Long before the 1988 Constitution, citizens used other constitutional remedies to obtain such data, such as the arrest warrant and habeas corpus. However, little effect was found this way. 19. The habeas data procedure takes precedence over all judicial acts, with the exception of habeas corpus and warrants. Before the higher court, they should be brought to trial at the first session after the date of distribution, the rapporteur is ready. After this deadline, the prosecutor must appear in five days, and finally, the judge still has five days to announce the verdict. If I accept the habeas date, the judge sets a date by which the office of the coator must provide the data to the citizen. Article 5, LXXII, of the 1988 Federal Constitution provides for the possibility of filing habeas: Summary 2 – Does not correspond to the date of habeas (cf, art. 5, LXXII, letter “a”) if there has been no refusal of information by the administrative authority.
(Summary 2, FIRST SECTION, evaluated on 08.05.1990, DJ 18.05.1990) Habeas data (HD), as stated in previous courses, is one of the remedies that emerged with the promulgation of the Constitution of the Federative Republic of Brazil of 1988 (CRFB/88). Its name is very similar to that of habeas corpus, but its concepts and functions are different. According to Hely Lopes Meirelles, “habeas data is a constitutional action of a civil nature, content and summary rite aimed at protecting the fluid right and certainties of the plaintiff to know all the information and files of his person and the constants of public or private functions available to the public in order to definitively correct his personal data”. Thus, the status of habeas data was enshrined in the Federal Constitution of 1988, inspired by the laws of Portugal, Spain and the United States, which since the 1970s have contained the right of citizens to access personal data in databases registered with State authorities, as indicated in Article 5, point LXXII. For author Firmín Morales Prats, “habeas data, or rights guaranteeing the control of computer identity, implies the recognition of the right to information, the right to rectification, subtraction or cancellation and aggregation of data stored in an electronic file. This list of faculties, derived from the principle of access to the database, includes the so-called “computer freedom” or the right to control data that respects the individual himself (biological, health, academic, family, sexual, political, trade union…) ». Habeas data is a constitutional remedy under Article 5, point LXXII, which aims to ensure that a citizen has access to personal data and information belonging to the Brazilian state or private entities that hold public information. That is, it is the right to know what the government knows (or claims to know) about you.
It can also be triggered to correct inaccurate personal data. Habeas data originated in the Brazilian legal system with the 1988 constitution. It is inspired by the laws of Portugal, Spain and the United States which, since the 1970s, have included the right of citizens to access personal data in government banks. According to Arnoldo Wald and Rodrigo Fonseca, the inclusion of habeas in the constitution was motivated by a political factor: the National Information System (SNI), a database managed by the military regime (1964-1985), collected various information on Brazilian citizens. The corrective action facilitated access to NIS data. “Access to habeas data presupposes, among other conditions of admissibility, the existence of an interest in bringing proceedings. Without the legitimate interest of the action, the exercise of this constitutional remedy becomes impracticable. Proof of prior refusal of the request for access to personal data or of the absence of service is an indispensable condition for the realization of the interest in bringing proceedings on the date of habeas. Without the pre-situation of presumption of resistance, there is a lack of constitutional habeas data measures. The habeas data are positive in the lxxii. Article 5 of the Federal Constitution, which raises two hypotheses of aptitude: (a) access to information; (b) to correct the information.
There is a third hypothesis in Law No 9.507/1997, Article 7(III), which is (c) to supplement the information. Every Brazilian citizen has the right to request a date of habeas. The trial is free, no court fees will be charged. But the citizen must call a lawyer. It is also important to know that the applicant cannot request access to his own data, not from third parties. An exception to this rule occurs in the event that a spouse requests the handing over of data to the deceased partner. Habeas data are not intended to call into question the criteria for correcting evidence The appearance of habeas date occurred during the period of dictatorship that swept through Brazil between 1964 and 1985. Thus, habeas data guarantees access to the requested data within a few days. According to Hely Lopes Meirelles, “the legitimate request for habeas date is exclusively the natural or legal person directly interested in the documents referred to in Inc.
LXXII, “a” and “b” of art. 5 FC. The same author uses the terms habeas data alongside habeas scriptum and habeas mentem, the latter being considered a legal expression of privacy and the first two being synonymous in the sense of the right to control the dissemination of personal data. Any person, natural or legal, may file a petition for habeas for his own benefit. Another difference is noted with respect to HC, as HD can only be used by the person seeking access to your information. It is a very personal act that the doctrine, through the inclusion of confidential information, understands that it is the right to honor. Finally, habeas data plays an essential role in safeguarding the right to privacy and access to personal data, it is a fundamental instrument of respect for fundamental rights and guarantees. The Institute of Habeas Data has its origins in the general legislation of the United States, by the Freedom of Information Act of 1974, amended by the Freedom of Information Reform Act of 1978, to allow the private to access information contained in public or private archives authorized to the public. According to Hely Lopes Meirelles, “the judgements responsible for the trial and the judgment of the habeas date are also indicated in the Constitution, which is also distributed: it is for the Supreme Court to prosecute and judge the dates of habeas decided by the Supreme Courts in a single instance if the decision is rejected (cf. art.
102, II, “a”). Initially, it was for the Supreme Court to prosecute and judge the acts of the President of the Republic, the tables of the Chamber of Deputies and the Federal Senate, the Federal Court of Auditors, the Attorney-General of the Republic and the Supreme Court itself (CF, art. 102, I, d); it is for the Supreme Court to decide the date of habeas against acts of the Minister of State or of the Court itself (cf. art.
