Act 172-13, on personal data protection (the so-called Habeas Data Act) has the purpose of providing full protection over personal data lodged in files, public registers, data banks and other technical means of data handling, designed to generate reports, for both public and private use.

This law has been viewed as unconstitutional ever since it was passed, inasmuch as some of its articles were understood to restrict citizens’ rights. So it is with Article 4, which prevents persons affected by incorrect or false information on the data bases of the State’s intelligence bodies from accessing the same in order to correct or erase this information, as they have the right to do under Articles 44 and 70 of the Republic’s Constitution.

Action of unconstitutionality

On this basis, an appeal on the grounds of a direct action of unconstitutionality was brought by the Fundación Prensa y Derecho Inc., the Dominican Human Rights Council [Consejo Dominicano de Derechos Humanos] and the Civic Alliance for Fundamental Rights [Alianza Ciudadana para los Derechos Fundamentales], against Articles 4.2; 5.6c); 8; 10.4; 25.13; 29; 40 and 88 of the afore-mentioned Habeas Data Law.

The petitioners’ demands in their appeal were as follows:

• That a ruling be made with an interpretation of Articles 4.2; 5.6c); 8; 10.4; 25.13; and 40, to bring them into line with the Constitution;
• That an exhortative, or advisory, sentence be handed down regarding Article 29, so that the functions attributed to the Banking Authority be assigned to an independent institution and conditional upon the protection of fundamental rights;
• That Article 88 be declared unconstitutional, on the grounds that it infringes the principle of criminal legality.

Analysis of the Sentence

Turning to Articles 4.2 and 40 of the Law, the Sentence recognises the right of citizens to access the personal data files created by the Armed Forces and the State’s security bodies, provided that they are not related to a current investigation.

The Constitutional Court has ruled that the restrictions set out in these articles are only applicable if access to personal information may represent an obstacle to carrying out their functions on the part of the State's investigation and intelligence bodies.

With regard to Articles 10 and 25, regulating the procedure for exercising the right to access information, the Court has decided that the administrative procedure that the data owner follows is optional and, as such, the user will not need to exhaust the administrative process before opting for the judicial one.

Article 88 of the Law was declared legally valid, although an interpretation of the expression “current minimum wages”, used to calculate the fine applicable in the event of infringing the provisions in the law, was considered necessary.  The sentence finds the expression “vague, imprecise and non-specific”, since it is unclear which of the minimum wages should be used to calculate the fine applicable, given that the National Wage Committee has set several minimum wage rates for the private sector, but only one for the public sector.

The Court made the clarification that the fines imposed by a Court awarding a claim based on infringing the Habeas Data Law should use the public sector minimum wage to make the calculation.

With regard to Articles 5.6c); 8 and 29, the Court declared they were constitutionally valid.

Positive legislator

With this interpretative ruling the Constitutional Court has become a positive legislator, inasmuch as it did not limit itself to issuing a ruling about the articles at issue, but has recast them, so that they are in line with the current Constitution. The National Congress will thus not need to modify the Habeas Data Law to adapt its articles to the Court’s decision.

The ruling has been accepted by the different players in the nation’s wider society, since it confirms citizens’ constitutional rights, respects their honour and integrity, and allows them to access their personal data recorded in data banks and by the security services, so that they can demand that this data be rectified, using both administrative and judicial procedures, as necessary. It also enables those judges who are ruling on cases of claiming infringements against the Habeas Data Law to dispense justice with legal certainty.