Judicial chambers of the Supreme Court for Administrative Cases. Review of judicial practice of the Supreme Court of the Russian Federation in administrative cases. An appeal in an administrative case
Violation of the privacy of correspondence or other method of confidential exchange of information should be understood as unauthorized acquaintance of a third party with data transferred from one person to another.
When convicted of a violation, appoint, relying on the provisions of Art. 138.
Under unauthorized acquaintance it should be understood:
- lack of permission for acquaintance from at least one of the participants in the information exchange process;
- absence judicial basis to familiarize yourself with the correspondence of other persons.
O legal meaning composition of violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other messages in the national Criminal legislation of the Russian Federation will be described in the article.
Personal correspondence
Unauthorized access to personal information contained in personal private letters / messages / emails sent to another individual / from another h. l. via mail, mobile communications (sms, mms) or the Internet (via any social network, skype, asya).
Phone conversation
Unauthorized acquaintance with the content of telephone conversations, including long-distance, using a parallel telephone or by connecting specialized devices to the network, recording conversations on any data carrier.
Mail message
Unauthorized familiarization with information transmitted using the capabilities of telegraph lines.
Analysis of the crime
From what moment is the violation of the secrecy of correspondence reasonably considered to be over? The crime is considered committed if the intruder has read the content of any type of message.
Familiarization without permission with the information content of messages transmitted by individuals to each other in any way, is a crime, since it violates the constitutional rights of a citizen of the Russian Federation (part 2 of article 23).
Corpus delicti - formal... Object: the right of a citizen to nondisclosure of information content of correspondence, messages received through mobile, telegraph communications, Internet capabilities.
Objective side: familiarization with the content of messages transmitted by any means from one private person to another. Not really for correspondence conducted by persons in the conditions of institutions restricting the freedom of offenders.
The size of the information is not a factor affecting degree of punishment.
Subject: a person who has achieved sixteen years of age.
Subjective side: presence of intent... Getting acquainted with someone else's personal information without permission, a person understands that he is acting unlawfully.
Criminal law characteristics: violation constitutional law another man a person who has reached the age of sixteen, acted on intent, used or did not use special means in the process.
Qualifying attributes
Conscious familiarization with the content of someone else's correspondence / telephone conversations / messages of any kind, without obtaining the permission of one of the participants in the communication or the judicial authority.
The fact of the crime is confirmed conviction of illegal acquaintance with information of a private nature... Persons of sixteen years of age and older are subject to punishment.
A similar crime by an official who have used personal influence or the equipment at their disposal that helps to obtain secret information, entails increasing the degree of punishment.
Punishment and responsibility
Violation of confidentiality of correspondence unofficial person punishable by:
- up to 8,000 rubles;
- a fine equal to salary, other income for a period of up to 6 months;
- for up to 360 hours;
- (up to a year).
Violation of confidentiality of correspondence official punishable by:
- the imposition of a fine from 100 to 300 thousand rubles;
- a fine equal to salary, other income for a period from one to two years;
- deprivation of the right to work for, to engage in certain types of activities for 2-5 years;
- compulsory work (up to 480 hours);
- forced labor (up to 4 years);
- (up to 4 months);
- (up to 4 years old).
When convicted of illegal production / purchase / sale of equipment, for obtaining confidential information, punished, according to Art. 138 h 2 of the Criminal Code of the Russian Federation:
- by imposing a fine of up to 200 thousand rubles;
- a fine equal to salary, other income for a period up to 18 months;
- restriction of freedom (up to 4 years);
- forced labor (up to 4 years) with deprivation of the right to certain activities (up to 3 years) / without deprivation of the right;
- imprisonment (up to 4 years) with deprivation of the right to certain types of activities (up to 3 years) / without deprivation of the right.
Maximum punishment for violation of the secrecy of telephone conversations is determined by the court, taking into account the provisions of Art. 138 of the Criminal Code of the Russian Federation and taking into account the motives of the person who committed the offense, the conditions under which it was committed.
Examples from judicial practice
Case 1
The company hired an employee to monitor any information received / sent via corporate email.
