Los datos religiosos en el marco del tratamiento jurídico de los datos de carácter personal [Medalla de la Sociedad de Condueños a la mejor tesis 2010-2011 en su ámbito de conocimiento]

Zusammenfassung

The protection of personal data has become in recent years in a matter of great importance in the Spanish legal field. The power of control over our personal data policy has its support in the Organic Act 15/1999 of 13 December, on the Protection of Personal Data. Our research has focused on the study of a special protected data: the religious information. It has therefore been necessary from the regulation to which the data are subject sensitive or specially protected and their different strengths based on its constitutional merits. The analysis of Article 7 of Organic Act 15/1999, and Article 16 of the Spanish Constitution and the exegesis of the various doctrinal positions on the scope of protection of religious freedom, we have supported the study to address the personal data revealing religious beliefs. Since 2005 has become an important one manifestation inherent within the fundamental right of religious freedom: the right to abandon one’s religion. This event is the reverse of the right to profess religious beliefs freely choose or not to profess any logic and is a projection of individual religious freedom, since everyone has the right to embrace other than religious belief and, therefore, abandon that had, or just leave that was not to profess any religious belief. However, a right long recognized by International Law and our own –Spanish Constitution and the Organic Act of Religious Freedom–, has given rise to many conflicts caused by the application thereto of the laws that protect personal data. In particular, conflict situations have arisen in connection with the exercise of the right to abandon the religion professed by persons baptized in the Catholic Church. In principle, the falling away (apostasy) as total rejection of the Catholic faith, is given in Canon Law and does not require the intervention of any ecclesiastical body. Notwithstanding the foregoing, Canon Law has sought to provide legal certainty that the faithful that right has through the development of a formal procedure for abandonment of the Catholic faith, a procedure that follows the guidelines established by the Pontifical Council for Legislative Texts in 2006. Problems have arisen where the Organic Act on the Protection of Personal Data has been invoked in order to achieve the cancellation of the evidence in the entries in the baptismal registry alleging, inter alia, that such books file share definition provided by Organic Act 15/1999. The SpanishAgency for Data Protection at the time of settling claims for protection of rights received in this debate, has argued from the outset, the inclusion of baptismal records in the field of law enforcement, considering that baptism is data that reveals the person's religious beliefs. This approach is endorsed by the National Court through its judgment of 10 October 2007, to order the appellant religious organization to meet the request for cancellation materialized by a marginal note in the baptismal registry. However, the Supreme Court in a judgment of 19 September 2008, which followed many others in the same line, pronounced in the sense of understanding that the books of baptism cannot be categorized as files and, therefore fall outside the laws that protect personal data. In our research we have used as legal sources national, international and canon law, to reveal which areas of the protection of personal data fall under the umbrella of state law and what areas of freedom religious belonging to the autonomous regulation of religious law. To this end, the methodology has been to analyze the many legal opinions issued by the Spanish Agency for Data Protection on this topic, in order to discern whether a given data, by itself or as the context in which it is to be used, or not there is the nature of religious data. The review of the judgments of the National Court and the Supreme Court regarding the participation or not the data of baptism as a religious figure, has helped us to conclude that the books of baptism cannot be categorized as files, in terms of Organic Act 15/1999, to not meet the defining elements to be conceptualized as such. Also, the study of judicial pronouncements of Ecclesiastical doctrine and Canonical rules, has served to affirm that baptism data does not reveal the condition of Catholic, and that this condition is achieved only with the full communion with the Church Roman Catholic. Finally, we conclude that this issue must be resolved from facing mutual respect for the autonomy of civil and religious orders, and tried not to force the implementation of data protection laws to areas reserved for other fundamental rights, such as the right of religious freedom in their collective side.