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Kobzon protects the right to privacy. The right to privacy: how it is exercised and what threatens violators

Chapter
24.05.2021

Text of Art. 23 of the Constitution of the Russian Federation as amended for 2020:

1. Everyone has the right to inviolability of private life, personal and family secrets, protection of his honor and good name.

2. Everyone has the right to privacy of correspondence, telephone conversations, postal, telegraph and other messages. Limitation of this right is allowed only on the basis of a court decision.

Commentary on Art. 23 of the Constitution of the Russian Federation

The inviolability of the private life of citizens is one of the most important elements of the legal status of a person and a citizen.

Relations between people in the sphere of personal life are regulated mainly by the norms of morality. Therefore, the right to inviolability of private life, personal and family secrets consists of a number of powers that provide a citizen with the opportunity to be out of service, out of an industrial environment in a state of certain independence from the state and society, as well as legal guarantees of non-interference in the implementation of this right. The right to privacy is expressed in the freedom of communication between people on an informal basis in the spheres of family life, family and friendship ties, intimate and other personal relationships. The way of thinking, worldview, hobbies and creativity are also manifestations of private life.

The right to privacy is a multifaceted concept. In modern conditions, this right finds itself in many life manifestations. Spatial and verbal-sensual forms of expression of private life are traditional. Spatial includes restrictions on intrusion into a home, a workplace, freedom of communication in public places without outside supervision. Verbal-sensual presupposes the inadmissibility of intrusion into intimate life, family and moral relations.

The main elements of the institution of privacy of citizens are reflected in Art. 12 of the Universal Declaration of Human Rights, according to which “no one may be subjected to arbitrary interference with his personal and family life, arbitrary attacks on the inviolability of his home, the secrecy of his correspondence or his honor and reputation. Everyone has the right to be protected by the law from such interference or such encroachments. "

Under the inviolability of private life, the Constitution of the Russian Federation and federal legislation mean non-interference in private life, inviolability of personal and family secrets (secrets of private life). The degree of individual freedom in the state, democracy and humanity of the political regime existing in it depend on the level of guaranteed preservation of the secrets of the private life of citizens.

The right to privacy is guaranteed by such constitutional and other legal provisions as the right to privacy of correspondence, telephone conversations, postal, telegraph and other messages, the limitation of which is allowed only on the basis of a court decision (part 2 of article 23 of the Constitution of the Russian Federation), the right to dispose of family budget, personal property and monetary contributions, the secrecy of which is guaranteed by law.

The inviolability of private life means a prohibition for the state, its bodies and officials to interfere in the private life of citizens, the existence of legal mechanisms and guarantees of protection from all encroachments on privacy, honor and reputation.

In the modern period, with the increasing role of information in the life of every person, more and more researchers specifically highlight the informational form of expression of private life. The right to privacy in the information sense means the inviolability of personal information, any confidential information about him that a person prefers not to make public.

One of the constitutional guarantees of the privacy of information life is the constitutional provision that the collection, storage,. The right to inviolability of private life presupposes the opportunity given to a person and guaranteed by the state to control information about himself, to prevent the disclosure of personal, intimate information.

The European Court of Human Rights, in one of its decisions, noted that the storage of information relating to the personal life of a person falls within the scope of paragraph 1 of Art. 8 of the Convention. In this respect, the Court emphasizes that the term “private life” should not be construed in a restrictive manner. In particular, respect for private life must also include some degree of respect for the right to enter into and develop relationships with others. This broad interpretation is consistent with the interpretation of the Council of Europe Convention for the Protection of Individuals on Automatic Processing of Personal Data (entered into force on 1 October 1985), which aims to “guarantee ... to every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy in terms of automated processing of personal data ”(Art. 1). The definition of such personal data is contained in Art. 2: it is "any information relating to a natural person, identified or who can be identified" * (105). The practice of the European Court of Human Rights indicates that the concept of privacy is much broader, it goes beyond the generally accepted scientific definition given by researchers, according to which privacy is understood as the right to be “left alone”, protected from the public.

2. In the development of the provisions of Part 2 of Art. 23 of the Constitution of the Russian Federation, additional guarantees of privacy, preservation of personal and professional secrets of a person are established by federal laws. Thus, violation of the secrecy of correspondence, telephone conversations and telegraph messages of citizens is a criminal offense and is punishable by correctional labor for up to six months or a fine up to one minimum monthly wage (Article 135 of the Criminal Code of the Russian Federation).

Search, seizure, inspection of the premises of citizens, the seizure of correspondence and its seizure in postal and telegraph offices may be carried out only on the grounds and in the manner established by the criminal procedure law. In this case, the investigator is obliged to take measures to ensure that the circumstances of the intimate life of the person occupying the searched premises or other persons revealed during the search and seizure are not made public. The seizure of postal and telegraph correspondence is carried out in a special procedure provided for by the criminal procedure legislation. Seizure of correspondence, according to the Constitution of the Russian Federation, is allowed only on the basis of a court decision.

In civil proceedings, the announcement of correspondence and telegraph messages in court is permissible only with the consent of the persons between whom this correspondence and telegraph messages were conducted. The publicity of court proceedings in criminal proceedings may be limited in cases of sexual crimes, as well as in other cases in order to prevent the disclosure of information about the intimate aspects of the life of persons involved in the case (Article 18 of the Code of Criminal Procedure of the Russian Federation).

One of the restrictions on the right to confidentiality of telephone conversations is the authority of the investigating authorities, if there is sufficiently substantiated evidence that an accused or suspect in a particularly dangerous crime is conducting telephone conversations, during which information relevant to a criminal case may be communicated, to issue an interception order these negotiations.

1. Everyone has the right to inviolability of private life, personal and family secrets, protection of his honor and good name.

2. Everyone has the right to privacy of correspondence, telephone conversations, postal, telegraph and other messages. Limitation of this right is allowed only on the basis of a court decision.

Commentary on Article 23 of the Constitution of the Russian Federation

1. The commented article 23 of the CRF regulates one of the personal constitutional human rights. They all have something in common in the form of the structure of the institution of personal rights and freedoms, which presupposes a combination of a number of elements. The first of them ensures the physical integrity of a person, the second - spiritual integrity, as well as his honor and dignity, the third is the inviolability of private and family life * (234). A common characteristic of all personal rights is the presence in their content of such an essential component as "inviolability".

