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Basic principles of personal data protection in the practice of the European Court of Human Rights. Personal data as a component of personal life in the practice of the ECtHR protection of family life in the practice of the European court

(Frolova O.S.) ("Journal Russian law", 2008, N 10)

PRIVATE LIFE UNDER THE LIGHT OF THE CONVENTION ON THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

O.S. FROLOVA

Frolova Olga Sergeevna - assistant judge of Altayskiy regional court, Associate Professor of the Department of Civil Law and Procedure of the Altai Academy of Economics and Law, Candidate of Legal Sciences.

In the law of the Council of Europe, serious attention is paid to the problems of private life. Directly these issues are devoted to Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 (hereinafter - the 1950 Convention), as well as a significant number of decisions of the European Commission on the effectiveness of justice and the European Court of Human Rights. In European case-law, the right to respect for private life is recognized, along with the prohibition of torture (Art. 3) and the right to a fair trial (Art. 6), as one of the most important rights enshrined in the Convention<1>... So, paragraph 1 of Art. 8 of the 1950 Convention enshrines the right to respect for private and family life: everyone has the right to respect for his private and family life, his home and his correspondence. At the same time, the application by the courts of the 1950 Convention is inevitably associated with an understanding of the meaning and a preliminary interpretation of the provisions contained therein. Based on the above provision of the 1950 Convention, the right to privacy should be considered as complex in composition. legal institution consisting of a person's rights to privacy, respect for family life, home and privacy of correspondence, each of which requires legal protection and protection. As MV Baglai points out, the content of 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 kind of personal sovereignty, meaning the inviolability of his "habitat"<2>... This right includes a wide range of universal human values, the content and specificity of which are determined by the relevant spheres of human and civil life and are enshrined in the relevant legal norms. ———————————<1>Andonian B. Immigration and the European Convention on Human Rights. Solicitors Journal. 2001. Vol. 145 (12). P. 282.<2>Kadnikov B.N. To the question of the concept of a person's private life // International public and private law. 2007. N 1.

In the legal literature, privacy and the right to personal and family secrets are sometimes viewed as part of a broader legal construct - personal integrity. According to N.P. Lepeshkina<3>, personal integrity in its essence means legal regime, the basis of the relationship between the individual and society, the citizen and the state. This regime excludes unreasonable restraint, infringement of the rights and freedoms of individuals. The category of "personal integrity" contains the most important institution of natural law, which contains the idea of ​​an inextricable connection and interdependence of fundamental rights and freedoms: the right to life, freedom, personal and family secrets, protection of one's honor, good name, etc. At the same time, one should agree with the position many scientists that “in modern Russian legal science and legislation, as well as in international legal documents, there is no common understanding of the right to privacy and the definition of “ private life» <4>. ——————————— <3>Lepeshkina N.P. Privacy, what is it? // Law practice. 2005. N 2.<4>See: Kadnikov B.N. Decree. Op.

As a rule, in the legal literature, the concept of "private life" includes the widest possible range of relationships. The structure of these relations includes information concerning not only the official activity of a person, but also personal information. Everyone decides the issue of disclosing such information independently, and they should not be subject to direct state control... In practice, such ambiguity of the object of the legal relationship can lead to its arbitrary interpretation, unjustified restriction or expansion of its meaning. A number of researchers make an attempt to determine the legal content of the concept of "private life" by analyzing international acts and deciding whether this term covers family life, whether it implies the inviolability of the home, the secrecy of correspondence, whether it includes honor and reputation, encroachments on which are considered unacceptable ... As noted by PA Laptev, the answer to this question is given by practice. The European Court of Human Rights, in its decisions on various issues related to family life, housing and so-called private information, considered the latter from the point of view of Art. 8 of the 1950 Convention, that is, these issues are component privacy - independent right citizens<5>. ——————————— <5>See: Tarlo E.G. Right to privacy in Russia // Zakon. 2007. N 3.

In order to identify the content of the right to respect for private life, the interpretation of the basic concepts is essential. In the 1950 Convention, the concept of "private life" is designated by the term "private life". In the work of E. G. Tarlo, this term denotes a certain quality of life, determined by the real ability of a person to exercise autonomy and freedom in that sphere of life that can be called "private", and is also used to express a person's right to autonomy and freedom in private life. the right to be protected from intrusion by other people, authorities or any public organizations, and state institutions... Only the person himself or, in extreme cases, the law and the court, which meet the requirements of a legal, democratically organized state, can permit such an invasion. The British and Americans, who traditionally support the idea of ​​publicity in relation to the state and public life, at the same time, we are convinced that there is and should be a special area, information about which a person has the right not to make public - his private life<6>... In a judgment of 26 March 1985 in X and Y v. The Netherlands, the European Court of Human Rights recognized that private life encompasses both the physical and the moral aspects of an individual's life, including sex life. ———————————<6>In the same place.

