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§ 2. Personal data as a subject of protection of constitutional laws in Russia

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Interpretation of the Constitution of the Russian Federation taking into account modern realities allows to reveal the constitutional bases of protection of personal data in following constitutional positions:

- Parts of 1 article 23 in aggregate with a part of 1 article 24 fixing the right to inviolability of a private life;

- The part of 2 articles 23 proclaiming the right to the privacy of correspondence, telephone conversations, post, cable and other messages (further - the right to secret of telecommunications);

- To article 25 fixing the right to the inviolability of home.

Three named constitutional laws taking into account interrelations

Between them it is offered to consider as forming the Russian model of a konstitutsionno-legal protection of personal data. This conclusion does not mean negation of that fact, that in the maintenance of other Russian Federations guaranteed by the Constitution is right too can separate guarantees of protection of personal data are revealed. Among such rights it is possible to name a freedom of worship and creeds (article 27 of the Constitution of the Russian Federation), a freedom of assembly (article 31 of the Constitution of the Russian Federation), the right to free use of the abilities and property for enterprise and other economic activities not forbidden by the law (a part of 1 article 34 of the Constitution of the Russian Federation). So, for example, with a freedom of worship as it is represented, the rule providing conducting of the uniform state register, containing data on membership of citizens in the religious organisations would be incompatible. The freedom of assembly assumes such mechanism of realisation at which the subject of law should not be afraid of that its any participation in public actions is fixed by the state. The resulted examples show, that in the maintenance of these rights only "dot" guarantees of protection of personal data can be found out, and data can act additional, instead of the basic subject of protection. At first sight can seem, that the honour and reputation right of defence, fixed as the independent right regarding 1 article 23 of the Constitution of the Russian Federation [352 [353] is unfairly excluded from number of elements of model. On closer examination, however, the following is found out. With reference to protection personal granted this right is not beyond the "dot" guarantees expressed in an interdiction of distribution of personal data, degrading honour of the person. To consider personal data as the basic subject of protection it is not obviously possible, as honour of the person comes under

To protection without dependence from, whether took a place distribution of personal data or other information which are not those.

Taking into account stated the right to inviolability of a private life, the right to secret of telecommunications and the right to inviolability of a private life is offered to carry to elements of the Russian model konstitutsionnopravovoj protection of personal data. Understanding as model the symbolical scheme which supposes simplifications at reproduction of investigated object, we have considered possible to refuse reckoning to number of its elements of other rights. Constitutional guarantees of protection of personal data containing in them can be left behind model frameworks, as for disclosing of the Russian Federations of requirements put in pawn by the Constitution regarding protection of personal data the key

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Three rights listed above have value.

2.1. Personal data as a subject of protection of the right to inviolability

Private life

In the domestic literature the right to inviolability of a private life is frequently considered as a complex constitutional law to which number of elements carry including the right to secret of communication and to the inviolability of home [354 [355]. Such approach is quite explainable, considering, as the right to secret of communications (a part of 2 articles 23 of the Constitution of the Russian Federation), and the right to the inviolability of home (article 25 of the Constitution of the Russian Federation) were historically formed as the rights directed on protection of sphere of a private life. Not denying immanent interrelation of the right to inviolability of a private life and the rights fixed regarding 2 articles 23 and article 25 of the Constitution of the Russian Federation, we believe possible to consider the right to secret of communications and the right to the inviolability of home as independent constitutional laws, [356] filled with own maintenance [357 [358] and being special in relation to a general law on inviolability of a private life. Such approach to understanding of a parity of three named constitutional laws is taken as a principle revealings and disclosings of the constitutional bases of protection of personal data according to the Constitution of the Russian Federation.

The part of 1 article 23 of the Constitution of the Russian Federation fixes the common right on inviolability of a private life, personal and family secret. The part of 1 article 24 of the Constitution of the Russian Federation establishes the express prohibition on gathering, storage, use and distribution of the information on a private life of the person without its consent. In aggregate these norms should be considered as a standard basis of a constitutional law on inviolability of a private life. Such understanding of a standard basis of an analyzed constitutional law finds, how is thought, acknowledgement in practice KS the Russian Federation [359 [360]. Thereupon it is not obviously possible to agree with opinion that fixed regarding 1 article 24 of the Constitution of the Russian Federation the competence differs from the right to inviolability of a private life, «provided by article 23 of the Constitution of the Russian Federation», and though «many... Not

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See differences... It is ».

The constitutional norms fixed regarding 1 article 24 and a part of 1 article 23, it is necessary to open in system unity, instead of in a separation from each other.

Express indication of a part of 1 article 24 of the Constitution of the Russian Federation on the information on a private life allows to draw a conclusion that this category of the information acts as a subject of the constitutional protection.

There is, however, a question that it is necessary to understand as the information on a private life and as this category of the information corresponds with personal data. The answer to the brought attention to the question is impossible without preliminary disclosing of a category «a private life», being one of basic for a konstitutsionno-legal status of the person.