Immunity means that relationships that arise in the field of private life are not subject to intensive legal regulation. Baglai M.V. believes that private life consists of those aspects of a person's personal life that, due to his freedom, he does not want to make the property of others. This is a peculiar sovereignty of the individual, meaning the inviolability of its "habitat" * (235). Romanovsky G.B. believes that private life encompasses a circle of informal communication, forced connections (with lawyers, doctors, notaries, etc.), the actual inner world of a person (personal experiences, beliefs, everyday life, leisure, hobbies, habits, home life, sympathy), family ties, religious beliefs * (236). From the point of view of the Civil Code, privacy, personal and family secrets are considered intangible benefits (Article 150), and one of the principles of civil law is the inadmissibility of arbitrary interference by anyone in private affairs (Clause 1, Article 1 of the Civil Code).

The Resolution of the Constitutional Court of the Russian Federation of 09.06.2005 N 248-O contains a definition of what the right to privacy is: it means the opportunity given to a person and guaranteed by the state to control information about himself, to prevent the disclosure of personal, intimate information. The concept of "private life" includes that area of ​​human activity that refers to an individual, concerns only him and is not subject to control by society and the state, if it is of a non-illegal nature. However, as pointed out by the European Court of Human Rights, “the main purpose of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms is to protect the individual from arbitrary interference by state authorities”. Determining the punishment in the form of imprisonment for a crime committed, the state does not arbitrarily interfere with the private life of a citizen, but only fulfills its function of protecting public interests (judgment of 28.05.1985 "Abdulazis, Cabales and Balkandali v. United Kingdom").

The right to inviolability of private life in terms of its normative content means inviolability of personal and family secrets, honor and good name of a person, as well as privacy of correspondence, telephone conversations, postal, telegraph and other messages. All components of the right to privacy form, according to I.L. Petrukhin, a kind of unity - a complex legal institution, consisting of the norms of various branches of law. The inviolability of private life is a continuously maintained state in which the legal status of a citizen in this sphere of life is realized * (237).

If we imagine the right to private life of citizens as a set of secrets guaranteed to them, then among them one can distinguish between personal secrets (not trusted to anyone) and professional secrets (entrusted to representatives of certain professions to protect the rights and legitimate interests of citizens). In this sense, the secret of creativity and communication, the secret of family and intimate relationships, the secret of home, diaries, personal papers, the secret of postal and telegraph correspondence and telephone conversations should be attributed to personal secrets. Professional secrets are a medical secret, the secret of judicial protection and representation, the secret of confession, the secret of adoption, the secret of the preliminary investigation, the secret of notarial actions and records of acts of civil status * (238).

The commented norm of Article 23 of the Constitution of the Russian Federation on the right to inviolability of private life and personal secret was applied by the Constitutional Court of the Russian Federation when considering a request from the Langepass City Court of the Khanty-Mansiysk Autonomous Okrug to verify the constitutionality of paragraph 2 of Art. 14 of the Federal Law "On Bailiffs" (Resolution of the Constitutional Court of the Russian Federation of May 14, 2003 N 8-P * (239)).

The position of the applicant was that the provisions of the said Law, authorizing the bailiff-executor to request from the bank certificates of bank-secret deposits of individuals without the request (consent) of the court, violate the constitutional rights of bank customers to privacy and personal secrecy (part 1 Art. 23 of the Constitution of the Russian Federation) and contradict the provisions of other federal laws.

The Constitutional Court concluded that from the constitutional guarantees of privacy, personal secrecy and the inadmissibility of disseminating information about a person's private life without his consent, follow as the right of everyone to keep secret information about his bank accounts and bank deposits and other information, types and the volume of which is established by law, as well as the corresponding obligation of banks and other credit organizations to keep bank secrets, as well as the obligation of the state to ensure this right in legislation and law enforcement practice. Thus, the Constitution defines the foundations of the legal regime and legislative regulation of banking secrecy as a condition of freedom of economic activity arising from the nature of market relations, and guarantees of the right of citizens to freely use their property for entrepreneurial and other economic activities not prohibited by law, as well as a way to protect information about the private life of citizens, including their financial situation, and the protection of personal secrets.

The institution of banking secrecy by its nature and purpose has a public-private character and is aimed at ensuring conditions for the effective functioning of the banking system and civil circulation based on the freedom of its participants; at the same time, this institution guarantees the fundamental rights of citizens and the interests of individuals and legal entities protected by the Constitution. Proceeding from these constitutional guarantees, banking secrecy ensures the protection of information, the disclosure of which may violate the rights of the client, and the limits of the obligation imposed on the bank to keep banking secrecy are determined by law.

The federal legislator has the right to impose on a bank or other credit organization the obligation to provide state bodies and their officials with information constituting banking secrecy only to the extent and to the extent necessary for the implementation of the goals specified in the Constitution, including the public interests and interests of other persons. In addition, the federal legislator has the right to establish in the law both the range and powers of the bodies entrusted with the implementation of the public function of executing court decisions, and the obligations of other bodies and organizations corresponding to these powers.

The final conclusion reached by the Court is that the contested provisions do not contradict the Constitution in the constitutional and legal sense, which was identified by the Court on the basis of its normative unity with the provisions of paragraph 2 of Art. 12 of the same Federal Law, and to the extent that they provide for the right of the bailiff-executor in connection with the execution of a court order to request and receive from banks and other credit institutions the necessary information on deposits of individuals in such an amount that is required for the execution of the executive order. document, and within the limits determined by a court order, and the bank, other credit organization are obliged to provide such information within the limits of the debt to be collected in accordance with the executive document.

In the Decision of the Constitutional Court of the Russian Federation of July 14, 1998 N 86-O "On the case of checking the constitutionality of certain provisions of the Federal Law" On Operational Investigative Activity "on the complaint of citizen I. G. Chernovaya" * (240), a legal position was formulated, by virtue of which the implementation of operational-search measures, including surveillance (assuming, at the current level of technology development, observation of what is happening in a citizen's dwelling and without entering the dwelling) is possible only in order to fulfill tasks and if there are grounds provided for by federal law, as well as the corresponding court decision. Consequently, the Law on OSA does not allow the collection, storage, use and dissemination of information about the private life of an inspected person, if this is not related to the identification, prevention, suppression and disclosure of crimes, as well as the identification and identification of persons preparing them, committing or committing them, and other legitimate tasks and grounds for operational-search activity. Moreover, according to par. 4 h. 7 tbsp. 5 of this Law, the bodies (officials) carrying out operational-search activities are prohibited from disclosing information that affects the inviolability of private life, personal and family secrets, honor and good name of citizens and which became known in the process of conducting operational-search activities, without the consent of citizens , except for the cases stipulated by federal laws (in this case, if they relate to a criminal act).