As noted by the European Commission for the Efficiency of Justice<7>, for numerous Anglo-Saxon and French authors given right- this is the right of a person to live as he wants, without fear of publicity, but it is not limited only to this. The right to respect for private life also includes the right to establish and maintain relationships with others, especially in the emotional sphere, in order to develop and fulfill one's own personality. Subsequently, this position was reaffirmed by the European Court of Human Rights in its judgment of December 16, 1992 in the case of Nimitz v. Germany, which establishes that one cannot restrict private life only to an intimate circle, where everyone can live as he wants, and thus completely exclude the outside world from this circle. To some extent, respect for privacy also includes the right to establish and develop relationships with others. In its judgment of 22 February 1994 in the case of Burgharz v. Switzerland, the European Court of Human Rights drew attention to the fact that private life also extends to relations with other people in the professional field and in the field of business and does not exclude public law aspects. ———————————<7>

According to some scholars<8>It is no coincidence that the right to respect for the home is contained in Part 1 of Art. 8 of the 1950 Convention alongside the right to respect for private and family life, privacy of correspondence. The concept of "dwelling" by its conventional nature is characterized by the obligatory presence in it of a person's personal, family life, the inviolability of which within the dwelling is protected by a special norm of the 1950 Convention on the Respect of the Right to Housing. In this regard, the existing point of view in Russian legal science that the concept of "private life" applies to property relations, since a person has the right to dispose of his property, everything with what he directly owns, that is, his property<9>, v this case is not applicable. ———————————<8>See: Khaldeev A. V. On the concept of "dwelling" in the practice of the European Court of Human Rights // Housing law... 2007. N 5.<9>Zamoshkin Yu.A. Private life, private interest, private property// Questions of philosophy. 1991. No. 1.

In this regard, a quote from the concurring opinion expressed by the judge of the European Court of Human Rights A. Kovler in the case of Fadeeva v. Russian Federation(judgment of 9 June 2005) that “... the notion of dwelling has been included in the text of this provision of the 1950 Convention with the clear intention of defining a specific area of ​​protection that differs from private and family life”. A. V. Khaldeev, in turn, points out that there is a difference between the concepts of "private life" and "home". According to the author, this difference lies in the fact that the concept of "dwelling" (material by its nature object) is associated not only with the personal, but also with the property sphere of human rights. Within its borders, "dwelling" unites the indicated interests within the framework of the content of a single concept. In light of the provisions of Art. 8 of the 1950 Convention, the dwelling is a kind of repository of personal secrets, the private life of a person or a company (as an association of citizens)<10>... That is why, in some cases, the European Court of Human Rights, in confirmation of the existence of personal (subjective) ties with a home, in cases where their existence is not obvious, referred to the presence of citizens' personal property or correspondence in such a home, which constituted a part of their personal life. ———————————<10>See: Khaldeev A.V. Decree. Op.

In this regard, in its judgment of 18 November 2003 in the case of Volkova v. Russia, the European Court of Human Rights indicated that neither Article 8 nor any other provision of the Convention guarantees the provision of housing of a certain standard or in general. Thus, within the meaning of Art. 8 of the 1950 Convention, the concept of "dwelling" does not imply the right to the provision of any living quarters. This conclusion is also confirmed by the position expressed by the European Court of Human Rights in its judgment of 18 November 2004 in the case of Prokopovich v. Russia: having established that the apartment in which the applicant lived was a dwelling within the meaning of Art. 8 of the 1950 Convention, the court indicated that the concept of “dwelling” within the meaning of Art. 8 of the 1950 Convention is not limited to dwellings occupied by legal grounds or legally established. Dwelling is an autonomous concept that does not depend on the classification in national law, and the decision on whether the place of a particular residence is a dwelling that would entail protection on the basis of paragraph 1 of Art. 8 of the 1950 Convention depends on the factual circumstances of the case, namely on the existence of sufficient continuing ties with a particular place of residence. The practice of the European Court of Human Rights shows that one of the elements of the right to privacy is the human right to a favorable environment... This is primarily due to the fact that the text of the 1950 Convention does not contain provisions on environmental rights person. At the same time, these rights have been protected in recent years in a number of judgments of the European Court of Human Rights, deducting them from other rights contained in the 1950 Convention, primarily from the right to respect for private and family life, enshrined in Art. 8 of the 1950 Convention.For example, in its judgment of June 9, 2005 in the case of Fadeeva v. Russia, the European Court of Human Rights concluded that the state allowed economic activity a polluting facility in the center of a densely populated city. However, in the present case the State, although the situation with the enterprise required a special approach to those living within the sanitary protection zone, did not offer the applicant any effective solution to facilitate her relocation from the dangerous area. In addition, the enterprise carried out its economic activities with serious violations of environmental legislation, but, despite this, there was no indication that the state had developed or applied effective measures that would take into account the interests local population exposed to toxic plant emissions and would be capable of reducing industrial pollution to acceptable levels. In this regard, the European Court of Human Rights concluded that, despite the large powers at its disposal, the State failed to find a fair balance between the public interest and the effective satisfaction of the applicant's rights to respect for her home and her private life. Accordingly, there has been a violation of Art. 8 of the 1950 Convention. In the text of this Convention, family life, which is an integral component of private life, is distinguished independently, although, as the analysis of judicial practice shows, these two aspects are rather difficult to separate from each other. Attempts by the European Commission for the Efficiency of Justice and the European Court of Human Rights to formulate generalized definitions of the concepts of "family" and "family life" have not been crowned with success. First of all, this is due to the fact that the concept of "family" in the interpretation of Art. 8 of the 1950 Convention does not fully coincide with the content of a similar concept in the context of Art. 12 of the 1950 Convention establishing the right to marry and found a family. In addition, in relation to Art. 8 the content of this concept varies significantly depending on the circumstances of a particular case<11>. ——————————— <11>http: // www. echr-base. ru / pravo6.jsp

