By: Fred Jankilevich
Attorney At Law
Following up on recent publications carried out by a few University of Costa Rica Law and IT Professors, pertaining the transparency of Data for Employees in printed national mediums, I beg to digress. While, section 24 of the Costa-Rican Magna Carta states that private documents are non-breachable and communications, both written and oral are private, Section 24 also states that: “The law will determine the cases whereby the justice tribunals will be allowed to order the sequester, registration or examination of such said private documents, when it becomes absolutely indispensable to clarify matters submitted to their knowledge.” Therefore, while the belief that there is an unalienable right to intimacy exists and is translated into practice by both legislators and magistrates, its also possible to infer from a limited interpretation of the aforementioned legal instrument that: i) There are instances where the breach of private communications can be justified to advance a legal agenda ii) That the faculties to undergo forensic revision of communications is predetermined by law.
While resolution 6774-94 (SCJ: 1994) is an important precedent relative to the issue in question, its important to go further back and dwell into the original text used for this matter, SCJ Resolution from 14:30:00 hrs. of April 13th 1984. The cited text reads: ” Private interest is (…) the individual convenience of one person before the other, as well as the those juxtaposed in favor of the social collective…” Therefore, as the legislator proposes, in order to be able to speak of private information its an indispensable requirement that the person, whether an individual or a company, be in the private realm. In this sense, and as a result of pragmatic inference from the legislators’ perspective, its possible to digress from a legal and technical point of view about recent academic publications by UCR faculty that protect the privacy and secrecy of communications as inalienable rights that are held at the same level as the freedom of transit. While the secrecy of communications is relevant and a matter that requires proper legal practice, there are spheres that in exercise must be better traced and defined. In other words, there is a private sphere and a public sphere. Furthermore, the public sphere of the law cannot be treated in the same way as the private sphere of the law.
The cited resolution from 1984 also reflects the tendency of the national Courts to determine the legality or lack thereof to initiate the breach of privacy for forensic or legal proceedings upon the manifestation of Free Will of the party in question. In a lawsuit before a Court, the issue is whether the person has been serviced for the forensic process and how he/she have been serviced. In a private matter, such as an Employer/Employee relationship, the matter in question is determined by the stipulations of the Employment Agreement, the accessory agreements thereto and the governing labour laws thereof.
Nevertheless, when dealing with the public sphere as opposed to the private sphere, its important to raise relevant questions, that perhaps have the tendency to be dropped very fast due to the nature of the Costa-Rican legal tradition. If you state, there are issues of National Security involved, the Supreme Court Magistrate will tell you, based on precedent, that the Right to Privacy comes first. If you state that there is a necessity for due process, legal theorists and academics will invoke book after book of doctrine justifying the right to privacy as an inalienable, fundamental right juxtaposed above the legislative instruments as one pertaining to international treatises and the Magna Carta.
While at the National Level Resolutions 2007-011054 and 2006-017380 (SCJ) set precedent for the rights to secrecy and privacy to be supported in the form of unalienable fundamental freedoms, the Founding Board of the Second Republic in its original intent of 1949, does leave room for new precedents and further interpretation. In the words of one of the most prominent present Supreme Court of Justice Magistrates: “Constitutional parameters are programmatic.” Therefore, what is undisputed now may not be so in the near future.