The dissertation is a comprehensive study of the protection of the constitutional right to privacy, in which the theoretical and practical aspects of this issue are revealed at a new scientific level from the standpoint of natural law, the general principles of modern constitutionalism, taking into account the practice of the European Court of Human Rights, the Constitutional Court of Ukraine, national courts.
Chapter 1”General theoretical aspects of protecting the constitutional right to privacy” defines the content of the constitutional right to privacy and characterizes its constituent elements and the degree of their mutual influence and interconnection; the place of the right to privacy in the system of constitutional personal human rights, its delimitation from related constitutional rights has been established; analyzed the constitutional principles of protection of the right to privacy.
For the first time, the expediency of singling out a separate natural human right to privacy as its guaranteed autonomy from the state, society, and other people and fixing it in Article 32 of the Constitution of Ukraine is proposed.
The content of the constitutional right to privacy has been improved, firstly, with the justification for the expediency of highlighting three constituent elements (opportunities) in the content: a) a person's right to his own behavior in his personal life; b) the right to demand from other subjects, including the state, non-interference in personal life, that is, compliance with “negative obligations”; c) the right to demand from the state actions to ensure the unimpeded implementation of these opportunities, create conditions for their implementation, protection, as well as protection in case of obstacles to implementation by subjects of private or public law.
Chapter 2 “Characteristics of the protection of the constitutional right to privacy (based on the practice of the European Court of Human Rights, the Constitutional Court of Ukraine, national courts)” analyzes and systematizes international standards for the protection of the right to privacy and their implementation in the legislation of Ukraine, determines the content and scope of positive State obligations to protect the constitutional right to privacy; based on the analysis of the practice of the ECHR, the Constitutional Court, national courts, the criteria for the legality / illegality of restrictions and interference with the right to privacy are formulated.
For the first time, it has been proven that such an independent method of protection as the termination of an action that violates the right is not sufficient in protecting the constitutional right to privacy. The principle of respect for privacy must necessarily include the need for adequate compensation if such a violation (interference) occurs contrary to the law or is arbitrary.
Firstly when collecting, storing, processing, and publishing personal data of especially “sensitive” personal data, it is necessary to proceed from the principle of proportionality (compliance, adequacy and non-excessiveness), in secondly, the storage of personally identifiable data should not be longer than is necessary to achieve the legitimate purposes for which they were collected and processed.
In order to expand the guarantees of human rights, ensure their effectiveness and practicality, and the possibility of their real implementation, bringing the legislation of Ukraine in line with international standards, it is proposed to provide for a separate right to privacy and the right to non-interference in private life. Accordingly, Part 1 of Article 32 of the Constitution of Ukraine shall be amended as follows: “Everyone has the right to privacy and respect for him. No one may be subjected to interference in his private and family life, except in cases provided for by the Constitution of Ukraine”