It is necessary to notice, that in the domestic legal literature of a category of a private life and to the right to its inviolability it was given and the big attention that proves to be true a significant amount of the dissertational researches protected on various scientific specialities, and also publication of researches in the form of monographies and in periodicals is paid. Evolution doktrinalnyh representations about a private life has not only theoretical value, but also practical, influencing on right development in reality.

Detailed reproduction and consideration in the text of work of all those definitions of a private life which were at various times offered by researchers, is not obviously necessary, as not all author's definitions differ scientific novelty. For the present research which is devoted questions of protection of personal data, it is important to establish, [361 [362] what to understanding of a private life it is possible to consider the approach prevailing; whether there are alternative approaches and in what they consist.

For the domestic konstitutsionno-legal doctrine such understanding of a private life according to which the wide spectrum of relations concerns it «not, and narrow sphere of the intimate, household and family relations which directly have been not connected with the jural sphere» [363] is traditional.

Indicative in this sense the following definitions of a private life formulated in the literature are represented. V.F.Tsepelev specifies, that the information on a private life «reflects lichnostno the allocated activity connected with informal, informal interpersonal dialogue... And also significant actions for the person and the decision, including leaning against its legal status, but indifferent from the point of view of interests of a society and the state» [364]. N.S.Kolesov defines a private life as «physical and spiritual sphere which is supervised by the individual, i.e. It is free from external influence. The legislation cannot interfere in this sphere; it urged to protect it from any illegal intervention» [365]. I.A. Umnov the right to inviolability of a private life as consisting of variety of competences, «providing to the citizen considers possibility to be out of service, out of industrial conditions in a condition of known independence of the state and a society» [366]. M.N.Maleina excludes from the list of data which constitute secret of a private life, the data connected with «professional or public work» [367].

Other approach to understanding of a private life which «does not mean an exact designation of [its] borders» [368] and, possibly, supposes wider interpretation of a considered category, has found reflexion in the definition formulated by M.V.Baglaem. The scientist specifies, that «[ch] astnuju the life is constituted by those parties of private life of the person by which he owing to freedom does not wish to do by property of others»; thus «antisocial or illegal activity» is excluded from sphere of a private life [369 [370] [371]. With the such

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The approach it is possible to agree or disagree.

Invariable there is a following circumstance: the big role in substantial filling of such highly abstract legal category which the private life is, practice urged to play pravoprimenitelnaja. Considering, that is a question of a category fixed in the Constitution of the Russian Federation, the unique body, authorised to give to it official interpretation, is KS the Russian Federation [372].

KS the Russian Federation as shows the analysis of its practice, also adheres to the narrow approach to definition of a private life, spending strict enough distinction between sphere of a private life and other spheres of ability to live of the person. So, it specifies, that the private life «joins that area of ability to live of the person which concerns separate persons, concerns only it and does not come under to the control from a society and the state if it carries not illegal

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Character ». Certainly, it would be possible to assume, that time is used a verb

"Joins", that is and other areas of ability to live of the person which are covered by concept «a private life». But in decisions KS the Russian Federation acknowledgement of such assumption to find out it was not possible. Moreover, the information on a private life do not concern, according to KS the Russian Federation, «personal data (a name, the residence address, the post address, contact phone) the person declaring an offence..., personal data of the witness which are fixed in remedial documents.». Does not include in sphere of private life KS the Russian Federation and

The labour relations developing between the worker and the employer within the limits of the employment contract, believing, that they «have public character» [373 [374] [375] [376] [377] [378].

The right to inviolability of a private life is understood KS the Russian Federation as «given to the person and the possibility guaranteed by the state to supervise the information on, to interfere with disclosure of data of personal, intimate character». It is remarkable, that the specified formulation not

The Russian Federation is, possibly, "invention" KS, it was used in 1989

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I.L.Petruhinym at the characteristic of the right to private life, and in the subsequent

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Has affirmed as the literature.

It is necessary to notice, however, that the given formulation conceals in itself uncertainty. Categories «the information on», «data of personal, intimate character» are not identical on volume: the first is wider and contains in quality of one of elements «the information of personal, intimate character». Accordingly there is a question, whether all information on the person enters into sphere of action of the right to inviolability of a private life or only «the information of personal, intimate character».

On the basis of developed in practice KS the Russian Federation of the approach to understanding of a private life could be assumed, what exactly the narrow category of the information of personal character joins it in the maintenance of the right to inviolability of a private life.

At the same time doubts in correctness of the given assumption arise at the reference to those decisions in which statements KS the Russian Federation about constitutionality of reference of personal data to a category of the information of the limited access contain. In Definitions №2 3-O-O 2009 and №2 1063-O-O 2011 KS the Russian Federation, being guided by the legal position formulated in 2000 according to which the Constitution of the Russian Federation supposes possibility of an establishment concerning this or that information of a special legal regime, including mode of restriction of an easy approach to it from citizens, does the following conclusion: « The exception of the information concerning personal data, of an easy approach mode completely corresponds to instructions ch. 2 items 24 of the Constitution. Otherwise under the threat it would appear guaranteed ch. 1 items 23 and ch. 1 items 24 of the Constitution the right to inviolability of a private life »[379]. The resulted citation gives the bases to approve, that to the information which protection is provided within the limits of a constitutional law on inviolability of a private life, all personal data, without dependence from that concern, they contain data on a private life or not.

