Private Life, Object of Criminal Protection in the European Context

Private Life, Object of Criminal Protection in the European Context Lecturer Mihaela ROTARU1 Abstract The present action comes as a result of some recent legislative changes, at the level of Romania, more precisely the criminalization of "revenge pornography", but not as a distinct act, according to the provisions of the Criminal Code, but as a variant of committing the crime of violation of private life. Taking into account the provisions of the European Convention on Human Rights on the right to private life, we want to analyse to what extent and how the national legislator of other Member States of the European Union understood to criminalize the behaviour mentioned above. Moreover, considering the criminalization of child pornography, from the European Council Convention on Computer Crime, as well as from the Directive 2011/92/EU of the European Parliament and of the Council of December 13, 2011, we want to analyse the opportunity of the existence in Romanian legislation of a distinct criminalization, with the name of "revenge pornography", in the same title of the special part of the Criminal Code as the crime of child pornography, taking into account the protected social value, while observing whether such an orientation is found in the criminal legislation of other Member States. Another aspect that will be considered from the perspective of applying the law to different cases brought to justice is that related to international judicial cooperation when the object of criminal protection is private life. Keywords: revenge pornography, private life, crime, legal provision. JEL Classification: K14 DOI: 10.62768/PLPA/2024/13/1/08 Please cite this article as: Rotaru, Mihaela, „Private Life, Object of Criminal Protection in the European Context”, Perspectives of Law and Public Administration 13, no. 1 (March 2024): 8190 Article History Received: 23 October 2023 Revised: 19 December 2023 Accepted: 10 February 2024 1. Introduction. The concept of "private life" and its legal protection The private life of any person benefits from legal protection both from the perspective of international and national law. We consider, on the one hand, art. 8 of the European Convention on Human Rights 2 and art. 7 of the Charter of Fundamental Rights of the European Union 3, and, on the other hand, art. 26 of the Romanian Constitution 4. Legal protection presupposes, first of all, the provision of a right in a normative act, so that this right is respected by others, and, secondly, the existence of rules by which non-respect of the right entails the responsibility of the one who is guilty 1 Mihaela Rotaru – Faculty of Police, „Alexandru Ioan Cuza” Police Academy, Romania, . 2 Art. 8 of the European Convention on Human Rights, signed in Rome in 1950 and entered into force in 1953, provides the right to respect for private and family life, as follows: „1. Every person has the right to respect for his private and family life, his domicile and his correspondence. 2. The interference of a public authority in the exercise of this right is not allowed except to the extent that it is provided by law and constitutes, in a democratic society, a necessary measure for national security, public safety, the economic wellbeing of the country, the defense of order and prevention of criminal acts, protection of health, morals, rights and freedoms of others”. Available at: https://www.echr.coe.int/documents/d/echr/convention_ron (last accessed: August 31, 2023). See some aspects in Arta Selmani-Bakiu, Adnan Jashari, Establishing A Family by the New Technologies for Artificial Reproduction According to the Positive Legislation of North Macedonia in the Light of Comparative Family Law, „Perspectives of Law and Public Administration”, Volume 10, Special Issue, October 2021, pp. 57-70. 3 Art. 7 of the Charter of Fundamental Rights of the European Union, ratified on December 7, 2000, provides the respect for private and family life, as follows: "Every person has the right to respect for private and family life, residence and the secrecy of communications". Available at: https://eur-lex.europa.eu/legal-content/RO/TXT/PDF/?uri=CELEX:12012P/TXT (last accessed: August 31, 2023). 4 In art. 26 of the Romanian Constitution, as amended and supplemented by the Law on the revision of the Constitution no. 429/2003, published in the Official Gazette of Romania no. 758 of October 29, 2003, the legislator talks about intimate, family and private life, as follows: „(1) Public authorities respect and protect intimate, family and private life. (2) The natural person has the right to dispose of himself, if he does not violate the rights and freedoms of others, public order or good morals”. Available at: https://www.cdep.ro/ pls/dic/site2015.page?den=act2_1&par1=2#t2c2s0sba26 (last accessed: August 31, 2023). Perspectives of Law and Public Administration Volume 13, Issue 1, March 2024 82 of this, from a disciplinary, civil and, ultimately, criminal perspective. Although provided in several normative acts, as we have shown above, we do not find a definition of this notion in any of these documents. The concept of "private life" was explained by the European Court of Human Rights, in the cases it judged, cases related to the violation of art. 8 of the European Convention on Human Rights. All this information was gathered by the same court in the Guide5 to Article 8 of the Convention, and the essence of the content of the document, relative to the concept of "private life", is that it cannot be given an "exhaustive definition" 6. Thus, as the Court had to rule on the violation or not of the provisions of Article 8 of the Convention in the various cases submitted to the judgment, the scope of this notion became more and more comprehensive. For example, it has been taken into account aspects related to "well-being and dignity (...), health issues/medical treatment (...), personality development (...), physical and psychological integrity (...), personal identity (...), relations with other human beings (..) aspects of social identity (...), the protection of personal data (...), a person's image (...)" 7, a fact that led to their division into three categories, namely: "a person's physical, psychological or moral integrity, his privacy and his identity and autonomy" 8. The intervention of criminal law in protecting a person's private life intervenes ultima ratio, and requires the observance of two general principles of criminal law, namely the legality of criminalization and the legality of criminal law sanctions. Therefore, a person cannot be held criminally liable for an act that, at the time of its commission, was not considered a crime, and the person cannot be sanctioned outside the legal framework established for the crime committed 9. Thus, we find that it is necessary, first of all, for the act of violation of private life to be described in a criminal norm or, in other words, to be defined in the criminal law, in t (...truncated)