BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

it would allow the judge a wide margin of discretion to remove a rule, when considering it justifiable, in the face of a more important principle, which would result in high legal uncertainty. After abstracting such problem, it is indisputable that the constitutional precepts focused on the decision under criticism – article 37, caput and article 5, paragraph XXXIII – are applicable, to some extent, to the factual situation underlying the judgment, that is, the legitimacy of the nominal disclosure of the salaries of public servants, since they advocate the disclosure of information relating to the Public Administration, in order to make it as transparent as possible. However, it should be examined whether the constitutional precept that guarantees the inviolability of privacy (article 5, item X) was not also an incident to the sub examen case , which would lead to a normative conflict that could not be forgotten by the Federal Supreme Court, at least for a resolution of the case with dogmatic rigor and fidelity to the unity of the constitutional legal order. The understanding that prevailed in the judgment of RE n. 652,777 was in the sense that the nominal disclosure of public servant salaries on the internet does not affect their right to secrecy and privacy. It was pointed out that there is only one “apparent conflict” – no actual fact – because the disclosure of the gross compensation of the employees constitutes information of collective or general interest, whereas the privacy, private life and personal security of the employees would not be expressly foreseen exceptions in the final part of item XXXIII of article 5, which deals only with the security of the State and of society. In fact, the final part of item XXXIII of article 5 anticipates a restriction on the fundamental right to obtain information of particular or collective interest from public entities, which does not contemplate the disclosure of salaries of employees, whose secrecy is aprivate interest of the employee. In the meantime, it cannot be considered that absolutely all exceptions to the fundamental right in such issue should be expressly anticipated in the same normative statement, especially since the legislature does not have the possibility to anticipate in which situations the right granted may come into conflict with other rights of the same hierarchy. It can not be denied, therefore, that such a fundamental right may come to conflict with other rights of the same stature enunciated in various provisions of the Federal Constitution itself. To think otherwise would be a denial of one of the main features of fundamental rights which is essential for practical understanding in cases of collision. In this order of reasoning, it is essential to verify if the elements of the fundamental right to privacy and private life reach the hypothesis in question. It is not the purpose of this article to carry out a detailed investigation of the emergence and historical evolution of the right to privacy and private life. Rather, it is important to limit how modern constitutional dogmatics understand it. Doneda 6 explains that the 4. Nominal Disclosure of Public Servants’ Expenses: Violation of the Fundamental Right to Privacy?

6 DONEDA, D.: From privacy to protection of personal data. Rio de Janeiro: Renovar, 2006, p. 67.

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