In addition, the contested provision of Part 1 of Art. 6 should be considered, the Constitutional Court noted, in unity with the prescription of Part 2 of Art. 8 that the conduct of operational-search measures that restrict the constitutional right of citizens to the inviolability of their home is allowed on the basis of a court decision and if information is available: on the signs of a prepared, committed or committed illegal act, according to which the preliminary investigation is mandatory; about persons preparing, committing or having committed an unlawful act, for which the production of a preliminary investigation is mandatory; about events or actions that pose a threat to the state, military, economic or environmental security of the Russian Federation. As follows from Part 2 of Art. 8, when carrying out any operational-search measures, including observation, the constitutional right of a citizen to the inviolability of his home cannot be limited without a court decision.

In the Decision of 19.06.2007 N 483-O-O, the Constitutional Court concluded that the consolidation in Art. 61 of the Fundamentals of the Legislation of the Russian Federation on the Protection of the Health of Citizens of a special legal regime of information containing medical secrecy and a special procedure for its provision (including by requesting it by the bodies of inquiry, preliminary investigation, the prosecutor or the court on its own initiative or at the request of the parties) does not exclude the possibility of obtaining of this information both directly by the citizen himself, whom it concerns, and by his representative (defender). The provision of such an opportunity to these persons is ensured by the provisions of not only the named article of the Fundamentals, but also Art. 31.

The creation and widespread use of computerized databases on citizens by public and private organizations is leading to the evolution of the constitutional right to privacy. New aspects of privacy are being discovered. The information aspect becomes predominant, which means a gradual transition to the protection of privacy by recognizing the constitutional right to information inviolability. The data obtained in the course of the population census, the keeping by the tax authorities of the accounting of the expenses of individuals, the data of the registration accounting are the necessary measures of intrusion into the sphere of private life. All these measures must be carried out for certain public purposes, subject to state guarantees to protect the confidentiality of the information collected.

The right to protection of information about private life (the right to informational self-determination) does not apply to classical fundamental rights. It has developed over the past three decades, mainly in litigation in Western Europe. Together with Part 1 of Art. 23 of the Constitution, which enshrines the right of everyone to inviolability of private life, personal and family secrets, protection of their honor and good name,. The right to informational self-determination within the framework of the fundamental right to inviolability of private life covers personal information insofar as it is not protected by secret correspondence, telephone conversations, postal, telegraphic and other messages (part 2 of article 23 of the Constitution) or the right to inviolability of the home ( ) * (241).

Currently, the legal basis for the protection of personal data in Russia has begun to take on clear outlines, taking shape in two directions. Adopted specialized legislation that contains legal provisions that guarantee privacy and regulate the scope of protection of personal data. Specialized legislation includes such legal acts as Federal Law of 27.07.2006 N 152-FZ "On Personal Data", the Law on Information, Information Technologies and Information Protection, Decree of the President of the Russian Federation of 06.03.1997 N 188, approving the "List of confidential information character ", etc. Personal information is also information about deposits and accounts of citizens in banks. The civil legislation considers information about the existence of an account (deposit) in a particular credit institution, the owner of the account, and transactions performed on the account as information about the accounts and deposits of citizens. Such information is contained in primary documents (payment orders, etc.), cash documents, various statements, account statements, and the extract from the correspondent account reflects information regarding all bank customers for a certain period of time on all bank operations (serial number transactions, account balance, customer account number, payment amounts, links to the payment order). Given that this information is of a personal nature, the legislator has established a special legal regime for banking secrecy. In accordance with paragraph 1 of Art. 857 GK banks guarantee the secrecy of bank accounts and bank deposits, account transactions and customer information. Checking the constitutionality of parts 2 and 4 of Art. 182 of the Code of Criminal Procedure, the Constitutional Court in the Decision of 19.01.2005 N 10-О * (242), having identified the constitutional and legal meaning of the challenged regulations, came to the conclusion that the seizure of documents containing information on deposits and accounts in banks and other credit organizations, which is carried out within the framework of investigative actions carried out in the course of criminal proceedings, is permissible if this information is directly related to the circumstances of a particular criminal case; seizure of documents should not lead to the receipt of summary information about all clients of the bank; when issuing a resolution to initiate a petition before the court for seizure or search in order to seize documents on deposits and accounts with a bank or other credit institution, the investigator has no right to request information about accounts and deposits, unless such information is related to the need to establish circumstances significant for the investigation on a specific criminal case, and credit organizations, in turn, are not obliged in these cases to transfer relevant information to the investigating authorities.

The constitutional right to the protection of honor and good name is considered by the Court as an independent fundamental right (see Definition of the Constitutional Court of the Russian Federation of September 27, 1995 N 69-О * (243)). Despite the fact that the right to privacy is provided for in Part 1 of Art. 23 of the Constitution, together with the constitutional right to the protection of honor and good name, it cannot be assumed that the Constitution guarantees the protection of the honor and good name of a person only in connection with the protection of his private life. The guarantee of the constitutional right to the protection of honor and good name is the norm of Art. 152 of the Civil Code of the Russian Federation. In two of its decisions - in the Definition of 09/27/1995 N 69-О and the Definition of 04/08/2003 N 157-О * (244) - the Constitutional Court formulated a legal position, by virtue of which the exercise by citizens of some constitutional rights should not block the exercise of other constitutional rights. rights and, accordingly, the exercise by a citizen of the constitutional right to the protection of honor and good name does not prevent him from sending a message about the crime committed in the exercise of the constitutional right to appeal to state bodies, which must be guaranteed by the courts of general jurisdiction.

The bearers of the constitutional right to protect a good name can be not only citizens, but also legal entities of private law (see Definition of the Constitutional Court of the Russian Federation of 04.12.2003 N 508-О * (245)).