Considering, that decision KS the Russian Federations do not allow to give the unequivocal answer to a question on how concepts «the information on the private correspond among themselves

Lives "and" personal data », we will address to existing doktrinalnym

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To approaches to its permission.

In one group it is obviously possible to consolidate two approaches which representatives recognise that not all personal data are the information on private human life.

The first approach is based that personal data - wider category of the information, act as one of which components of data on a private life. So, according to A.S.Fedosina, «all information on a private life... Is a segment of a category of personal data. However there is great volume of personal data which though identifies the person, but does not constitute data on a private life».

Representatives of the second approach, abstaining from that establishment what of two categories of the information is the general and what - private, considers the information on a private life and personal data as not identical on volume, but having substantial coincidence of a category. So, A.L.Kononov believes, that «a category personal data though the information on a private life» is crossed with the formula «, but is not quite identical to it» [380 [381] [382]. A.Lushnikov, obviously, similarly considers a parity of two specified categories of the information, noticing, that «personal data» can constitute elements of a private life. Thus as an example of the information representing personal data, but «not mentioning a private life», it results biographical particulars (among them the name and a residence of the person, data on a birth date and birth place, the passport, on formation, vocational training are called) [383].

However it is difficult to find a substantiation to that circumstance, that in all cases of data on formation, about a work place are considered as not concerning a private life. Also as well as it is not obviously possible to agree that the status of the information on a private life such personal data as a name, the residence address, the post address, contact phone (especially in aggregate) on the ground that they are fixed in remedial documents [384] a priori lose. That fact, that the person participates in public relations, acting as it took place in

Considered KS the Russian Federation a case, in a role of the person declaring administrative violation, in itself as it is represented, does not lead to that the specified data cannot concern the information on a private life.

Feature of personal data as independent category of the information requiring protection, is that at times in aggregate personal data which separately can seem unimportant and not concerning a private life of the person, are capable «to develop in the generalising picture characterising it the person» [385].

Whether probably in such conditions to spend strict border between personal data which are the information on a private life of the person and which protection is guaranteed by the Constitution of the Russian Federation, and other personal data which protection is given exclusively to the discretion of the legislator? Most likely, no.

For this reason more proved the position, according to which «the information on a private life - concept wider, than personal data» [386 [387] [388] is represented. Only such approach to a parity of these concepts of a constitutional law allows to prove the thesis about consideration of all personal data as a konstitutsionno-legal protection subject. That fact, that «personal data as special object of protection in the Constitution of the Russian Federation are not mentioned», to it, in our opinion, does not interfere.

Both the first, and the second the approaches stated above, is included in the maintenance of the right to inviolability of a private life only by such personal data or their sets which already contain data on a private life. Accordingly deprived of the constitutional guarantees there are personal data which at the moment time cannot be considered as the information on a private life, but can in the future, in case of connection with additional data.

Separately it is necessary to mention, that in the literature it is possible to meet the remark on convention of concept «protection of personal data» as «personal data as those are protected more likely not, and their carrier, the person, from

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Use of such data illegal or undesirable to it ».

The specified remark is fair in the respect that the unique subject,

In whose interests protection of personal data is carried out, the person is. As mark V.V. Djatlenko and E.K.Volchinsky, «finally, protection of personal data is not information protection, and protection of a personnel» [389 [390] [391]. Taking into consideration, however, that personal data represent the information directly connected with the person, and that as a protection subject personal data, the term «protection of personal data» act it is represented quite justified.

The thesis about necessity of a konstitutsionno-legal protection of personal data as independent category of the information receives gradual acknowledgement in the domestic literature though, unfortunately, it is not always accompanied by a substantiation. So, for example, N.Varlamov without any explanatories specifies in article 24 of the Constitution of the Russian Federation as on fixing the right of defence of personal data. Other way of "disclosing" of the constitutional guarantees of protection of personal data is an analysis of the maintenance of a constitutional law on inviolability of a private life through a prism of the legislation on personal data. Such way, however, is not represented convincing as only one consideration of legislative guidelines cannot be recognised by sufficient for revealing of sense constitutional

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Norms.

The analysis of the points of view existing in the domestic literature concerning the constitutional nature of claim on protection of personal data allows to divide them into three groups, how the question on its parity is solved with a constitutional law on inviolability of a private life and what name it receives.

One researchers start with independent character of claim on protection of personal data.

L.K.Tereshchenko specifies in a part of 1 article 23 and a part of 1 article 24 of the Constitution of the Russian Federation as on norms, «directly mentioning protection of personal data» and notices, that «... The tendency to consider protection of personal data as the independent right of the citizen, i.e. separately from wider right to respect private and home life» [392] is observed.