When establishing a violation of the right to respect for family life, enshrined in Art. 8 of the 1950 Convention, first of all, it is necessary to ascertain the existence of valid family relations... In this case, the European Court of Human Rights decides the question of the existence of family life on the basis of the facts considered in each specific case, and the general applied principle of the existence of close personal ties between the participants in the relationship. Analyzing the practice of the European Court of Human Rights, it can be concluded that it is impossible to determine in an exhaustive way what specific relationships can be attributed to family life.<12>... Thus, in its judgment of 19 October 2003 in the case of K. and T. v. Finland, the European Court of Human Rights indicated that the existence or absence of family life for the purposes of Art. 8 of the 1950 Convention is, in essence, a matter dependent on the actual existence of close personal ties in life. The case law of the European Court of Human Rights clearly states that the concept of "family life" in Art. 8 of the 1950 Convention implies the existence of family ties between married or unmarried partners. According to the European Court of Human Rights, this connection must also take place between parents and children, as well as other relatives. ———————————<12>Kilkali U., Chefranova E. A. European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to respect for private and family life, home and correspondence. Precedents and comments. M., 2001.

In its judgment of 21 December 2006 in the case of Bartik v. Russia, the European Court of Human Rights noted that the applicant and his parents had lived separately since at least 1997, when they moved to Germany. His elderly parents are not part of his main family. However, it has not been proven that they are dependent members of his family. The European Court of Human Rights considered that the applicant's arguments about the existence of family life between them are insufficiently proven and cannot be sure of them, in this regard, the complaint regarding the violation in this case of Art. 8 of the 1950 Convention is inadmissible. A similar position was expressed by the European Court of Human Rights in its judgment of February 5, 2004 in the case of Vorsina and Vogralik v. Russia. The applicants complained that the reproduction of their grandfather's name and image on beer bottles violated the right to respect for private and family life. While declaring the complaint inadmissible, the European Court of Human Rights also pointed out rather distant ties between the applicants and the relative. The right to respect for the secrecy of correspondence is one of the guarantees of the realization of the right to respect for private and family life, which follows from the essence of this right and which is indicated by the title of Art. 8 of the 1950 Convention In its judgment of 21 January 1975 in the case of Golder v. The United Kingdom, the European Court of Human Rights substantiated the possible connection of the right in question with the right to a fair trial in individual cases, emphasizing that the applicant's correspondence with a lawyer would constitute a preliminary step to initiate a civil case, that is, to exercise the right enshrined in another article of the 1950 Convention, namely in Art. 6. In addition, the European Court of Human Rights does not rule out that the restriction of the right to privacy of correspondence may entail interference with the exercise of the human right to respect for his home (judgment of the European Court of Human Rights of September 6, 1978 in the case of Klass v. Germany ). As S. A. Nasonov points out<13>, the scope of the 1950 Convention norm, which enshrines the right to privacy of correspondence, is determined by the approach of the European Court of Human Rights to the interpretation of the terms "correspondence", "interference by state bodies" in the exercise of this right, as well as the term "victim" of interference in the considered right. Originally, the term "correspondence" was interpreted by the European Court of Human Rights in a literal context, meaning the sending of a message in the form of a letter. The dissenting opinion of Judge Sir Gerald Fitzmaurice in the case of Golder v. The United Kingdom (European Court of Human Rights judgment of January 21, 1975) expressed the essence of such a legal position that the term "correspondence" denotes written correspondence, possibly including , telegrams or telex messages, but not oral person-to-person communication by telephone or by signs or signals. However, in the judgment of the European Court of Human Rights of September 6, 1978 in the case of Klass v. Germany, the European Court of Human Rights for the first time gave a broad interpretation of the term "correspondence", noting that, although telephone conversations were not specifically indicated in paragraph 1 of Art. 8 of the 1950 Convention, such conversations are included in the concepts of "personal life" and "correspondence", which this article contains. Subsequently, the European Court of Human Rights has further expanded the interpretation of the term "correspondence" in its decisions. ———————————<13>http: // sergei-nasonov. narod. ru / Letter. doc