2. The constitutional right to the secrecy of individual messages covers all types of communications between individuals * (246). One of the main guarantees of the right to privacy of correspondence, telephone conversations, postal, telegraphic and other messages is the general constitutional duty of the state, consisting in the recognition and protection of human and civil rights and freedoms (). In fulfillment of this obligation, the Federal Law of 17.07.1999 N 176-FZ "On Postal Communication" (as revised on 14.07.2008) and the Federal Law of 07.07.2003 N 126-FZ "On Communication" (as revised from 29.04 .2008).

The Plenum of the Supreme Court of the Russian Federation in its resolution of October 31, 1995 N 8 "On some issues of the application by the courts of the Constitution of the Russian Federation in the administration of justice" (as amended on February 6, 2007) drew the attention of the courts to the fact that the results of operational the constitutional right of citizens to privacy of correspondence, telephone conversations, postal, telegraph and other messages, as well as with entry into a home against the will of the persons living in it (except for cases established by federal law), can be used as evidence in cases only when they were obtained by a court decision to carry out such events and carried out by the investigating authorities in accordance with the criminal procedure legislation.

According to Art. 23 of the Constitution of Russia, restriction of the right to privacy of correspondence, telephone conversations, postal, telegraph and other messages is allowed only on the basis of a court decision, and in accordance with Art. 25 Penetration into a dwelling against the will of persons living in it is possible only in cases established by federal law, or on the basis of a court decision. Proceeding from this and taking into account that the Constitution has supreme legal force and direct effect, the Plenum of the Supreme Court of the Russian Federation in its resolution of 12.24.1993 N 13 "On some issues related to the application of Articles 23 and" (as amended on 06.02.2007) recommended supreme courts of republics, regional, regional courts, courts of federal cities, courts of autonomous regions and autonomous regions, district (naval) military courts to accept for their consideration materials confirming the need to restrict a citizen's right to privacy of correspondence, telephone conversations, postal, telegraph and other messages.

District courts and garrison military courts cannot refuse to consider such materials if they are submitted to these courts. Based on the results of the consideration of the materials, the judge issues a reasoned decision on permission to conduct operational-search or investigative actions related to the restriction of the right to confidentiality of correspondence, telephone conversations, postal, telegraph and other messages, or to break into a dwelling, or to refuse to do so.

There is no single law on privacy and personal space in Russian legislation. These issues are regulated by the provisions of the Constitution, the Criminal and Civil Codes of the Russian Federation. In considering the legal aspects of private life, one should focus on the relevant articles of these documents.

The law on the personal life of a person is represented by the following provisions:

  • article 23 of the Constitution of the Russian Federation;
  • article 152.2 of the Civil Code of the Russian Federation on the protection of private life;
  • article 137 of the Criminal Code of the Russian Federation violation of human immunity.

Article 23 of the Constitution of the Russian Federation defines the human right to inviolability, personal and family secrets, as well as the protection of his honor and good name. This concept includes the privacy of correspondence and telephone conversations, as well as other personal messages. The Constitution prescribes that the restriction of this right is imposed only by a court decision.

Civil Code in Art 152.2 defines the following aspects in the inviolability and protection of privacy:

  • without the consent of a citizen, it is not allowed to collect or store information about his origin, place of residence or stay, personal or family secrets and other aspects of private life, unless otherwise provided by law;
  • collection and storage of information, as well as their use and distribution, is allowed in the state or public interests, as well as in cases where a citizen has previously given consent to such actions;
  • illegal use of illegally obtained information and infringement of immunity is also the inclusion of information in works of science, art or literature, provided that the interests and rights of a citizen have been violated;
  • if illegally obtained information is contained on information carriers, then according to the law on the inviolability of personal space, a citizen has the right to demand through the court the removal of all information and their carriers;
  • observance of the protection of the private life of a deceased citizen has the right to demand his children, parents or spouse.

Penal Code in Article 137 prescribes the following privacy infringement provisions:

  • responsibility for the illegal collection and dissemination of information about the personal or family life of a citizen, its dissemination in public speeches or other methods of disclosing information are taken into account;
  • responsibility for the same actions, but when an official uses his official position, is separately regulated;
  • responsibility for violation of personal space and inviolability of a minor who has received moral or physical harm as a result of unlawful actions.

These provisions determine the basic constitutional right of a citizen - any information that constitutes the secret of his personal or family life is protected by the law on inviolability. It can be disclosed only with the consent of the person or through a court order.

Download the text of the law on the personal space of a person

Download privacy statements according to the law, you can use the following links:

  • article 23 of the Constitution of the Russian Federation -;
  • article 152.2 of the Civil Code of the Russian Federation -;
  • article 137 of the Criminal Code of the Russian Federation -.

The documents are presented in the latest revisions with the latest changes as of August 2017. File any violations in accordance with.

Last update: 31.01.

All over the world, private property and private life are strictly protected by law, Russia is no exception. Recently, there have been more and more applications to the police and the court in such cases, while in the West and the United States it has long been considered the norm to defend one's personal rights in court. What actions fall under the violation of privacy and what measures can be taken if such a question touches you, we will tell you in this article.

What does the phrase "privacy" mean?

This is readily and understandably stated in the Constitution of the Russian Federation, which enshrines the right of every person to restrict the access of unauthorized persons or organizations to his personal, family secrets, to protect his honor and good name by all legal means. The Constitutional Court of the Russian Federation interprets the general features of private life as follows:

  • this is information that contains any information that is not publicly available about a specific person;
  • it is a state-guaranteed opportunity for a citizen to control information about himself, preventing dissemination in any form and in any place without his consent;
  • unconditional assistance of law enforcement agencies is assumed in case of violation by third parties or organizations of individual rights;
  • the guarantee of the right to inviolability means complete non-interference in life on the part of not only other persons, but also the state;
  • not only the dissemination of personal information is inadmissible, but also the collection, storage, use, unless consent is obtained for any of the listed actions from the data owner;
  • in the Constitution, as well as in the Declaration of Human Rights, there is only one basis on which interference is possible without consent: a court decision.

Many theses and norms contained in a number of federal laws are closely intertwined with the general concept of a citizen's private life.