Independence of the right of defence of personal data and necessity of its reference to fundamental rights and freedom of the person defends I.A.Velder. The author comes to conclusion, that the specified right «is distinct from the right to inviolability of a private life though has certain similarity to it. Difference consists that the right to inviolability of a private life assumes protection, along with other, the information concerning by a private life, and the right of defence of personal data - fair and lawful processing of these data without dependence from their character and use sphere» [393]. It is necessary to notice, however, that I.A.Veldera's dissertational research is executed on a speciality «International law. The European right» also is devoted system of a legal protection of personal data in EU. Accordingly in the centre of attention of the author there is EU right though and in the Russian right he finds out the constitutional bases of protection of personal data. As those as it are called the part of 1 article 23 and a part of 1 article 24 of the Constitution of the Russian Federation.

Other researchers see the right to information self-determination in positions of the Constitution of the Russian Federation.

G.A.Gadzhiev referring to K.Ekshtajna interprets norms of article 24 in aggregate with a part of 1 article 23 of the Constitution of the Russian Federation as the norms containing the right to information self-determination which is considered as an element of the right to inviolability of a private life [394 [395]. Thus G.A.Gadzhiev uses concept «the right to information self-determination» as a synonym to concept «the right of defence of the information on a private life».

According to E.A.Tsadykovoj, regarding 1 article 23 and article 24 of the Constitution of the Russian Federation the right to the information self-determination giving to the person possibility «contains to supervise the information on».

A.Berger sees in a part of 1 article 24 of the Russian Constitution independent «the right to information self-determination» and opens it from the point of view of fundamental laws of categories traditional for German dogmatic persons - spheres of protection, intervention, the justification of intervention [396].

In the basis of such interpretation seeing in the constitutional norms the right to information self-determination, the recognition of process of evolution of a constitutional law on inviolability of a private life which is accompanied by occurrence of new aspects of the private life lays, obviously, thus prevailing there is an information aspect [397].

On the changes occurring to the right to inviolability of a private life, specifies also A.V.Kucherenko, marking in quality «to one of development tendencies pravoponimanija in this respect... Transition from protection of the right to a private life to protection of the right to information self-determination (an information autonomy)» [398].

Change of approaches to understanding of the right to inviolability of the private life, caused by prompt development of information-communication technologies is represented, however, that, is expressed not in "transition" from one right to another, and in increase in the importance of information aspect of the right at inviolability of a private life. Thereupon it is necessary to agree with

I.V.Balashkinoj in which opinion the development present stage differs that the information component supplements two other, traditional components - physical and territorial [399].

Interpretation of positions of the Constitution of the Russian Federation as containing the right to information self-determination is represented not indisputable. The right to information self-determination is «exclusively German

kontseptom »which has not been apprehended by other laws and orders including related German the law and order of Austria [400]. Most likely, the domestic researchers using the given term, addressed to German experience of a konstitutsionno-legal protection of personal data. At the same time an independent deep substantiation requires not only a carrying over admissibility on the Russian soil of a design of the right to information self-determination, but also possibility of use of the term with reference to the characteristic of the right guaranteed by the Constitution of the Russian Federation.

The situation is that, that «the right to information self-determination» is inherent in the term certain substantial filling which it has received in German legal system, and the general law on a personal freedom, unknown to the Russian legal system became a source of this right. Certainly, the right to information self-determination has proved the efficiency in maintenance of protection of personal data and keeps the value, continuing to develop not to become anachronistical in relation to a level of development of information-communication technologies. At the same time, the design of information self-determination which is highly abstract, cannot be considered unique, capable to provide protection of personal data at the highest level - level of human rights (it is enough to pay attention to practice ESPCH). Besides, the fact of a recognition of the right to information self-determination as guaranteed by the Constitution of the Russian Federation does not do the granted right really operating, for this purpose it should receive concrete substantial filling and application in practice KS the Russian Federation at the permission of affairs.

Representatives of the third group of researchers consider claim on protection personal granted as an element of the right to inviolability of a private life.

According to A.S.Fedosina, the right of defence of personal data which is an element of structure of a complex constitutional law on inviolability of a private life, assumes «an exception of possibility of any actions with personal data without consent of the subject of personal data, and also possibility of subjects personal given to supervise action of operators of processing with their personal data» [401 [402] [403]. The right to confidentiality of personal data

A.S.Fedosinym as constitutional law competence is considered

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On protection of personal data.

A.V.Presnyakov, notices, that «the right of defence of personal data and the personal information» follows from the right to inviolability of a private life and

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Is additional in relation to it.

E.A.Mindrova includes competence of the person in the maintenance of the right to inviolability of a private life «to limit access of other persons... To data on» [404 [405] [406] also specifies, that though «the Constitution of the Russian Federation does not allocate concept« personal data », but guarantees their protection in an information mode about

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Private life of the person ».

I.M.Huzhokova considers the right of defence of personal data as

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Component of the right to inviolability of a private life.

More proved the third approach as he, unlike the first, does not assume necessity of a formulation the Constitutional Court of the Russian Federation of the new not named right (such step taking into account available practice of body of the constitutional control is represented it is represented improbable), and allows at the expense of extensive interpretation of the right to inviolability of a private life to include in its maintenance as an element the right of defence of personal data.

