility and public servants to
civil, administrative and criminal responsibility, and according to the doctrine
adopted by the Constitutional Court in Judy Ike Hills it would not be strange if it
admitted Habeas Data requests in order to scrutinise the mere gathering of data.
Courts—the Supreme Court initially and after 1999 the Constitutional Court—have
never received a Habeas Data request since 1992.
145 National Authority on Data Protection (2016), p. 9.
146 National Authority on Data Protection, decision of 7 July 2017 (on file with author).
147 National Authority on Data Protection, Process No 053/2018, Sociedade Comercial Calú &
Ângela, Lda, decision of 23 April 2018 (on file with author).
Data Protection in the Internet: Cape Verde’s National Report
105