So, we all know the strict approach of the legislator to the use of personal data by third-party organizations, which banks and collectors have used in their own interests for a long time and continue to use. Currently, the law has undergone changes and repeats the rules of the Constitution on the necessary consent of the person whose personal information they want to use. This issue is especially relevant in the sphere of those credit and financial relations, where people who have nothing to do with the obligation are bored with calls and letters.

Another example of careful handling of confidential information is the Federal Law "On Archival Affairs", which sets out the rules for granting access to stored documents. So, the right to receive copies of the archival records of the deceased, containing family secrets, is available only to the heirs after a certain period of time.

An exception to the general rule of unavailability of private information is the consent of the citizen himself to familiarize himself with information constituting a personal secret, or the lawfulness of interference with personal life, dictated by the need to protect the rights of others in the framework of criminal proceedings.

When Intervention Is Permitted

So, the protection of inviolability ceases to operate in cases directly provided for by law. So, in accordance with Art. 9 of the Law on Operational-Investigative Activities, to obtain permission to violate the constitutional right to privacy of correspondence, telephone conversations, messages via e-mail, telegraph, etc. can only be at the court. Having turned to the court with a corresponding request (petition), it is necessary to justify why it is precisely this citizen's correspondence or other information that needs to be withdrawn.

Example # 1... In the case of the theft of gold items, the detainee pointed to an accomplice who may have a part of the stolen item. The head of the investigative department applied to the court with a petition to conduct such measures as wiretapping, removing information from telephone connections, as well as conducting a search. After examining the materials, the court made a positive decision and thus recognized the validity of the appeal to restrict constitutional rights. As a result of the measures carried out with the permission of the court, some of the gold items were actually found in the suspect's home.

Example No. 2... Often, on economic crimes, the investigation tries to remove and review everything that relates to the crime, and sometimes does not relate to the essence of the accusation. Thus, in the case of P.R. Yakovlev, who evaded paying taxes on an especially large scale, telephone conversations were intercepted with the permission of the court. In one of such conversations, P.R. Yakovlev. communicated with a certain Sukhanov R.L., who once worked as an accountant in his company. The operational officers considered this connection to be criminal and applied to the court with a request to obtain information about RL Sukhanov's correspondence. with other persons. The court rejected such a request, since R.L. Sukhanov. worked as an accountant ten years ago, now he is a pensioner, lives in a village, is seriously ill and does not communicate with anyone. Yakovlev P.R. he called for the first time in three years about the Pension Fund contributions to increase the benefit. In this case, the court recognized as groundless the request of the investigating authorities to carry out operational-search measures in relation to R.L. Sukhanov.

It should be noted that in urgent cases, law enforcement agencies can independently make a decision and carry out virtually any event that restricts the constitutional right to privacy of correspondence and negotiations without prior judicial permission. In this case, it is necessary to notify the court within 24 hours from the end of the event, which immediately makes a decision on the legalization or recognition of the measures taken as illegal. According to judicial practice, such “urgent” cases are considered to be weighty charges of a serious crime, information about the apparent involvement of other persons in the crime, or that the offender is about to disappear (for example, he is aware of the purchase of air tickets).

Thus, the law officially allows limiting the constitutional right to inviolability of private life in the interests of the investigation. At the same time, each citizen has the opportunity to appeal against both the actions of officials directly involved in wiretapping, searches, demanding details, correspondence, mailing, etc., and the very decision of the court, which is authorized to do so.

Criminal liability for unauthorized interference with privacy

So, violation of the inviolability of personal life, if there was no appropriate court decision, is punishable by criminal law, in particular, Art. 137, 138 of the Criminal Code of the Russian Federation. The difference between these norms lies only in the fact that according to Art. 137 of the Criminal Code of the Russian Federation, the subject of use can be any information of a private nature, according to Art. 138 of the Criminal Code of the Russian Federation - only private correspondence, telephone communications, postal messages, etc. At the same time, the so-called personal information (in relation to both articles of the Criminal Code of the Russian Federation) may include information that is not available to third parties. So, in the criminal legal sense, a family or personal secret implies:

  1. ignorance of third parties (organizations) about a particular fact in a person's biography;
  2. the citizen himself considers this information to be a personal or family secret, access of outsiders to it is limited;
  3. absolutely any objects and devices can be carriers of such information: disks, flash drives, old cassettes, SMS correspondence, photographs, etc.
  4. that information that is considered a secret of a citizen must not be illegal, concealing any crime, otherwise there will be no corpus delicti.

What specific actions to use someone else's information are a criminal offense? They can be:

collecting private information about a person

This can be any method of obtaining secret photographs, correspondence, theft of confidential documents, copying, etc.

Example No. 3... The intern of the Medical Academy, doing practice in the gynecological department of the city hospital, became interested in collecting medical records of patients. The young man copied every medical card he was interested in with the test results, pictures of the internal and external genital organs of women, after which he kept it all at home. After this "collection" was accidentally discovered by one of the patients, who became friends with an intern, the police opened a case under Art. 137 of the Criminal Code of the Russian Federation.

Spread

It should be noted that cases of liability under the Criminal Code of the Russian Federation precisely for the collection of private information are quite rare. Much more often, responsibility comes for their distribution - that is, bringing to the attention of at least one outsider. In what form the acquaintance took place, it does not matter: it can be a letter with an attachment, a short message on the Internet or social networks, just a conversation on the phone. The crime is completed from the moment the information is disseminated.

Example No. 4... Ivanov A.M. in revenge on his ex-wife, he sent three mutual friends of her intimate photos. At the same time, Ivanov did not demand anything from L.D. Ivanova, he simply performed such actions, since he hated her. Initially, in the initiation of a criminal case under Art. 137 of the Criminal Code of the Russian Federation by the police was refused, because, as it turned out, all three addressees never opened their e-mail and did not view the photos. Moreover, for a long time two addressees did not use their mailboxes at all, having forgotten their password. Subsequently, the decision to refuse to initiate was canceled and the case was nevertheless instituted, since the corpus delicti is considered completed from the moment the dissemination action itself was performed.

public distribution

Dissemination of information through the media, radio, newspapers, films, etc.). In this case, it does not matter whether there were any consequences of such spread (meaning, whether the victim suffered any moral suffering).