Such sight at the right at inviolability of a private life is interfaced to a withdrawal from narrow interpretation of a private life prevailing in Russia. As it is represented, in the Constitution of the Russian Federation there are no obstacles for expansion of the maintenance of concept «a private life» for the inclusion account in it of various aspects of the ability to live connected with personal development of the person in a society that allows not to be limited only to what occur in informal sphere.

Moreover, the withdrawal from narrow understanding of a private life can be observed in the domestic literature. So, S.A.Avakjan suggests to carry to it «actually private life of the person; his life in a family; labour (in the broad sense of the word) activity; a state of health; dialogue of the person with other people» [407]. A.L.Kononov fairly specifies that «the person has the right to define, which data concern its private life» and names among the information on a private life which "anyway" is confidential, data on an accessory to public associations, health, property, incomes, professional work [408].

The narrow approach to interpretation of a private life by the lack has restriction of the maintenance of a constitutional law on inviolability of a private life and as consequence decrease in volume of the constitutional guarantees, called to provide free development of the person [409].

Besides, adherence to narrow interpretation of concept «the private life» does impossible allocation as an element of the right to inviolability of a private life of claim on protection of personal data as creates inadmissible with doktrinalnoj the points of view a situation at which the right element under the maintenance appears more widely the right. As is known, personal data represent the information arising not only in intimate and household spheres, but also in any spheres of ability to live of the person.

Perspective taking into account stated rapprochement generated in KS the Russian Federation of the approach to understanding of a private life and the right to inviolability of a private life with the approach which has received development in practice ESPCH to interpretation of article 8 of the Convention on protection of human rights is represented. Last as follows from its practice analysed above, starts with concept extensive interpretation a private life and includes in its maintenance, including, the right to adjust and develop the relation with other people and an external world, and under certain conditions - and activity of professional and commercial character.

The approaches of domestic researchers considered above to questions of protection of personal data in the light of interpretation of the Constitution of the Russian Federation testify that in the Russian scientific environment receives development process of a recognition of the constitutional nature of claim on protection of personal data.

The first step in a direction of a recognition of the constitutional nature of the specified claim is made and KS the Russian Federation: having specified, that the exception of the information concerning personal data, of an easy approach mode is directed on protection of the right to inviolability of a private life, KS the Russian Federation as it is represented, has confirmed presence of immanent interrelation of personal data with sphere of a private life and has opened possibilities for interpretation of norms of a part of 1 article 23 in interrelation with a part of 1 article 24 of the Constitution of the Russian Federation as personal data providing protection.

It is necessary to recognise, however, that level of a readiness of questions of a konstitutsionno-legal protection of personal data in the doctrine, and also in practice KS the Russian Federation does not answer modern realities. So, it is not obviously possible to agree with O.S.Sokolovoj that the Constitutional Court of Russia «turns out extensive practice concerning protection of personal data». In a substantiation of the position the researcher specifies on 136

The definitions accepted KS the Russian Federation and devoted to questions of processing of personal data. However, as O.S.Sokolova marks, 102 definitions have been taken out under complaints of the citizens, concerning legislative the norms regulating release of a universal electronic card [410 [411]. That is the overwhelming majority from the named 136 decisions is devoted one legal problem. Moreover, it is a question of decisions KS the Russian Federations which are taken out in the form of definitions and not containing the decision of questions, put in references, in essence.

Development of the konstitutsionno-legal doctrine and practice in sphere of protection of personal data assumes not only a recognition of the constitutional nature of claim on protection of personal data, but also definition of the maintenance of the named claim accompanying such recognition, conditions at which it can be limited, its parities with the adjacent rights (the right to secret of communications and the right to the inviolability of home), and also with the rights in which basis opposite interest - interest in information disclosing (first of all, the Constitution of the Russian Federation fixed in article 29 information freedom) lays.

The decision of the listed questions as the constitutional legal proceedings including because decisions KS the Russian Federations carry a binding character [412 [413] [414] [415] is represented to the optimal and the legal positions formulated in them are obligatory for the legislator and pravoprimenitelja.

It is necessary to notice, that last years the order of the constitutional legal proceedings has undergone to serious corrective amendments. So, for example, after the changes brought in FKZ about the Constitutional Court of Russia in November 2010

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Year, citizens have lost possibility to challenge constitutionality of the law which is coming under to application. Now the complaint to infringement of constitutional laws can move only concerning the law which has already been applied in concrete business. Thus, there was «a toughening of criteria of an admissibility of the constitutional complaint» which involves restriction of possibility of citizens to address for protection of the rights in KS the Russian Federation. The judge of the Constitutional Court of Russia G.A.Gadzhiev who does not consider possible to consider it as «certainly polozhiteln [oe]» [416] specifies in «disputable character» respective alteration. Estimates the given change V.A.Krjazhkov Even more critically. As the scientist specifies, «there are bases to believe, that new regulation contradicts the literal sense ch. 4 items 125 of the Constitution of the Russian Federation which does not cause the reference of citizens in the Constitutional Court only after consideration of their concrete business in other court» [417]. According to T. Century The Sokolov, on the contrary, an event «change... Criteria of an admissibility... Complaints of the citizen it is theoretically justified, as reflects subsidiary character of the constitutional legal proceedings in system of judicial protection of the rights and freedom, intended for protection of the rights and freedom of the person and the citizen from standard (instead of actual) infringements» [418 [419].