In the course of activities personal unincorporated e-mail of one of the employees was hacked organization, after which it was established that he issued trade secret competitors of the enterprise.
At the trial, the data obtained by hacking the defendant's e / mail were not taken into account, since there was no legal permission to obtain them.
Case 2
Telecommunications company employee for a fee supplied information about the telephone connections of citizens... The court sentenced compulsory works(400 hours).
Case 3
Driven by jealousy, the citizen was able to access the contents of letters in e / mail registered on ex-wife husband, her page in social network... Before being caught in a crime the offender repeatedly received the victim's personal information... By a court decision, the accused was sentenced to a fine of 24 00 rubles, in addition, she was ordered to pay monetary compensation 10,000 rubles for the victim.
Even reading a short SMS message intended not for you, from the point of view of the law is a violation of Article 138 of the Criminal Code of the Russian Federation... And it doesn't matter how kinship you have with a person, personal "territory" which you are breaking.
Optionally, if you are caught looking at data that is not intended for you, a person has the right to sue for such an expression of curiosity.
Moreover, the court, in 99% of cases, will be on the side of the offended and will award punishment. For violation of the secrecy of correspondence, criminal liability is threatened.
Human curiosity has helped to make discoveries and create ingenious inventions for centuries. But when it comes to personal communication, interest in outside correspondence or negotiations can turn into criminal prosecution for.
Basic concept
Can people in our time have any secrets? Modern technologies in their achievements, they are not far behind spy films. Means for eavesdropping, peeping and fixing audio and video information are becoming more sophisticated and invisible.
The same can be said about correspondence - the traditional, "paper" method or through. Personal data protection programs have been competing for a long time, and the results are very different.
And yet, not only the state or large companies can count on keeping their secrets. Each of us also has the right to have secrets.
Our letters, phone calls, telegrams - everything is inviolable. This is the secret of negotiations, correspondence, messages.
The following video explains more about privacy and privacy violations:
Violation of privacy of correspondence and telephone conversations
Now let's figure out the relevant norms and nuances.
Features of the atrocity
Legal characteristic
In the Criminal Code, three articles follow one after the other: 137, 138 and 139 of the Criminal Code of the Russian Federation in relation to violation of the secrecy of correspondence. They are dedicated respectively, correspondence / negotiations,.
These articles are similar in many ways. In all cases, attackers encroach on constitutional freedoms their victims. Why, then, is such a division made?
The point is in the intricacies. Peeping at other people's letters and eavesdropping on private conversations does not always indicate the desire of the culprit to collect information and truly invade someone's life. Sometimes we are really talking about curiosity, which can be very unhealthy. That is why there is a narrow norm that concerns oral / written communication between people.
When it comes to mystery?
Sometimes the question arises: when can you still talk about a secret? After all, sometimes people are on the street or in public transport literally publicly communicate with the interlocutor (by phone or in a direct conversation) on very intimate topics. Can those around you be considered criminals?
In such cases, no. After all, people do not undertake anything in order not to be heard. The victim of a real crime must rely on secrecy: for example, to conduct a conversation in a secluded place and count on the absence of prying "ears".
Read on about the corpus delicti of restricting the right to privacy of correspondence.
Corpus delicti
Here it is necessary to indicate the formal composition. Once the eavesdropping / eavesdropping has taken place, the crime is over. For qualification, it does not matter what the guilty's motives were, the goal is also not important.
- The atrocity with secret correspondence infringes on the human rights specified in the Constitution of the Russian Federation. There is an objective side to the violation of this very right.
- The characterization is completed by an indication of direct intent, as well as the subject of the atrocity. Responsibility - (plus confirmed).
- The crime can be qualified. It becomes such if the guilty person - executive who has abused her position in the service.
Now let's take a closer look at the norms of which laws are violated by the violation of the principles and the right to secrets of correspondence and telephone conversations.
Norms
- Above already mentioned constitutional guarantees... Let's concretize them. The second part of the 23rd article of the Constitution speaks about the secrecy of correspondence and other messages.