Example No. 5... In relation to the well-known plastic surgery doctor in the city, family information was disseminated on the Internet - that a few years ago the doctor adopted a child. The article was published anonymously on the Vkontakte social network, it contained details of life, as well as information on diagnoses of reproductive function, information on the treatment of infertility, etc. The injured doctor filed two applications at once - one of them to the police to initiate a criminal case under Article 137 of the Criminal Code of the Russian Federation for violation of privacy, the other - a claim to the court for the protection of honor and dignity, compensation for moral damage. The defendant's lawyer (he was soon identified) appealed against the decision to initiate a criminal case, since, in his opinion, it was necessary to wait for the court's decision on the statement of claim in order to understand whether the doctor's reputation was damaged. At the same time, the appeal did not take into account these arguments of the defense, since the public dissemination of information of a private nature without the consent of the person already forms the corpus delicti, without finding out whether this has caused damage.

Example No. 6... The lawyer appealed against the decision to initiate a criminal case under Art. 137 of the Criminal Code of the Russian Federation, arguing that a claim for the protection of honor and dignity, the recovery of the amount of damage that was caused as a result of the dissemination of information, had already been considered. Thus, citizens A.V. Bukharov, who had received daily calls from several representatives of microfinance organizations during the year, filed a lawsuit to recover money for moral damage, attaching the details of calls, screenshots from the Odnoklassniki social network page, where they were information about him as a debtor, personal information about his place of residence, hobbies, etc. The court partially satisfied the claim - in the amount of 150,000 rubles. Bukharov A.V. also turned to the police with a statement to bring the perpetrators to criminal responsibility, a criminal case was initiated on him. At the same time, the arguments of the lawyer were rejected, since the presence or absence of a decision in a civil case does not exclude the criminal liability of the violator of the law.

Conviction guilty of committing a crime under Art. 137 of the Criminal Code of the Russian Federation, can only be in the presence of direct intent. Thus, the accused must understand that the consent of the victim, whose information is confidential, did not exist. The responsibility of the guilty person begins at the age of 16.

When there is no responsibility

The Constitutional Court of the Russian Federation gave clear explanations that in each specific case of violation of constitutional rights, the circumstances should be investigated in detail, including for insignificance.

So, formally, a crime will take place in such cases:

  • a neighbor overheard a conversation between spouses-neighbors and passed on gossip to a friend;
  • an acquaintance, out of curiosity, took out a letter from someone else's mailbox and read the letter, and then put it back in the mailbox;
  • parents read their son's correspondence in "classmates", etc.

Here, despite the presence of almost all signs of a crime related to the invasion of privacy, due to the insignificance of the act, a criminal case will not be initiated. At the same time, the Constitutional Court of the Russian Federation interprets the described situations as isolated cases that do not have sufficient public danger to recognize such actions as a criminal offense.

Let us dwell separately on situations when a citizen voluntarily agrees to familiarize himself with his personal data to an indefinite circle of persons. Based on the criminal law, consent can be expressed not only in an official written form. So, posting your photos in an intimate form on social networks, it is difficult, or rather impossible, to talk about the presence of corpus delicti in the actions of the one who prints these pictures on a printer and shows his friends.

Example No. 7... On the social network, the mother posted a photo of her sick child, where he was depicted in a hospital ward, at the bottom of the photo there was a screenshot of the fatal diagnosis indicating the amount required for the operation. The volunteers decided to check if the child was really so sick. They went to a medical institution, where, judging by the photo, there was a child, and found out that a patient with such a surname is indeed being treated, but with a different, less serious and completely curable diagnosis. When the volunteers learned the information, they were forced to show doctors and nurses a photograph printed from a social networking site. Upon learning of the exposure, the mother wrote a statement to the police to prosecute the volunteers for interfering in her life. After a thorough check of the application, a decision was made to refuse to initiate a criminal case, while the justification was indicated on the voluntariness of the placement and the openness of access to the photo of an indefinite circle of people.

Qualifying attributes

If the right to privacy has been violated under certain additional circumstances, the qualification of the actions of the perpetrator will correspond to:

h. 2 tbsp. 137 of the Criminal Code of the Russian Federation

when criminal acts are carried out by a citizen using his official position. In other words, information that has become known in connection with the work is disseminated.

Example No. 8... For example, an employee of the personnel department responsible for storing the autobiographies of employees, using his official position, made photocopies of the questionnaires and kept them at home. This circumstance was revealed during a search in the apartment of a personnel officer on another economic case, quite by accident. For the illegal collection of information about private life using the official position, the personnel officer was liable under Part 2 of Art. 137 of the Criminal Code of the Russian Federation.

A similar feature is provided for in Part 2 of Art. 138 of the Criminal Code of the Russian Federation, when it comes to violation of such rights as the right to privacy of correspondence, postal items, messages of a different nature.

h. 3 tbsp. 137 of the Criminal Code of the Russian Federation

when the dissemination of information took place on the Internet, the media, and at the same time the information concerns the minor victim. Nowadays, the illegal use of confidential information concerning adolescents has long ceased to be a rarity. At the end of 2013, the legislator, taking into account the growth of crimes against children, supplemented the article with a separate qualifying feature.

Art. 138.1 of the Criminal Code of the Russian Federation

it can be said to be a derivative rule from Article 138 of the Criminal Code of the Russian Federation. It provides for liability for illegal production, purchase or sale of technical devices for illegal acquisition of personal information (correspondence, wiretapping, etc.). The fact is that the circulation of special listening devices is strictly prohibited on the territory of Russia, with the exception of law enforcement agencies. You can only obtain permission for the sale and use of the FSB. Contrary to this rule, many organizations or individuals still acquire devices, using them for their own purposes, for which they may be held liable under this article of the Criminal Code.

Punishment

As in other articles of the Criminal Code of the Russian Federation, the mildest punishment is provided for a crime without additional signs, and if there are any, the punishment is increased:

  • according to h. 1 tbsp. 137 (general rule of responsibility for unlawful interference), the guilty person may be punished with a fine of up to 200,000 rubles, compulsory or corrective labor, a ban on engaging in certain activities for up to 3 years;
  • according to h. 1 tbsp. 138 of the Criminal Code of the Russian Federation (responsibility for specific actions of the perpetrator related to violation of the right to confidentiality of correspondence, messages, etc.) may impose a fine of up to 80,000 rubles, compulsory or corrective labor;
  • for the dissemination of confidential information using official position (according to part 2 of p. 137 of the Criminal Code of the Russian Federation), liability can occur in the form of a fine of up to 300,000 rubles, imprisonment up to 4 years (a similar punishment is provided for in part 2 of Art. 138 of the Criminal Code of the Russian Federation);
  • for illegal dissemination of information regarding a child (part 3 of article 137 of the Criminal Code of the Russian Federation), the punishment can reach imprisonment up to 5 years with a ban on holding certain positions for up to 6 years;
  • for the unlicensed circulation of special equipment designed to collect information of a secret nature, a fine of up to 200,000 rubles can be imposed, as well as imprisonment up to 4 years.