In a judgment of 2 August 1984 in Malone v. The United Kingdom, the European Court of Human Rights shared the applicant's arguments that his right to respect for privacy of correspondence had been violated, as his telephone had been placed under control allowing government bodies record with whom and for how long the subscriber is talking on the phone, and included the practice of timing in the definition of correspondence in the context of paragraph 1 of Art. 8 of the 1950 Convention In the above-mentioned judgment in the case of Golder v. The United Kingdom, the European Court of Human Rights encompassed the concept of "correspondence" not only sent, but also unsent letters, which also expanded the scope of this right. Based on the foregoing, it follows that the right to inviolability of private life is a multifaceted subjective right of a person and a citizen, which has incorporated a complex of political, social and other rights of an individual along with specific components inherent only to him and the resulting powers of its carriers, therefore, the European Court of Human Rights often establishes the existence of private life in relation to an individual case, that is, it proceeds from the fact that, in certain circumstances, these relations fall under the characteristics of this concept.

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Civil rights, like everyone else, are certainly protected by European legality. The main ones are the right to respect for private and family life, NS equal to marriage and the right to a fair trial... Complaints about their violations are submitted to the European Court of Human Rights (hereinafter - the ECHR) in the same manner as everyone else.

This article will disclose the basic civil rights that are protected by the European Convention for the Protection of Human Rights and Freedoms and Protocols thereto (hereinafter referred to as the Convention), with some examples from the practice of the ECHR on civil affairs for clarity. If you need to apply to the ECHR, read the article yourself.

Private life in the understanding of European legality

In our time, such a right as respect for private and family life is protected both by the norms of the law of each individual state, and by various documents of an international nature. This right is enshrined in the Convention in Article 8. According to European jurists and law enforcement officials, private and family life are closely interconnected, therefore they were combined into one article.

Purely theoretically, this state of affairs does not raise any objections. But, nevertheless, in practice, lawyers faced some problems associated with this association.

Thus, the Convention under the respect of the right to family life means respect for the rights of each family member individually. At the same time, global standards international law, including the Universal Declaration of Human Rights, emphasize the family as a whole as one of the basic foundations of society.

Article 8 of the Convention

Art. 8: Everyone has the right to respect for his private and family life, his home and his correspondence.

Earlier, in Article 8 of the Convention, instead of the term “respect”, another term was used - “inviolability”. Although, at first glance, it might seem that such a substitution of concepts reduced the degree of protection of this right, in practice it turned out that the term “respect” is a more apt formulation. In its meaning, it is more flexible, which allows legislators to more effectively develop the means of protecting this right. The flexibility of the wording also makes it possible to more sensitively respond to changes that occur in the life of society quite often and in one way or another change the idea of ​​the family and personal life.

The right to respect for private life enshrined in this article should be understood as follows: neither an ordinary person, nor a person in power, nor the authorities themselves can interfere in your personal life without good reason (which are spelled out in the laws). In its Everyday life in any country that has proclaimed democracy, any individual has the right to live his own life without any control over it.

Thus, the disclosure of any personal or family secrets is also a gross violation of the right to privacy. It is this aspect of personal life that the ECHR defended in its judgment in the case “Konovalova v. Russia”. The Russian woman complained that medical students were present during her birth. No consent was obtained for this. The Russian citizen referred, among other things, to the fact that these persons had not yet assumed the obligation to keep medical secrets. The court took into account her arguments and found in her case a violation of Article 8 of the Convention.

In general, the European Themis interprets private life rather broadly, which allows it to cover both its current aspects and aspects that may appear in the future.

Family life includes the relationship between husband and wife, as well as the relationship between parents and their children. In addition, here the rights of each family member are considered separately.

Thus, the ECHR recognized the right of a French citizen in the case of Odevre v. France to know about her real origin. The French authorities refused to give her information revealing the secret of her birth (about her biological parents). The court found in this decision of the French side a violation of Article 8 of the Convention.