- Article 138 of the Criminal Code is devoted to punishments for violations in this area.
- Any administrative regulations absent.
We will tell you further about the responsibility for violating the secrecy of personal correspondence.
Punishment and responsibility
Article 138 provides for eight options for punishment. The severity depends on the specific circumstances and qualifications:
- in the form of a certain amount (maximum 300 thousand rubles);
- salary / income as a penalty, not more than two years;
- for a period of two to five years;
5.18. ABOUT THE SUBJECT OF THE SECRET OF CORRESPONDENCE, TELEPHONE CONVERSATIONS, MAIL, TELEGRAPH AND OTHER MESSAGES
Fedotova N.V., Post-Graduate Student, Moscow Institute of Law
This article is devoted to the consideration of the issue related to the subject of secrecy of correspondence, telephone conversations, postal, telegraph and other messages and its criminal law significance.
The issue of the right to privacy of correspondence, telephone conversations, postal, telegraphic and other messages is fundamentally important for understanding the direct object of the corpus delicti provided for in parts 1 and 2 of Article 138 of the Criminal Code. Russian Federation... It should be noted that in the criminal law literature it is usually stated that information (information) constituting a particular secret is the subject of relevant crimes1. This position introduces serious confusion in the criminal-legal assessment of the offense, and also raises a number of fundamental objections. In science, the opinion was expressed that the distinction between the subject and the object of the crime does not matter, since the very need for an independent study of the subject of the crime is absent, since the subject of the crime is just component the object of the crime 2.
That is, the subject of the crime is an optional element of the corpus delicti and is an element of the object of the encroachment. We can say that the subject of a criminal encroachment is a thing of the material world that has a value estimate, the impact on which entails causing harm to the object of the criminal encroachment.
The object of a crime is social relations, goods, values, protected from criminal encroachments by criminal legislation, with the establishment of the object of the crime, which - social concrete relations are changed, destroyed by criminal encroachment.
Based on the above, the literature concluded that the very problem of the theoretical delimitation of the subject and object of the crime was far-fetched.
The issue of the subject of the crime and its criminal law implications evoke extensive and, in our opinion, quite fair criticism. We will not go into all the subtleties of this theoretical dispute in detail, since it is outside the scope of the
1 So, for example: "The subject of this crime may be information contained in a letter, telegram or other messages." See: Commentary on the Criminal Code of the Russian Federation / Otv. Ed. A. I. Boyko. - Rostov-on-Don, 2002. - S. 323.
2 Nikiforov B.S. The object of a crime on the Soviet
fishing law. M., 1960.S. 130-132.
my research. It should be noted that in the domestic science the position prevailed, according to which it is necessary to separate the concepts of “subject of crime” and “object of crime” not only within the framework of the doctrine of criminal law, but also in law enforcement - first of all, in the legal assessment of the offense. To date, the following traditional approaches have been developed as to what is meant by the subject of a crime:
1) the thing in connection with or in relation to which the crime is committed; in this case, harm is caused not to the object, but to the object of the crime - the object of the crime does not suffer any harm;
2) a thing of the material world, affecting which, the subject causes harm to the object of the crime;
3) specific material object, in which certain properties are manifested public relations(the object of the crime), by influencing which, harm is caused in the sphere of these social relations3.
Common to all these positions is the fact that the subject of a crime is understood as any material thing that has physical characteristics. Of course, one cannot fully agree with the position that “no harm” is inflicted on the subject of the crime by the encroachment. It is quite possible to actually harm the subject of the crime, but not at all necessary.
Let us analyze the understanding of the subject of the crime in relation to the secrecy of correspondence, telephone conversations, postal, telegraph and other messages. The secret is initially made up of any information, information. The question is, can the information (information) be regarded as the subject of a crime? If the subject of a crime is, first of all, a thing of the material world, then any information carrier may have such characteristics: a written document, a computer disk, a magnetic tape, etc.