Where to go, sample application

To protect the right to privacy, you should contact the police with a statement:

Head of the Police Department No. 24 of Moscow
Kuranova A.A., living at the address
__________________ (specify)
Tel ._______________ (specify)

STATEMENT

I ask you to bring to criminal responsibility Petrov V.N., who disseminates in writing information about me and my family, which became known to him in connection with the performance of the services of a psychologist. So, from May to October 2016, Petrov V.N. worked with my child Kuranov P.L., born in 2000, in connection with which he became aware of the diagnoses made by a neurologist. Later it became known to me that Petrov V.N. phoned all my friends and told them about the details of working with my child, the content of the conversations, diagnoses, the result of psychological diagnostics. In this regard, all my acquaintances began to take an interest in the mental health of my son, to impose services for placement in a psychiatric hospital, many stopped communicating with our family.

On criminal liability for knowingly false denunciation in accordance with Art. 306 of the Criminal Code of the Russian Federation has been warned.

Appendix: screenshots of the page of the official website of the psychologist V.N. Petrov, a copy of the contract for the provision of psychologist's services, a receipt for payment for these services, a copy of the birth certificate of Kuranov P.L.

Kuranova A.A., date, signature.

After the initiation of the case, you can draw up a statement of claim for compensation for harm caused by the crime and filed during the judicial examination. Such a claim is not subject to state duty.

If, for some reason, the police have decided to refuse to initiate a criminal case, such a decision should be appealed to the prosecutor's office or to the court.

If you have questions about the topic of the article, please do not hesitate to ask them in the comments. We will definitely answer all your questions within a few days.

90 comments

In Russia, everyone has the right to privacy. It is of particular importance in ensuring the individuality of specific individuals in relations with the state. The inviolability of privacy and home is inextricably linked with categories such as freedom, equality. Its value lies in the fact that the level of its observance determines the social position of the individual. Consequently, a person's right to privacy reflects the degree of development of society itself. In this regard, the problem of finding the optimal model of interaction between the individual and the state, as well as citizens with each other, does not lose its relevance for a long time.

General information

It is known that the modern concept of freedoms, one of the key elements of which is the right to inviolability of private life, is the result of the continuous development of society. History indicates that the formed ideas about inalienable, innate individual legal possibilities underlie the existing normative status of the individual today. Modern researchers quite rightly point out that the right to privacy was officially enshrined only in the middle of the 20th century. Meanwhile, one should not forget that it is a multilevel and capacious concept that includes many social relations.

Historical reference

Reflections on the existence of private life are present in the works of Aristotle. He, like Plato, studied the state through the unity of its elements. Meanwhile, an excessive desire for complexity, expressed in the community of children and wives, according to Aristotle, leads to degradation and subsequent destruction of statehood. The philosopher undertook the first attempts to substantiate the need for non-intervention by the authorities in such areas as marriage and family relations, education, life management, etc. In his works, Aristotle consistently sought to exclude from the sphere of state action the interaction of wives and husbands, children and fathers, slaves and masters.

Epicurus theory

She is considered one of the first concepts of legal individualism and liberalism. The negotiated interpretation presupposes the presence of such values ​​as pleasure, freedom, ataraxia (serenity of the spirit). They are all individualistic. Reflections on privacy can be seen in Epicurus's works. He studied it through the prism of individual freedom. She, according to Epicurus, expresses the degree of responsibility of a person for his reasonable choice of lifestyle. Freedom, as the author believed, is out of necessity, since the latter is not subject to responsibility. Of course, the ideas about the sphere of private life that developed in ancient times are very far from modern ones. But rich experience allows you to better understand the logic of the formation and subsequent development of ideas, to respect the foundations and problems of translating values ​​into the existing conditions in different regulatory systems.

Normative base

The content of the concept under consideration has undergone many changes. In Russia in 1936 the Constitution was adopted. For the first time, the right to privacy was officially enshrined in it. In 1948 the UN Declaration was adopted. Article 12 of the document provides for a prohibition on arbitrary interference with privacy, encroachment on the inviolability of the home, privacy of a person's correspondence, reputation and honor. In 1976, in the International Covenant, these prohibitions were duplicated. These international documents served as the very first guarantees of the right to privacy. Their provisions were reflected in the fundamental normative act of 1977. In 1978 they were duplicated in the new Constitution. The modernization of the state system required the approval of the Declaration. On November 22, 1991, this normative act was adopted. Article 9 of the Declaration established the right to privacy, confidentiality of correspondence, telegraph and other messages, as well as telephone conversations. Restrictions are allowed only by virtue of regulatory enactments or by court order. At the same time, the right to the protection of personal data was separately stipulated. The norms establish that the storage, collection and use of information about the subject is allowed only in exceptional cases.

Applicable provisions

In 1993, a new Constitution was adopted at an all-Russian referendum. It proclaims the citizen as the highest value. Of particular importance today is Art. 23 of the Constitution of the Russian Federation. On its basis, the protection of inalienable values ​​is carried out. The norm establishes the right to inviolability of private life, family and personal secrets. It also enshrines the responsibility of the state for protecting the honor and good name of a citizen, ensuring the confidentiality of correspondence, mail and other messages, as well as telephone conversations. Art. 23 of the Constitution of the Russian Federation allows restrictions only by a court decision.

Art. 24 permits the collection, use, distribution and storage of information about the subject only with his consent. At the same time, the bodies of territorial and state power are obliged to provide any person with the opportunity to familiarize themselves with materials and documents affecting his freedoms, unless otherwise provided by law.

Privacy is also mentioned in other regulations governing various public relations. For a fairly long period of time, the provisions had a declarative character. However, today, in connection with the proclamation of democracy in Russia, the role of the institution of personal inviolability is becoming more and more essential. It is currently under state protection.