Toughening of requirements to a complaint admissibility, possibly, among the other pursued the aim to lower a stream of complaints of citizens in KS the Russian Federation. The information placed on a site of the Constitutional Court of Russia, allows to draw a conclusion on gradual reduction of number of the references arriving in body

The constitutional control within a year. Invariable there is that from the general number of references constitute overwhelming majority

The constitutional complaints [420].

Being connected by arriving references, KS the Russian Federation cannot choose any way questions for consideration. At the same time it is necessary to notice, that as the analysis of practice KS the Russian Federation testifies, rather regularly, especially last years, complaints to the legislative guidelines regulating processing of personal data go to body of the constitutional control. Thus KS the Russian Federation abstains from check of constitutionality of legislative norms challenged by applicants though on the basis of texts of separate definitions it is possible to assume, that in complaints the problems of konstitutsionno-legal character requiring konstitutsionno-legal interpretation are designated.

Let's result following two examples:

1) business in which norms of the Federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» were challenged, allowing to establish in offices of doctors of system of audio-and

Video observations [421 [422] [423]. Interesting this business is represented including because the applicant was simultaneously and the doctor of the medical organisation in whom corresponding systems of supervision have been established, and the patient. Not putting before themselves of the purpose of the exhaustive analysis of decision KS the Russian Federation, which was accepted on the given case (Definition KS the Russian Federation from September, 24th, 2013 № 1333), we will stop on a following question.

KS refuses consideration on the substance of the positions of the legislation which are not interfering an establishment of systems of audio-and video observation on a workplace, and specifies the following: «As to an argument of the applicant about infringement of its rights as the worker of the medical organisation in connection with installation in medical offices of system of supervision in case of change of the conditions of the employment contract defined by the parties the employer is obliged to notify in advance on it the worker and also to provide protection of its personal data».

At the same time it is possible to assume, that the applicant was excited not with observance by the employer of procedure on change of conditions of the employment contract, and an admissibility of an establishment of systems, obviously, constant supervision on a workplace. The given problem as it is represented, carries konstitutsionnopravovoj character, and, hence, that fact, that the current legislation does not contain an interdiction for supervision over the worker for a workplace, yet does not mean constitutionality of such action. It is obvious, that absence of the konstitutsionno-legal frameworks defining conditions and an order at which the supervision establishment could be recognised by admissible, negatively affects workers who are not protected from any decision of the employer on an establishment of systems of supervision. In such situations hardly it is possible to name the consent of the worker to processing of personal data voluntary as, possibly, result of refusal of consent becomes

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The termination labour the relation.

2) affairs in which a contest subject were norms of the Federal act from July, 27th, 2010 № 210-FZ «About the granting organisation

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The state and municipal services », regulating release

Universal electronic card.

KS the Russian Federation has specified, that operating regulation on release of electronic cards cannot be considered as breaking constitutional laws of applicants in the aspect specified by them as «the same time for protection of the rights and interests of the persons requiring reception of state (municipal) is directed on maintenance of performance with public authorities and local governments of the duties connected with granting to citizens of the state (municipal) services, willows

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Services ».

Appealing to balance maintenance between effective execution by bodies of public authority of the functions and interests of private persons as addressees of public services, KS the Russian Federation does not stop, for example, on a question on that, the rule according to which release of a universal electronic card is carried out on the basis of the information available for public authorities on citizens (when citizens have not written the statement for delivery of a universal electronic card or [424] [425] [426] about refusal of its reception) is how much proved. It is possible to assume, that initially citizens gave the personal data not for release of a universal electronic card. As it is represented, thereupon there is more a general question on what principles of processing of personal data can be considered as guaranteed by the Constitution of the Russian Federation and what their maintenance. It is a question, in particular, of necessity of reception under the general rule of the consent to processing of personal data and processing restriction in advance definite purposes. That fact, that the citizen can prevent release of a universal electronic card, having handed in the corresponding statement, the listed questions does not remove.

In an another matter which though has come to the end with definition removal about refusal in complaint acceptance to consideration [427], KS the Russian Federation interpretation of the legislative norms defining an order of access to data, containing in references of citizens (including, as a matter of fact, has been given their personal data), submitted as the Federal act from May, 2nd, 2006 № 59-FZ «About an order of consideration of references of citizens of the Russian Federation» (further - the Law on references) [428].

The constitutional Court of Russia has specified, that, under the general rule, the persons directing the references, containing the information which can form the basis for carrying out of off-schedule checks, can count that «the data informed by them concerning by a private life of these persons, and equally their personal data not will automatically, are needlessly given persons in which relation the specified checks» are spent. At the same time the part of 2 articles 6 of the Law on references «cannot be considered as forbidding in all cases... To give corresponding data to the person, the rights and which legitimate interests they mention» [429]. Accordingly if to the person in which relation check is spent, for protection of own rights the data containing in circulation are necessary, it has the right to receive these data.