The Federal Law of the Russian Federation "On Information, information technology and on the protection of information ”dated July 27, 2006, information also means non-materialized information about persons, objects, facts, events, phenomena and processes reflected in images, including verbal ones. Indeed, it is quite possible to violate the secrecy of correspondence, telephone conversations, postal, telegraph and other messages, which is not reflected in the material medium. Moreover, in part 1 of Art. 138 of the Criminal Code of the Russian Federation implies criminal prosecution just for the violation of the secrecy of correspondence, telephone conversations, postal, telegraph and other messages, which is not at all reflected in the material medium.
This, for example, is the case with the violation of the confidentiality of information transmitted through telephone conversations. In the case of violation of "other messages", the issue is resolved in the same way (e-mails, paging messages, SMS messages, etc.)
In other cases, information constituting the secret of personal information is always recorded on a tangible medium (letter, telegraph communication). It should be noted that the deed is qualified under Art. 138 of the Criminal Code of the Russian Federation, regardless of whether there was one or another
3 Korzhansky N.I. Object and subject of criminal legal protection... M., 1980.S. 103.
BUSINESS IN THE LAW
confidential information, constituting a secret of personal information, is objectified in a material medium or not. Based on the above, it can be concluded that information (information) constituting the secret of correspondence, telephone conversations, postal, telegraph and other messages cannot be regarded as the subject of a crime in the generally accepted sense of this definition.
For a more illustrative example, refer to current legislation... So, in the preamble of the RF Law "On state secrets"(As amended by the Federal Law of the Russian Federation of October 6, 1997, with amendments and additions of January 1, 2005) it is indicated that this law regulates relations arising in connection with the classification of information as a state secret, its classification or declassification and protection in the interests of ensuring the security of the Russian Federation. So the mystery (in this case state) underlies certain emerging relations, social relations4.
We believe that the information that constitutes the secret of correspondence, telephone conversations, postal, telegraph and other messages is also the fundamental basis of the relations arising on their basis between the subjects, in this case - the subjects of the criminal legal relationship arising from legal fact- unauthorized (illegal) violation of the inviolability of information secrecy. As you know, the Criminal Law considers its main task to be the protection of certain rights, freedoms and interests of a person, society, state and humanity as a whole (part 1 of article 2 of the Criminal Code of the Russian Federation). At the same time, in the theory of criminal law, it is traditionally believed that the articles of the Special Part of the Criminal Law take under protection those social relations that, in theory, have received the definition of the “object of crime”. The object of criminal law protection is understood as social relations that are harmed by a crime or that are threatened by a crime.
Such general definition the object of crimes was the starting point for identifying the signs and essence of social relations themselves and determining the object of the crime at the level of a specific encroachment. It should be noted that the content of social relations is socially significant behavior, which includes all types of social behavior; and social relations are a specific form of the entire life activity of people, their very life activity5.
With regard to the corpus delicti provided for in Part 1 of Article 138 of the Criminal Code of the Russian Federation, in modern literature the well-established position continues to dominate that: the direct object is public relations, “ensuring the right of citizens to privacy of correspondence, telephone conversations and other messages”; "Providing secrecy
4 Kibalnik A., Solomonenko I. Concept and types of secrets in criminal law // Russian justice. 2001. No. 2.P. 53.
5 Mokronosov G.V. Methodical problems of the study of social relations. Sverdlovsk, 1972.S. 14-15; Nikiforov B.S. Object of a crime under Soviet criminal law. M., 1960.
correspondence, telephone conversations, telegraph and other messages ”6.
Direct object crimes provided for in part 1 of Article 138 of the Criminal Code of the Russian Federation continue to be considered certain social relations. Currently, the theory of criminal law substantiates the position that the object of criminal law protection can be not only social relations in their traditional understanding.
The theory of the object of the crime, solely as a social relation, “does not work” in a number of cases7. So, for example, in crimes against the person, the object of criminal encroachments must be considered not so much the person as a set of social relations, but the person's personality as an absolute value.
Thus, in the criminal law theory there has been a kind of turn, a return to the understanding of the object of legal protection not only as a public relation in the narrow sense of the word, but also as a "real good, interest" of criminal law protection. We believe that such an understanding of the object of the crime is more consistent with the new hierarchy of tasks of criminal law protection, the reassessment of which occurred in the 1996 Criminal Code of the Russian Federation.
