Criminal protection of private life

Author:Radu Slavoiu
Position:Ph.D. Candidate, Faculty of Law, 'Nicolae Titulescu' University, Bucharest
Pages:20-44
20 Lex ET Scientia. Juridical Series
LESIJ NO. XIX, VOL. 2/2012
CRIMINAL PROTECTION OF PRIVATE LIFE
Radu SL;VOIU
Abstract
This study is meant, first of all, to analyze the incriminations that the new Romanian Criminal
Code sets for the protection of a person’s private life as a social value of maximum significance both
for the human being and for any democratic society as a whole.There are two criminal offences
treated in this study that are not to be found in the current criminal legislation: violation of private
life and criminal trespassing of a legal person’s property. Likewise, the study will bring forth the
novelties and the differences regarding the offences of criminal trespassing of a natural person’s
property, disclosure of professional secret, violation of secret correspondence, illegal access to
computerized system and illegal interception of electronic data transfer – acts that when, directly or
indirectly, committed can cause harm to the intimacy of a person’s life.As an expression of the
interdisciplinary nature of this subject, the study also sets out, as a subsidiary aspect, an evaluation
of the circumstances under which the new criminal proceeding legislation allows public authorities
to interfere with an individual’s private life. Thus, the emphasis is on the analysis of the
circumstances under which special surveillance and investigation techniques can be used as
evidence proceedings regulated by the new Romanian Criminal Procedure Code.
Keywords: New Criminal Code, the protection/violation of private life, harassment,
professional office, means of interception of communications
Introduction
I. General aspects. Modern society includes, among the individual’s most important values,
his private life, whilst both international and national legislation being more and more preoccupied
with the protection of this fundamental right of human being.
The Universal Declaration of Human Rights stipulates under Article 12, that „No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence, or to the attacks
upon his honour and reputation. Everyone has the right to the protection of the law against such
interference or attacks.” Likewise, the International Covenant on Civil and Political Rights provides,
in Article 17, „1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, neither to unlawful attacks on his honour and reputation. 2.
Everyone has the right to the protection of the law against such interference or attacks.” Article 8 of
the European Convention of Human Rights shows that “1. Everyone has the right to respect for his
private and family life, his home and his correspondence. 2. There shall be no interference by a
public authority with the exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or offence, for the protection of health or
morals, or for the protection of the rights and freedoms of others.” The American Convention of
Human Rights expresses in a similar manner under Article 11, 2-3: “2. No one may be the object of
arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or
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Ph.D. Candidate, Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail: raduslavoiu@yahoo.ro)
Radu Sl?voiu
21
LESIJ NO. XIX, VOL. 2/2012
of unlawful attacks on his honor or reputation. 3. Everyone has the right to the protection of the law
against such interference or attacks.”
Transposing the international regulations onto national level, Article s 26-28 from the
Constitution of Romania establish, as fundamental rights, intimate life, family and private life, home
inviolability and the secret of correspondence.
As none of these terms enjoy a legal definition, it was the duty of doctrine and jurisprudence
to establish their meaning and content.
In Western juridical literature, private life was, practically, understood as a secret sphere of
the individual’s life, where the access of third parties1 is not allowed. Respect for private life implies
the guarantee of a person’s physical and moral integrity, the protection of his personal or social
identity, of his sexuality, of private places2, as well as the protection of reputation and the prevention
of disclosure of confidential information3. A person can consider as being part of his private life any
aspect that may be associated with his health, moral, religious or philosophical believes, his
sentimental and family life, his friendships4. It was also noted that private life includes the
individual’s right to intimate, personal life, his right to social private life and the right to a healthy
environment5.
Striving to find meanings as precise as possible for the concept of “private life”, it was
noticed that, Romanian doctrine6 makes a distinction between the texts of the European Convention
and those of the Romanian Constitution, the la tter using a concept that the first is avoiding, na mely
intimate life. It has been noted that intimate life is only a part of private life, which, first of all,
contains the right to solitude, that is the individual’s right to be with himself, to seclude from the
others, to keep the secret of his own thoughts, plans and desires, to be left alone with his ideas and
aspirations, but also with his behavior through which he intends to express his personality,
unhindered by any outside interference. Secondly, intimate life also implies contacts with other
persons “in the presence of whom the subject feels like being only with himself”, to whom he can
express his deepest thoughts; the contacts with these persons can be oral, when the interlocutors are
present, but also through letters, telegrams, telephone conversations when absent.
On its turn, private life is considered to be made of the right to intimate life, with all the above
mentioned elements included to which we also add a sphere of the subject’s business and
professional contacts are also added. Thus, we consider that private life represents a particular area of
personal thoughts and acts, of communications and conversations that are not suppressed, a personal
inviolable space where the individual can express his inner personality; but it also includes intimate
or professional contacts with the others.
When approaching the issue of the protection of private life from its values’ point of view,
another author7 notices that the risks associated to this fundamental right regard the violation of the
person’s solitude, interference into his personal matters, disclosure of personal in formation – which
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1 See J. Carbonnier, Droit civil, tome I, Les personnes. Personnalité, incapacités, personnes morales, Presses
Universitaires de France, Paris, 2000, pg.156.
2 See R. Clayton, H. Tomlinson, The Law of Human Rights, Oxford University Press, 2001, par.12.85-12.94.
3 See P. van Dijk, F. van Hoof, A. van Rijn, L. Zwack, Theory and practice of the European Convention on
Human Rights, 4th edition, Intersentia, Antwerpen-Oxford, 2006, pg.665.
4 See G. Cohen-Jonathan, Respect for private and family life, in R.St.J. Macdonald, F. Matscher, H. Petzold,
The European System for the Protection of Human Rights, Dordrecht: Nijhoff, 1993, pg.405 and the followings.
5 See Fr. Sudre, Dreptul european şi internaional al drepturilor omului, Polirom PH, 2006, pg.315; C. Bîrsan,
Convenia european a drepturilor omului. Comentariu pe articole, vol. I, Drepturi şi liberti, All Beck PH,
Bucureşti, 2005, pg. 600.
6 See E. Tanislav, Ocrotirea penal a dreptului la intimitate, Revista de Drept penal nr.3/1998, pg.42-53.
7 See V. Stati, Ocrotirea penal a dreptului la via privat în Republica Moldova, Re vista de Drept penal
nr.3/2006, pg.146-157.

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