Family creation and European legality

The institution of the family has been especially carefully protected since ancient times. In the beginning, the family was protected by the relevant religious norms and customs. At that time, humanity was still at a primitive level of development, but even then they realized the importance of families in the life of the tribe. No wonder the core of the tribe was precisely the clan, which included several families, which were united into a single whole by consanguinity.

Over time, the primitive concept of the family has undergone significant changes. Modern laws of most states recognize husband, wife and their children as family members.

Article 12 of the Convention

Art. 12: Men and women of marriageable age have the right to marry and found a family in accordance with the national legislation governing the exercise of this right.

Currently, the right to marry is enshrined and protected by the laws of all civilized states of the world. In addition, it is enshrined at the level of international acts, including article 12 of the Convention.

In general, it should be noted that in modern world, including in European countries, over the past two decades, the number of so-called de facto marriages has sharply increased (in other words, this is cohabitation without registering a couple).

Another trend in the modern world is the decline in the marriageable age. So, in some European countries, it is allowed, with the consent of the parents, to create their own family from the age of 14. In Russia, on federal level the right, with the consent of parents, to create a family from the age of 16 is enshrined. But some constituent entities of the Federation have established the 14-year age by their laws.

Traditional and non-traditional marriages

Since its adoption, Article 12 of the Convention has established and protected the right to found a traditional family (that is, it is a marriage between a man and a woman). In recent years, representatives of the so-called “sexual minorities” have come to the ECHR with a request to recognize their relationship as legal and to allow them to register their marriage.


This state of affairs gave rise to a lot of disputes between various social and political forces. Representatives of the liberal part of the population advocate the legalization of same-sex marriage and the equalization of such families in rights with traditional families. Representatives of the conservatively-minded part of the population express complete disagreement with this, opposing giving this kind of relationship the status of legitimate. As a result of this confrontation, some European countries (there are 11 in total) adopted amendments to their family law... Thus, having legalized same-sex marriage unions.

In Russia, however, such a right is not established by law. Same-sex couples are not eligible for registration.
The ECHR has adopted the following position regarding same-sex marriage. The European Themis does not put forward strict requirements for the participating countries to legitimize such unions. Representatives of numerous LGBT movements in Europe were unhappy with this court decision.They have lost their last hope of equating same-sex families in status with traditional ones.

Thus, the ECHR ruled against a Finnish citizen Heli Hemeleinen. After the sex change operation performed by him, the Frenchman asked to recognize his marriage, which he entered into while still a man, to be recognized as legal. The court substantiated its position by the fact that in Finland the right of same-sex couples to found a family is not legalized. By the way, Finland is the only Scandinavian country that adheres to the concept of a traditional family.

The same ECtHR judgment pronounced in the case of French citizens Shapin and Charpentier. The court did not see human rights violations in the refusal to register their couple in their homeland.

In fairness, it is worth noting that even the famous for its liberal views, the United States has a mixed opinion about the legalization of the right to form same-sex unions. Supreme Court The USA gave this right to consideration of each state separately. On aboutAt the state level, the United States refused to recognize the creation of same-sex families as a basic human right.

Fair Hearing in Civil Cases before the Court and the Position of the Court

According to the official position of the ECHR, the right to the proper administration of justice is not subject to restrictions under any circumstances. It is enshrined in article 6 of the Convention. This article, in particular, guarantees a fair and comprehensive consideration of any civil case, as well as the protection of all participants in the civil process. It follows from this that any violation of these rights may become the subject of legal proceedings at the ECHR.

The term "justice", first of all, includes the equality of rights of participants in civil proceedings, regardless of their official position or other privileges. Discrimination on any grounds is also prohibited. Judges must treat people as legally equal regardless of the circumstances.


Also, evidence in any civil case must be proper (that is, obtained in accordance with all the rules established by law). Evidence obtained from "dubious sources", as well as in violation of legal procedure, is not allowed to be attached to the case.
It is also unacceptable to suppress facts or ignore them if they can seriously affect the outcome of the case.

Thus, the court found a violation of this right in the case "Suominen v. Finland". The woman complained that district court did not attach to the case some of the evidence that she provided.

Complaints about the duration of litigation for civil cases. Examples include the cases Plaksin v. Russia and Voitenko v. Ukraine. Such cases are associated with contradictions that arise due to the vagueness of the concept of “ reasonable time», The interpretation of which is usually within the competence of the judge.

A fairly large percentage of cases that are recent times examined by the European Court, are occupied by individual complaints received from the applicants regarding the violation of their privacy.

Recently, you can often hear the phrase

I will defend my rights in the European court.