The criminal law says that “the rights and freedoms of man and citizen, property, public order and public safety, environment, constitutional order Of the Russian Federation, ... peace and security of mankind ”(part 1 of article 2 of the Criminal Code of the Russian Federation) as independent values, without their obligatory implementation in public relations as such - that is, in relations of several (at least two) subjects of criminal legal relations. In addition, the definition of a crime in part 1 of Art. 14 of the Criminal Code of the Russian Federation (“a crime is recognized as a crime committed by a public dangerous act prohibited by this Code under the threat of punishment ”), also does not directly indicate the fact that only public relations in their traditional understanding should be regarded as the object of a crime - after all, a socially dangerous act can encroach on socially significant benefits and interests as such.
All these arguments about the object of criminal law protection are directly related to the question of the secrecy of correspondence, telephone conversations, postal, telegraph and other messages in criminal law. In the recent literature, it is proposed to define the data (information) that constitute this or that secret as an object of criminal law protection8. According to a number of authors, for example, the preamble of the Law of the Russian Federation "On State Secrets" (as amended) directly indicates that this Law regulates relations arising in connection with the classification of information as state secrets, their classification or declassification and protection in the interests of ensuring the security of the Russian Federation. Federation.
6 Course in criminal law. The special part. T. 3 // Ed. G. N. Borzenkova, V. S. Komissarova. M., 2002.S. 340.
7 Naumov A. V. Rossiyskoe criminal law. a common part... Lecture course. M., 2002.S. 147-149.
Kibalnik A.G., Kuzmin S.V., Solomonenko I.G. Secret in criminal law. Stavropol, 2000.S. 15-17.
Indeed, on the one hand, certain legal interests are at the heart of public relations related to the protection of the secrecy of personal information (correspondence, telephone conversations, postal, telegraph and other messages).
So, the secrecy of personal correspondence, telephone conversations, postal, telegraph and other messages of a person lies at the heart of the interest in ensuring immunity privacy, which is encroached upon not only by the crime, the composition of which is contained in parts 1 and 2 of Art. 138 of the Criminal Code of the Russian Federation, and a number of crimes against constitutional and other human and civil rights.
Literature
2. Federal Law of the Russian Federation "On Communications" as amended by No. 14-FZ dated February 9, 2007 // Russian newspaper. 2007.
3. Federal Law of the Russian Federation "On Postal Communication" with changes as amended by No. 122-FZ dated August 22, 2004 // Collection Federal Laws RF. St. Petersburg. 2007.
4. Federal Law of the Russian Federation "On information, information
onny technologies and on the protection of information "as amended by the Federal Law of the Russian Federation of July 29, 2006, entered into force on August 9, 2006 // Rossiyskaya Gazeta. 2006.
5. The Law of the Russian Federation "On State Secrets" as amended by the Federal Law of the Russian Federation of October 6, 1997, with amendments and additions of August 22, 2004, entered into force on January 1, 2005 // Collection of Federal Laws of the Russian Federation. St. Petersburg. 2007.
6. The Criminal Code of the Russian Federation, 1996, as amended in 2007.
7. Commentary on the Criminal Code of the Russian Federation / Otv. Ed. A. I. Boyko. Rostov-on-Don, 2002
8. Korzhansky NI Object and subject of criminal law protection. M., 1980.
9. Kibalnik A., Solomonenko I. Concept and types of secrets in criminal law // Russian justice. 2001. No. 2.
10. Kibalnik A.G., Kuzmin S.V., Solomonenko I.G. Secret in criminal law. Stavropol, 2000.
11. Mokronosov GV Methodical problems of the study of social relations. Sverdlovsk, 1972.
12. Course in criminal law. The special part. T. 3 // Ed. G. N. Borzenkova, V. S. Komissarova. M., 2002.
13. Nikiforov B.S. Object of a crime under Soviet criminal law. M., 1960.
14. Naumov A. V. Russian criminal law. A common part. Lecture course. M., 2002.
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