ordered the exclusion of that evidence that was essential to the condemnation of the
suspect.
2.2 The Notion of Personal Data
2.2.1 A Right to Data Protection and Its Legal Nature
The original version of current article 45 of the Constitution did not contain a
formula explicitly acknowledging the existence of a right to data protection.
Hence, at least in an explicit manner, a reference to the recognition of a subjective
right to data protection or to legal positions related to it was, in general, lacking,
though it could be inferred for the limitation of treatment of sensitive data recognised
by the Basic Law and the reference to Habeas Data, both present in that version.
However, in 1999, an amendment inserted a precept establishing that “1. All citizens
shall have the right of access to computerised data that affects them and for the same
to be rectified and updated, as well as the right to be informed about the purposes of
the data, in the terms of the law”. From a constitutional point of view, it recognised a
subjective right to personal data protection, though through a very limited and not
very clear legal construct.
The interpretation of this norm in the sense of the recognition of the right to data
protection was operated by administrative and, specially, judicial decision. Despite
the flaws of the abovementioned constitutional construction, in its first opportunity
to deal with the matter, the Constitutional Court, in an already mentioned case, the
Request by the President of the Republic to the Constitutional Court of Advisory
Opinion in Order to Preventively Scrutinize Norms of the Criminal Investigation
Organization Act, was also not absolutely fluid in its position, because it opted for
reviewing the legislative norm under the right to image, the right to speech and the
right to intimacy of private life. In the explicit ratio decidendi used to justify the
decision, it abstained from mentioning that right, limiting itself to underscoring a
violation of the “rights to image, to speech and intimacy of private life”.
68 Nevertheless, without clearly mentioning it, a constitutional guarantee attached to the
rights of protection of personal data, was recognised at least implicitly.
On the other hand, the National Authority on Data Protection was more consistent
in considering the existence of a personal data protection right,
69 though without
much development, and recently in Judy Ike Hills v. Supreme Court of Justice, the
Constitutional Court, stressing its self-proclaimed role in adjusting the rights system
68 Advisory Opinion No 1/2007, of 6 September, Request by the President of the Republic to the
Constitutional Court of Advisory Opinion in Order to Preventively Scrutinize Norms of the
Criminal Investigation Organization Act, p. 666.
69 For instance, in one of its annual reports it mentioned a fundamental right to data protection
(National Authority on Data Protection 2017, p. 6; National Authority on Data Protection 2016,
p. 2).
Data Protection in the Internet: Cape Verde’s National Report
87
suspect.
2.2 The Notion of Personal Data
2.2.1 A Right to Data Protection and Its Legal Nature
The original version of current article 45 of the Constitution did not contain a
formula explicitly acknowledging the existence of a right to data protection.
Hence, at least in an explicit manner, a reference to the recognition of a subjective
right to data protection or to legal positions related to it was, in general, lacking,
though it could be inferred for the limitation of treatment of sensitive data recognised
by the Basic Law and the reference to Habeas Data, both present in that version.
However, in 1999, an amendment inserted a precept establishing that “1. All citizens
shall have the right of access to computerised data that affects them and for the same
to be rectified and updated, as well as the right to be informed about the purposes of
the data, in the terms of the law”. From a constitutional point of view, it recognised a
subjective right to personal data protection, though through a very limited and not
very clear legal construct.
The interpretation of this norm in the sense of the recognition of the right to data
protection was operated by administrative and, specially, judicial decision. Despite
the flaws of the abovementioned constitutional construction, in its first opportunity
to deal with the matter, the Constitutional Court, in an already mentioned case, the
Request by the President of the Republic to the Constitutional Court of Advisory
Opinion in Order to Preventively Scrutinize Norms of the Criminal Investigation
Organization Act, was also not absolutely fluid in its position, because it opted for
reviewing the legislative norm under the right to image, the right to speech and the
right to intimacy of private life. In the explicit ratio decidendi used to justify the
decision, it abstained from mentioning that right, limiting itself to underscoring a
violation of the “rights to image, to speech and intimacy of private life”.
68 Nevertheless, without clearly mentioning it, a constitutional guarantee attached to the
rights of protection of personal data, was recognised at least implicitly.
On the other hand, the National Authority on Data Protection was more consistent
in considering the existence of a personal data protection right,
69 though without
much development, and recently in Judy Ike Hills v. Supreme Court of Justice, the
Constitutional Court, stressing its self-proclaimed role in adjusting the rights system
68 Advisory Opinion No 1/2007, of 6 September, Request by the President of the Republic to the
Constitutional Court of Advisory Opinion in Order to Preventively Scrutinize Norms of the
Criminal Investigation Organization Act, p. 666.
69 For instance, in one of its annual reports it mentioned a fundamental right to data protection
(National Authority on Data Protection 2017, p. 6; National Authority on Data Protection 2016,
p. 2).
Data Protection in the Internet: Cape Verde’s National Report
87