But not everyone can clearly understand what kind of court it is and what rights can actually be defended in it. Distinctive feature of the work of this court is the obligation to appeal not to the person who actually violated certain rights the applicant, but to the state.

By the way, the generally accepted concept of "court" is completely far from the current European court. They have only one similarity - both of these bodies are engaged in the protection of violated subjective rights. Only the European Court can protect exclusively those rights guaranteed by the Convention. It is worth noting that this Convention contains few such articles that have clearly laconic wording, which cannot always be said about domestic legislation. However, its development legal regulations, reflected in the Convention, are received in a new format precisely in the decisions of the European Court.

Protection subjective rights on the international level

Format international protection fixed international law... This type of protection is a fairly new phenomenon. Its history goes back to 1950, when the Council of Europe adopted the Convention for the Protection of Human Rights and Fundamental Freedoms. The treaties adopted at the international level, based on this Convention, inherently establish obligations for countries to comply with certain norms. The state must guarantee all the rights established by treaties, as well as refrain from taking actions aimed at violating the rights and freedoms of citizens. Practice has developed several methods of relative control of compliance international standards in the field of human rights.

  • Mechanism state supervision and control, which consists in the fact that the countries that signed the document on human rights will have to create the so-called executive agency that has the right to make recommendations and request reports from states. This kind of mechanism should be called political, since its use is impossible for a private person.
  • Mechanism for monitoring the observance of human rights. The basis of its functioning is the consideration of an individual appeal initiated by a private person. The procedure for going to court is enshrined in three regulations: European Convention, International Covenant and Optional Protocol. The norms established in the above acts cannot restrict the state regarding the provision of a large number of rights than was provided for by international law.

For those persons who have a desire to apply to the European Court, it should be understood that there are clearly regulated rules regarding the filing of a complaint. It is on their strict observance that the issue of accepting the submitted application for consideration will depend. To apply to international legal authorities, the conditions of admissibility established by the International Covenant on Civilians must be observed, as well as political rights, European Convention, Optional Protocol.

The storage of personal data falls within the scope of a person's private life, protected by Article 8 of the European Convention.

Article 8 provides:

  • 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  • 2. Interference by public authorities in the exercise of this right is not allowed, except in cases where such interference is prescribed by law and is necessary in a democratic society in the interests of national security and public order, the economic welfare of the country, in order to prevent disorder or crime, to protect the health or morality, or to protect the rights and freedoms of others.

Article 8 § 1 of the Convention protects separate but related and potentially overlapping rights, namely: the right to respect for private life; the right to respect for family life; the right to respect for the home; and the right to respect for correspondence.

In the jurisprudence of the European Court of Human Rights, the concept of "privacy" covers the physical and psychological integrity of the person ECtHR, Pretty v. the United Kingdom, Judgment of 29 April 2002. and includes numerous aspects of a person's physical and social self-identification ECtHR, Mikulizh v. Croatia, Judgment of 29 7 February 2002 ..

Elements such as gender, name, sexual orientation and sexuality fall under the privacy protection of Article 8 of the ECtHR Convention, Bensaid v. the United Kingdom, Judgment of 6 May 2001 ..

In addition to the person's name, personal and family life may include other means of self-identification and maintaining ties with the family ECtHR, Burghartz v. Switzerland, Judgment of 22 February 1994 ..

Information about the health of a person ECtHR, Z. v. Can be an important element of personal life. Finland, Judgment of 25 February 1997., its nationality In particular, in Article 6 of the Data Protection Convention, personal data relating to the nationality of the subject are assigned to special categories of data, along with other confidential information about a human..

In addition, Article 8 of the Convention protects a person's right to personal development, as well as his right to establish and develop relationships with others and the outside world ECtHR, Friedl v. Austria, Judgment of 31 January 1995. Privacy also includes elements related to the person's right to his image ECtHR, Sciacca v. Italy, Judgment of 11 January 2005 ..

In decisions on cases Klaas & others v. Germany of September 6, 1978, Schenk v Switzerland of July 12, 1988, Kruslin v. France of April 24, 1990, the ECtHR indicated that when deciding on permissible interference with private life, it is necessary to correlate the interests in conflict: the public interest in establishing the truth in the case and the private interest in maintaining the confidentiality of private life.

This position has been confirmed by the European Court of Human Rights in subsequent decisions.

V general view The conditions for interference with the right to privacy carried out without the consent of the individual can be summarized as follows:

  • · Legal basis for such a limitation there must be a real conflict between the private interest of keeping privacy and the more significant public interest state security, public safety(public peace), the economic security of the state (the economic well-being of the country), the prevention of disorder, the prevention of crime, the protection of health or morality, the protection of the rights and freedoms of others.
  • · Intervention must be necessary, i.e. in each case, it must be proven that without limiting the right to privacy, harm to the protected public interest will inevitably be inflicted.
  • · The restriction on the right to privacy should be provided for by national law, and the reasons for such restriction must be clearly and comprehensively stated in national law.

