The guarantee of data sigil as a constitutional rule is a recent disposition, for it was brought by the Republican Constitution of 1988. Came along with this innovation, several doubts and juridical consequences. The Complementary Law nº 105/2001, disposes about the sigil of the financial institutions' operations. This complementary law was regulated by the Decree nº 3.724/2001, concerning to the acquisition, access and use, by the Federal Revenue Secretary, of informations related to operations and services of the financial institutions and entities compared to them.
The inviolability of data (Republican Constitution, article 5th, XII) complements the prevision to the right of intimacy and private life (article 5th, X). Both privacy preservation previsions are ruled by the principle of exclusivity, which assures to the individual his identity before the risks provided by the equalized social pressing and incontrasted impositivity of political power. An exclusive thing is what passes through the personal options, affected by the individual subjectively and that is not guided by objective rules nor patterns. Thus, in the recess of privacy hides the intimacy. The intimacy doesn't demand publicity because it does not involve third parties' rights. In the ambit of privacy, intimacy is the most exclusive of its rights.
Therefore, the defense of privacy must protects men, at least, against:
1) the interference in his private, familiar and domestic privacy;
2) the meddling with his physical or mental integrity, or with his intellectual and moral freedom;
3) the attacks against his honour and reputation, or placing him under a false perspective;
4) the communication of embarrassing and relevant facts related to his intimacy;
5) the use of his name, identity and portrait;
6) the espionage and lurk;
7) the interference in his correspondence;
8) the bad utilization of written and oral information; and,
9) the diffusion of advertisement given or taken in virtue of profession sigil.
Concerning to this necessity of human privacy protection, it's needed to highlight that the banking and fiscal informations, whether the constant in the financial institutions themselves or in the Federal Revenue or similar public organs, are all part of the private life of a physical or juridical persons.
It's impossible to reach the protection of intimacy with the simultaneous vigilance exerced on the bank account or the expenses made with credit cards by the citizen, because the donation made by a political party or a religious sect could be identified by the treasury organs that would be unmasking a secret will of the well-deserving (benemeritu). Since the delayed payment of a credit card factura or duplicate, due to financial difficulties or the existence of a bank debit balance, the Union could have knowledge if there was a break of the bank and crediting sigils, involving, if not the communication to other organs or the application of diligences, at least the knowledge of relevant and embarrassing facts related to intimacy.
Several bank informations are provided by the Postal Service (extracts, bills to pay, voucher of deposit, etc), as well as data referent to the Federal Revenue (confirmation of the restitution or debit remainder to the public treasury), that if they weren't protected by the bank and fiscal sigil, respectively, it would configure a disrespect of correspondence inviolability.
Equally to the bank sigil, the informations related to the fiscal sigil can only be trespassed as an exceptional character and in the restricted legal limits, because the declarations given for the purpose of income tax are revested by sigil character, and only exceptional motives justify the possibility of accessing them by third parties, to which is essential the judicial authorization, to stand by the Justice's interest.
The Public Power, through the annual income declarations sent to the Public Revenue, obtains data related to private life and business of all its contributors, whether they are physical or juridical persons. These informations, in thesis are accurate and rigorous declarations of income and patrimony, are protected by the constitutional guarantee of sigil about the contributors' wealth situation. Therefore, there's no doubt that the disrespect of the sigil constitutionally tutelated would generate the violation of several constitutional guarantees.
No comments:
Post a Comment