Institute specifics

When it comes to the inviolability of personal life, it is necessary to understand that the right to it is inalienable, inalienable, belonging to a person from his very birth. Regulatory acts should establish an exhaustive list of subjects that may have access to information representing a particular secret, the grounds and procedure for submitting a request for its receipt. Protecting privacy is considered one of the most important responsibilities of the state.

Important points

The considered law, acting as a legal category, includes several powers. They provide the citizen with a certain independence from the state when he is out of the working environment, out of service. In addition, this category contains a number of legal guarantees of non-interference with the exercise of the right. In view of the fact that the institute in question has not been sufficiently studied to date, a voluminous work remains to be done, during which it is necessary to establish the limits of the protected secrets. In this regard, the state should protect not only the information that a citizen provides to any institution (legal advice, notary office, etc.), but also any information received in the course of communication with him, and the fact of contacting certain organizations and structures.

Institute characteristics

The right to privacy includes many common human values. Their specificity and content are determined by these or those spheres of life, are fixed by the corresponding norms. What is private (personal) life? The normative acts lack a clear definition of this concept or the criteria that characterize it. In practice, such ambiguity can lead to an arbitrary interpretation of the category in question, an unjustified expansion or limitation of the meaning.

In legal publications, the content of the concept of "private life" includes a wide range of relationships. Their structure includes not only information related to the labor (service) activities of an individual, but also personal data. The decision of the issue of their disclosure is left to the discretion of the citizen himself.

In the literature, there is an opinion that the institution of privacy is more a sociological concept than a normative construct. The opinion of A. N. Krasikov is interesting in this regard. The author points out that privacy is not only a category regulated by law. It should be viewed as something more meaningful, indefinable, capacious phenomenon that belongs only to the individual.

Expression forms

The right to privacy is a multifaceted concept. Today it has many manifestations. Verbal-sensual and spatial forms of expression are considered traditional. The latter includes a ban on intrusion into the workplace, into the house, freedom to communicate in public places without any external supervision. The verbal-sensual form presupposes the inadmissibility of arbitrary intrusion into the family-moral, intimate spheres, etc. Recently, more and more experts have identified a third - informational - model of the manifestation of law. It assumes the confidentiality of an individual's personal data, information that he does not want to disclose.

A secret protected by the state

The legislation regulates in sufficient detail the conditions for the exercise of the right to privacy. According to the norms, information of an intimate, medical nature, other information that relates exclusively to a citizen, which, if made public, can cause moral harm to him is not subject to disclosure.

Employees of certain professions are prohibited from divulging the secrets of persons with whom they interact in the course of their activities. Thus, the secret of confession is guaranteed by Federal Law No. 125. A priest cannot be held accountable for refusing to provide information that became known to him in the course of a private conversation with a citizen. Medical secrecy is protected by the Fundamentals of Health Protection Legislation. The records of the registry offices cannot be disclosed. The information constituting a secret of private life includes information about adoption. Employees of notaries' offices must keep the confidentiality of the contents of wills, acts of donation of property, etc. The provision of certificates of actions taken and the issuance of documents are allowed only at the request of the court, the prosecutor, and the investigating authorities.

Violation of privacy in the Criminal Code of the Russian Federation

For non-observance of the established restrictions and prohibitions on the collection, storage, dissemination of information constituting a secret, without the consent of the citizen, criminal liability is provided. The corpus delicti and the types of punishments are enshrined in Article 137 of the Criminal Code of the Russian Federation. The objective part of the act is made up of active behavioral acts. They are expressed in the unlawful collection, distribution, including in a public speech or in the media, information related to the victim's private life. When qualifying, the fact that these actions were performed without the consent of the person is of particular importance.

Collecting information

It presupposes any way of obtaining information. This can be eavesdropping, photographing, interviewing knowledgeable people, video or audio recording, familiarization with materials, documents, their theft, copying, and so on. The method of collecting data when qualifying an act does not matter. Article 137 of the Criminal Code of the Russian Federation calls the receipt of information without the consent of the victim as the main reason for prosecution. The collection of data, coupled with breaking into a house, connecting to a telephone line, forms a set of crimes. Accordingly, such an act is qualified under several provisions of the Code. The unlawfulness of the collection of information means that the actions are not performed within the framework of the established procedure, by an inappropriate person, not on the basis established by the norms, etc.

Data dissemination

It should be understood as any unlawful communication of information to the attention of at least one third party without the consent of the victim. The dissemination of data in a public presentation involves disclosing it to an indefinitely large audience. For example, it can be a speech to voters, employees of an enterprise, listeners of a lecture, and so on. Dissemination of information in a publicly displayed work will take place when the relevant information is included in such a work and is shown to others. For example, information can be mentioned in a film, program, story, etc.

The subjective part

The crime has a formal structure. The act is considered completed at the time of the implementation of illegal actions aimed at collecting or disseminating information about a citizen. The subjective side is formed by direct intent. The purpose and motive of the act does not affect qualifications. An individual who has reached the age of 16 (sane) acts as the subject of a crime.

Qualifying composition

Tightening of responsibility is provided for the commission of a crime with the use by a person of his official status. Accordingly, the punishment is imputed to a special subject. It will be any citizen who illegally collects or distributes confidential information about the victim using his official position.

The actions of employees can also be qualified in conjunction with special compositions (if there are grounds). When deciding on the availability of a qualifying staff, one should take into account the need to ensure a balance of citizens' rights to protect dignity and honor, business reputation, on the one hand, and other freedoms and legal opportunities, on the other (freedom of speech, thought, the ability to seek, produce, transfer and disseminate information by any legal means). For example, obtaining information as part of a preliminary investigation cannot be a crime if it is carried out in accordance with the established rules.

Conclusion

The institution of privacy began to take shape in ancient Greece. Gradually, it developed and acquired the normative meaning that people of our time are used to investing in it. In domestic legislation, the right to privacy has come a long way. For a long time, the institution was not formalized in a normative way. In fact, until the moment of proclamation of the right at the constitutional level, its protection was not provided in an adequate measure. Today it occupies one of the key places in the regulatory system. By its content, it is a complex, multi-level formation that includes several objects. Among them are freedom of behavior, conscience, thought, choice of language and religion, expression of opinion, secrecy of correspondence, private life.