The imposition of a restriction on personal right can be carried out only by decision of the competent judicial authority.

  • Limitation of the right to privacy cannot be absolute - it can be carried out within a strictly defined time, measures must be established by law judicial control beyond this limitation.
  • · In addition, the European Court of Human Rights has indicated that interference with privacy is only permissible if procedures are in place to ensure that surveillance measures comply with the conditions established by law. inviolability confidentiality information

The Court has indicated that the protection of personal data is essential to a person's ability to exercise the right to privacy and family life ECtHR, S. and Marper v. the United Kingdom, Judgment of 4 December 2008 ..

Mere storage of information relating to a person's private life constitutes an interference with the exercise of his rights within the meaning of the provisions of Article 8 of the Convention: "The retention by a public authority of information about the private life of individuals is an interference in terms of Article 8. The subsequent use of the stored information does not change this conclusion." ECtHR, Leander v. Sweden, Judgment of 26 March 1987 ..

However, whenever asked whether the personal data stored by the authorities affect any aspects of a person's private life, the Court takes into account the conditions in which the information was obtained, the nature of the information and how it is used.

In the practice of the ECHR, many cases have been considered in which the issue of data protection was raised, including those related to the interception of communications For example, ECtHR, Malone v. the United Kingdom, Judgment of 2 August 1984., various forms of surveillance ECtHR, Klass and Others v. Germany, Judgment of 6 September 1978., the storage of personal data by ECtHR authorities, Leander v. Sweden, Judgment of 26 March 1987 ..

The ECtHR found that Article 8 of the European Convention not only obliges states to refrain from actions that violate the right to privacy, but also - in certain circumstances - to bear positive obligations to ensure effective respect for private and family life ECtHR, I. v. Finland, Judgment of 17 July 2008 ..

In accordance with the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, "Personal data" are defined as any information concerning a specific or identifiable natural person (“data subject”) Convention 108, Article 2 (a) ..

Since the right to protection of “personal data” has evolved from the right to respect for privacy, natural persons are the main beneficiaries of data protection.

but arbitrage practice ECtHR shows how difficult it can be to separate personal and professional life ECtHR, Rotaru v. Romania, Judgment of 4 May 2000, para. 43 .. Moreover, according to legal positions By the ECHR, conventional rights are guaranteed not only to individuals, but to everyone.

Thus, the question of whether data protection only extends to individuals is debatable. However, in the case Bernh Larsen Holding AS and Others v. Norway ECtHR, Bernh Larsen Holding AS and Others v. Norway, Judgment of 14 March 2013. The European Court, having admitted the application legal entities on a violation of the right to data protection, examined it in terms of a violation of the right to respect for home and correspondence, rather than the right to data protection.

The complaint by the Norwegian companies concerned the tax authority's obligation to provide auditors with copies of all data from a server that the companies shared. The ECtHR ruled that such an obligation constituted an interference with the applicant companies' right to respect for “home” and “correspondence” under Article 8 ECHR.

At the same time, the court concluded that tax authorities provided effective and adequate guarantees against abuse (the company's demand was notified in advance; company representatives were present during the audit; data was subject to destruction immediately after the completion of the tax audit).

Thus, a fair balance was struck between the applicant companies' right to respect for “home” and “correspondence” and the need to protect the personal data of employees, on the one hand, and the public interest in ensuring effective tax controls, on the other hand. The court found no violations.

Convention No. 108 extends the right to data protection to individuals, but contracting states can extend it to legal entities by providing appropriate safeguards in domestic law.

In accordance with practice of the ECtHR information contains personal data if:

  • (1) individual identified by available information; or
  • (2) the person has the “identifiable” feature, that is, it can be identified using additional data.

Regarding the second criterion, the Committee of Ministers of the Council of Europe indicated in the recommendations of the Council of Europe, Committee of Ministers, Recommendation No. R Rec (90) 19 on the protection of personal data used for payment and other related operations, 13 September 1990. that a person cannot be considered as possessing the attribute of “identifiable” if his “recognition” requires indefinite time or other costs.

Both types of information are equally protected. The ECtHR has repeatedly pointed out that the concept of “personal data” is understood in the same way by the European Convention and Convention 108 ECtHR, Amann v. Switzerland, Judgment of 16 February 2000, para. 65 ..

Face identification implies the presence of elements that describe a person in a unique, different way and make him recognizable. A prime example of an "identifier" is a person's name. In the case of public figures, an indication of the person's position may be a sufficient marker for identification.