Giving such interpretation to legislative norms, KS the Russian Federation thereby provides balance of competing interests (information preservation as fiduciary and access reception to this information) and is defensible refuses absolutization of idea of protection of the rights of subjects of personal data.

Taking into account the stated it is necessary to notice, that gradual disclosing in practice KS the Russian Federation of the questions connected with processing of personal data, can become a basis for substantial filling of claim on protection of personal data as constitutional law element on inviolability of a private life.

2.2. Personal data as a subject of protection of the right to the privacy of correspondence, telephone conversations, post, cable and other messages

The right to the privacy of correspondence, telephone conversations, post, cable and other messages is fixed regarding 2 articles 23 of the Constitution of the Russian Federation. To consider the granted right from the point of view of in what volume it covers protection of personal data, it is obviously possible because personal data are found out both in the maintenance of the individual message, and in the data concerning circumstances of fulfilment of the communications.

It is thought, that the maintenance of the granted right includes communications with use of any kinds of communication (including communications in informatsionnotelekommunikatsionnoj networks "Internet"). At the same time distribution of action of the right fixed regarding 2 articles 23 of the Constitution of the Russian Federation, on «all kinds of communications between individuals» [430 [431] (it is obvious, including what occur without use of communication networks) is represented problematic. Increased requirements which are shown to an admissibility of restrictions of the right to the privacy of correspondence, telephone conversations, post, cable and other messages [432 [433] [434], are caused by that circumstance, that the person for communications realisation uses communication networks and by that to a certain extent loses the control over the communications.

For scoping of the constitutional guarantees of protection of personal data according to a part of 2 articles 23 of the Constitution of the Russian Federation the answer to a question on is key what information constitutes secret of individual messages: only the information concerning the maintenance of corresponding messages, or also the information characterising circumstances of their fulfilment.

During the Soviet period the attention that «the legal object on the privacy of correspondence is not only the correspondence maintenance, but also the fact was paid

435

Correspondences between certain persons.

The constitutional Court of the Russian Federation carries to protected by the Constitution of the Russian Federation to secret of telephone conversations «any data transferred, kept and established by means of telephone equipment, including given about entering and proceeding signals of connection of telephone sets concrete

436

Users of communication ».

At the same time in the literature the attention that the situation in which number of the subscriber and date and time of the connections made from it, are not covered by the maintenance of the right to secret of telephone conversations is possible is fairly paid. It takes place, when the specified data will be requested for the purpose of an establishment of a site of the person, proceeding from a binding to base station, and communication of the subscriber with other persons do not reveal, as the information on that,

What other subscribers were caused, is not enquired. The listed data, however, do not lose the constitutional guarantees of protection. They are covered by the constitutional law maintenance on inviolability of a private life, instead of a constitutional law on secret of telephone conversations.

To secret of the individual messages sent by means of an information-telecommunication network "Internet", proved

Reference along with the maintenance of the communications of data on circumstances of its fulfilment (in particular, data on addressees and senders, including their geographic location at the moment of communications, data on time of reception, transfer, delivery of messages) is represented.

Taking into consideration definition which is given to personal data in the Russian legal system, it is necessary to notice, that the same personal data can come under to protection simultaneously as the information on a private life and as the information constituting secret of the individual message. As consequence there is a problem of a competition of the constitutional norms which can be resolved as follows: personal data come under to protection within the limits of the right to inviolability of a private life if they do not enter into sphere of protection of the right to the privacy of correspondence, telephone conversations, post, cable and other messages. At such approach of norm of a part of 2 articles 23 of the Constitution of the Russian Federation are understood as special in relation to norms of a part of 1 article 23 in aggregate with a part of 1 article 24 of the Constitution of the Russian Federation.

The right to the privacy of correspondence, telephone conversations, post, cable and other messages can be limited according to express indication of a part of 2 articles 23 of the Constitution of the Russian Federation only on the basis of a judgement. [435 [436]

In addition to it, a special condition of an admissibility of restriction, the requirements fixed regarding 3 articles 55 of the Constitution of the Russian Federation and shown to restrictions of all constitutional laws and freedom should be observed, namely: restrictions should be established the federal act and pursue one or simultaneously a little from following purposes - protection of bases of the constitutional system, morals, health, the rights and legitimate interests of other persons, maintenance of defence of the country and safety of the state [437 [438]. Though the list of the purposes has the closed character, he «allows to enter restrictions of the constitutional... The rights and freedom in considerable limits» including because the concepts used for a designation of the purposes, «have

440

Rather wide and not always the certain maintenance ».

It is necessary to notice, that in practice of the Constitutional Court of Russia requirements to the laws entering restrictions of the rights and freedom, and to restrictions have been developed. So, the corresponding law should be formally defined, that is to contain the exact and clear legislative instructions which are not supposing ambiguous interpretation, and the measures limiting the rights and freedom, - fair, proportional konstitutsionno protected

To values and necessary [439].

