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5LEGAL ASPECTS OF VIOLATION OF PRIVACY IN THE MODERN RUSSIAN CRIMINAL LAW
Abstract
The present study legal analysis of the legal aspects of violation of privacy in the modern Russian criminal law, which is currently, despite the urgency of the problem, little studied in the direction from the point of view of the theory and from the practical point of view.
Keywords
human rights, criminal law, violation of inviolability of private life in the modern Russian criminal law
AUTHORS
Andrey Andreevich Tumanov
PhD, Associate Professor, Murmansk State University of the Arctic, Murmansk, Russia.
E-mail: sir.tumanov2015@yandex.ru
Tatyana Vitalyevna Kapelko
PhD, Associate Professor, Murmansk State University of the Arctic", Murmansk, Russia.
E-mail: kapelko@yandex.ru
Introduction.
The urgency of the problem. During the research, we focused on the theoretical and practical challenge: to interpret and to make recommendations on the application of standards of the Russian criminal law in the protection of privacy, which now often have a declarative character and is hardly applied in practice, due to the lack of should attention to this issue from the officials, authorised to interpretation of the law.
Materials and Methods.
The main methods of the research was the analysis and synthesis undertaken with the consideration of norms of different branches of Russian law with the aim of solving problems. In the study, were obtained the following results.
Results.
Under the violation of privacy, in part 1 of article 137 of the criminal code means the illegal gathering or dissemination of information about a person's private life constituting its personal or family secret, without his consent or spreading this information in public vystupl research Institute, publicly shown product or mass media.
Part 2 of this article envisages the liability for the same acts committed by a person using his official position.
Part 3 of this article envisages responsibility for illegal distribution in a public statement, publicly performed work, the media or information and telecommunication networks of information indicating the identity of the minor victim is under sixteen years of age, in a criminal case, any information that contains a description received by it in connection with a crime of physical or moral suffering, caused harm to health of minors, or a minor mental disorder, or other serious consequences.
The object of the crime are public relations, established by the law concerning the human right to private life, as well as related personal and family relationships.
Under part 1 article 23 of the Constitution, everyone has the right to inviolability of private life, personal and family secret, protection of honour and good name. Not allowed collection, storage, use and dissemination of information about a person's private life without his consent. This in-rushing is one of the guarantees of the person to private life and its inviolability.
Under "private life" should be understood as that area of human activity which relates to an individual, is his concern and not subject to control by the society and the state (in cases where it is not unlawful).
Under the information constituting personal or family secret, not to be understood as nonpublic data, in the opinion of the person which the data concerns (at the same time are unable to provide secret information previously published one way or another).
The objective party the crime is expressed in at least one of the re-numbering of the provisions of article alternative actions: 1) unlawful gathering information about private life of a person constituting its personal or family secret without his consent; 2) unlawful dissemination of such information without the consent of the person; 3) the dissemination of such information in a public statement, publicly shown product or mass media that describes not only the act itself, but the way it was committed.
Under the gathering of information should be understood as any way of obtaining visual observation, surveillance, eavesdropping, interviewing knowledgeable people (relatives, friends, colleagues, neighbors), audio-, video recording information, photography, special technical means of the Internet, acquaintance with documents and materials (e.g., content corresponding medical, personal, questionnaires, declarations, etc.), their stealing, copying, etc. Method of gathering information to qualify the act as a crime does not matter. Importantly, these data are collected illegally, without the consent of the victim.
In cases where the gathering of information was associated with penetration into the dwelling, connecting to the telephone line, the act constitutes the totality of the offences should job-to zinovatsa in conjunction with article 138, or 139 138.1 of the criminal code.
The illegality of gathering information means the implementation of these actions is not on the grounds or in violation of the procedure established by law, or not properly the subject, in an unspecified time frame, etc.
Under the dissemination of information shall mean any illegal or without the person's consent to their informing at least one person. Method of distributing information on the qualification on p. 1 are not affected and can be expressed in various forms: oral, written, telephone, other communication channels, social networks, etc.
In cases where the responsibility for the dissemination of individual information is established by the special norms of the criminal code (for example, the disclosure of confidentiality of adoption - article 155 of the criminal code), in accordance with part 3 of article 17 of the criminal code act should be qualified by a special rule. If the information on the private life are part of other information, also protected by the criminal law, for example, the data of the preliminary investigation, the disclosure of such information should be qualified on set of this article and article 310 of the criminal code.
In cases where the collection and dissemination of information, based on the provisions of law (e.g. criminal procedure code of the Russian Federation [1], the law "On police" [2], "On operational-investigative activities in the Russian Federation" [3], "On the media" [4], etc., and not go beyond them, no crime has been committed.