The nature of "personal data" is such that in different situations any information related to a person can be attributed to it. For example, personal information is a conclusion about the quality of an employee's work stored in his personal file, even if it reflects only the value judgment of the manager.

The so-called “special categories” of personal data - or “sensitive data” - need a heightened degree of protection. Convention No. 108 refers to such data as follows:

  • * data on race or ethnicity;
  • * data on political views, religious or other beliefs;
  • * data on health or sexual life;
  • * data on a person's criminal record.

Personal data can be presented in any form - written or oral messages; Images ECtHR, Von Hannover v. Germany, Judgment of 24 June 2004 .; video ECtHR, Peck v. the United Kingdom, Judgment of 28 January 2003 .; sound ECtHR, P.G. and J.H. v. the United Kingdom, Judgment of 25 September 2001, paras. 59, 60 .; information in in electronic format; as well as human tissue samples, as they carry unique information about DNA.

The right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. Interference by public authorities in the exercise of this right is not allowed, except for the case when such interference is prescribed by law and is necessary in a democratic society in the interests of national security and public order, the economic well-being of the country, in order to prevent disorder or crime, to protect health or morality or protection of the rights and freedoms of others.

Article 8 is divided into two parts. The first one establishes the rights guaranteed to every person within the framework of this article - the right to respect for his private life, family life, his home and correspondence. The second says that these rights are not absolute and can be limited by the state, but only on the basis of the law and in the interests directly listed in it. In the second part of Art. 8 also indicates the circumstances in which the authorities can reasonably challenge the rights contained in part 1 of the same article. Part 2 of Art. 8 includes only those reasons for interference that are in accordance with the law and are necessary in a democratic society in pursuit of one or more legitimate goals and which can be considered by the state as acceptable restrictions on the rights of every person set out in Art. eight.

Everyone's right to respect for his family life is proclaimed by part 1 of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). This right, in accordance with the concepts of the typology of human rights that have developed in international law, refers to civil (personal) rights that ensure the freedom of an individual, primarily from illegal interference by the state in his private life and private interests. They are aimed at protecting and developing human individuality and are based on the concept of negative freedom, which implies the absence of coercion, the ability to act according to one's own choice, without being subject to interference, including from the state.

The main purpose of the article under consideration is to protect the individual from arbitrary interference of state authorities in his personal and family life.

Although the concept of "family life" in the practice of the European Court is interpreted very broadly (for example, the issue of the possibility of recognizing same-sex sexual relations as family life was discussed, the right to family life between an actual father and a child with whose mother such a father stopped living together even before birth was recognized) child), it has traditionally been limited to personal relationships between individuals, which for the most part are regulated by family law.

As follows from the above positions, Article 8 of the Convention, following the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966), emphasizes respect for private and family life and the prohibition of interference by public authorities. Thus, the private (personal, family) life of a citizen is fenced off, isolated from the state. This is the sphere civil rights, which are designed to ensure the independence of the citizen from the arbitrariness of state power. The content of Article 8 of the Convention does not affect any specific legal relationship arising between family members or between the family and the state. Such relations, for example, property, including inheritance, or relations regarding the provision of state support to families with children, including the provision of parental leave, the payment of benefits, the establishment of a preferential procedure for the use of medical and cultural institutions, are regulated by the national legislation of the states. - members of the European Union.

The principles of Art. 8 of the European Convention were enshrined in the norms of the Constitution of the Russian Federation. In Art. 23 of the Constitution of the Russian Federation it is written: “Everyone has the right to inviolability of private life, personal and family secrets, protection of his honor and good name. Everyone has the right to privacy of correspondence, telephone conversations, postal and telegraph communications. Limitation of this right is allowed only on the basis of judgment”. Article 24 of the Constitution of the Russian Federation prohibits the collection, storage and dissemination of information about a person's private life without his consent. Article 25 establishes the inviolability of the home. These constitutional norms were developed and concretized in sectoral legislation.

The Family Code of the Russian Federation (hereinafter referred to as the RF IC) recognizes only legally formalized relations between a man and a woman as a marriage; actual marital relations do not entail legal consequences. In this regard, it should be noted that the European Court has expanded the concept of family life, taking into account modern changes in social and cultural models of family life. In specific cases, the Court has recognized the existence of family life between unmarried persons. This decision was taken in the case of Johnston v. Ireland. A decisive factor in making such a decision, as convincingly shown by Dr Kilkaley, was the enduring nature of the applicants' relationship and the fact that, living with their children, they did not differ from a family based on marriage.

With regard to the rights of children born out of wedlock, Russian legislation, like the European Court of Justice in applying the Convention, proceeds from the full equality of the rights of children born in wedlock and children born out of wedlock.