The offense formal. Act is ended from the moment of the execution of the Pro-tiopronin of action for the collection or dissemination of information about private life of a person.
When solving questions about the availability of this offence should proceed from the need for a balance between the right of citizens to protection of honor, dignity and business reputation, on the one hand, and other guaranteed by the Constitution rights and freedoms - freedom of thought, speech, the media, the right to freely seek, receive, transmit, produce and disseminate information by any lawful means, the right to inviolability of private life, personal and family privacy, the right to appeal to state bodies and bodies of local self-government, on the other (articles 23, 29, 33 of the Constitution of the Russian Federation [5]; the resolution of Plenum of VS of the Russian Federation of 24.02.2005. No. 3 [6]).
The subjective party the crime is characterised by fault in the form of direct intent. The motive and objective of the act on qualification of value have no, but can be taken into account by the court when purposes-NII punishment.
The offender is sane person under 16 years of age.
Part 2 provides for the aggravating circumstance, the same act, if committed by a person using his official position. For the presence of this composition required a special subject, which
is any person who is unlawfully collecting or disseminating information on private life of a person with use of his official position. The actions of officials of bodies of state power or local self-government, in the presence of grounds can also be qualified on set with the composition of malfeasance (articles 285 or 286 of the criminal code).
Part 3 of this article envisages responsibility for illegal dissemination of information, provided by the perfect disposition of ways: in public speaking (i.e., in the presence of a significant number of students, for example, in a speech at the meeting, the meeting, briefing, conference, corporate party, etc.); publicly performed work (a movie or video, audioprojektai, poster, illustration, flyer posted in a public place); the media or information and telecommunication networks of information (publication on television, radio, the press, free access to social networks, etc.), either in the form of indicating the identity of the minor victim is under sixteen years of age, in a criminal case, any information that contains a description received by it in connection with a crime of physical or moral suffering, caused harm to health of minors, or a minor mental disorder, or other strand-cue effects (which is an evaluation criterion in each case).
Discussions.
Previously, such problems in his works such researchers of the Russian criminal law, as Professor L. D. Gaukhman [7], Professor V. S. Komissarov [8], however, in their is-the studies they betrayed little consideration of aspects such as a comprehensive analysis of the provisions of the criminal law, together with norms of other branches of Russian legislation, the emphasis in the research.
Conclusion.
In conclusion, I would like to note that, unfortunately, in the current judicial practice there are very few criminal cases in this category, is over the imposition of blame-tive sentence. This is largely due to fear and indecision of the authorities of the preliminary investigation and trial in the application in practice, the provisions of this article of the criminal code. With the purpose to make progress in this area was conducted presents a comparative study and indicated the results.
Recommendations.
As recommendations, I would like to draw the attention of representatives of Russian power structures and justice at the practical conclusions given in this study and recom-recommend to not be afraid to apply them in practice.
REFERENCES
1. Criminal procedure code of the Russian Federation [Text] : Feder. the law : [adopted by the State. Duma on 22 November 2001, No. 174-FZ dated 18.11.2001 G.] : as amended by Feder. law 13.07.2015 g. / / meeting of the legislation of the Russian Federation. - 2001. - No. 52. - St. 4921.
2. Federal law "On police" [Text] : [adopted by the State. Duma 28.01.2011, No. 3-FZ dated 07.02.2011,]: ed Feder. law 13.07.2015 g. / / meeting of the legislation of the Russian Federation. - 2011. - No. 7. -St. 900.
3. The Federal law "About operatively-search activity" [Text] : [adopted by the State. Duma 05.07.1995 № 144-FZ, dated 12.08.1995 G.] : as amended by Feder. law 13.07.2015 g. / / Meeting of the legislation of the Russian Federation. - 1995. - No. 33. - St. 3349.
4. The law of the Russian Federation "On mass media" [Text]: [No. 2124-1 from 27.12.1991 G.] : as amended by Feder. law 13.07.2015 G. // Russian newspaper. - 1992. - № 32.
5. The Constitution of the Russian Federation [Text] : [adopted by popular vote December 12. 1993 : as of 30 Dec. 2008] // collected legislation of the Russian Federation. - 2009. - No. 4. - St. 445.
6. The resolution of Plenum of the Supreme Court of the Russian Federation of 24.02.2005 N 3 "About court practice on cases on protection of honor and dignity of citizens and also business reputation of citizens and juridical persons" // Bulletin of the Supreme Court of the Russian Federation. - 2005. - No.
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7. Criminal law. Special part : Textbook / Under the editorship of Professor L. D. Gauhman and Professor
5. V. Maksimova. - 2nd edition, revised. and add. - M. : Eksmo, 2005. - 704 p.
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