Thus, on the basis of stated above it is possible to draw a conclusion that the Constitution of the Russian Federation establishes high guarantees of protection of the personal data entering into the maintenance of the right to the privacy of correspondence, telephone conversations, post, cable and other messages. Other question are how much corresponding constitutional guarantees are really operating.

For the answer to it the Internet is reversible to the legislative norms regulating the relations, developing in the course of rendering of a telecommunication service and granting of services for communications in a network.

Federal act article 64 «About communication» [440] (further - the Law on communication) as follows from its name, establishes restrictions of the rights of users by a telecommunication service at carrying out of operatively-search actions and actions for maintenance of safety of Russia. Existence of legislative restrictions of the right guaranteed by a part of 2 articles 23 of the Constitution of the Russian Federation, is admissible, however only at observance stated above requirements both to the law, and to measures which are entered by it.

Point 1.1 of article 64 of the Law on communication establishes a duty of communication statements to give the certain information to the authorised state bodies which are carrying out operatively-search activity or maintenance of safety of Russia.

First, it is a question of the information on users a telecommunication service and about the telecommunication service rendered to it. Thus the list of data which concern such information, no less than term of their storage by communication statements in the law are absent. They are found out in the subordinate legislation certificate - the Russian Federations approved by the Governmental order Rules of interaction of communication statements with the authorised state bodies which are carrying out operativnorozysknuju activity (further - Rules of interaction of communication statements with the authorised bodies) [441]. In them the list of the information which are coming under to inclusion in databases about subscribers (point 14), a three-year period of storage of the corresponding information has been defined, and also the duty of communication statements is established to give to the authorised state bodies round-the-clock remote access to databases (point 12).

Secondly, it is a question of the information specified in subparagraph 1 of point 1 of article 64 of the Law on communication. The information on all facts of reception, transfer, delivery concerns it and (or) processings by users of a telecommunication service of any messages. Before in July, 2016 the Law on communication has been added by the specified subparagraph, at legislative level there was no list of the data which are coming under to storage by a communication statement concerning each subscriber. It, however, does not mean, that data did not gather and were not stored. The difference consisted only that as a basis of creation of databases about subscribers the subordinate legislation acted, in particular, the Rules of interaction of communication statements mentioned above with the authorised bodies. Accordingly subparagraph 1 of point 1 of article 64 of the Law on communication from the substantial point of view on communication statements does not assign a new duty, and only fixes in the due legislative form that which existed earlier.

Absolutely other situation develops concerning a duty, to carry out which communication statements should since July, 1st, 2018. It is a question of storage of the maintenance of all messages of all without an exception of users a telecommunication service. Subparagraph 2 of point 1 of article 64 of the Law on communication [442] becomes the basis unprecedented on the scope of restriction of the constitutional law guaranteed by a part of 2 articles 23 of the Constitution of the Russian Federation. Thus essential parametres of restriction have appeared delegated to the Government of the Russian Federation, namely definition of an order, terms and volume of storage of the information specified in subparagraph 2 of point 1 of article 64 of the Law on communication. The legislator could establish only maximum period of storage of the information - 6 months.

From the konstitutsionno-legal point of view to the considered standard positions regulating a duty of communication statements on storage of the various information on subscribers and granting to its authorised state bodies, there is a considerable quantity of questions. We name only some of them. How much obosnovanno delegation to the Government of the Russian Federation of an establishment of essential parametres of the forced measure entered by the legislator and limiting constitutional laws? Whether restriction statutory can be considered in that case? Than the legislator was guided at a choice of periods of storage of the information - three-year concerning data about communications and as much as possible six-monthly concerning the maintenance of communications? Whether the restriction providing storage of the maintenance of communications of all without an exception of users on a being of a constitutional law on the privacy of correspondence, telephone conversations, post, cable and other messages encroaches? Why the legislator does not establish special procedures of the control over access of the authorised bodies to hranimoj according to the Law on information communication?

Certainly, Russia not the unique country in which the data storage about users by a telecommunication service and about their communications is provided. However the reference that in any countries there is a similar practice, it is impossible to prove an admissibility from the constitutional point of view of the restrictions established by the Russian laws. Besides, the measures similar at first sight which has received fastening both in domestic, and in foreign legislations, on closer examination can appear absolutely various. So, for example, for emergency, received fastening in the German legislation, and the Russian data storage it is impossible to consider institute of preservation of data as communication statements comparable. Since the list of the information which are coming under to storage, periods of storage and finishing access order to corresponding information - on all these points the Russian regulation essentially differs from German.

Along with communication statements in the Russian legislation there is one more subject of law, obliged to store the information on communications. It is a question of organizers of distribution of the information in network "Internet" which are obliged by the occurrence to the Federal act № 97-FZ from May, 5th, 2014 [443]. According to subparagraph 1 of point 3 of the Federal act «About the information, information technologies and information protection» (further - the Law on the information) [444] on organizers of distribution of the information in a network "Internet" the duty on preservation of the information on users of a network "Internet" and about their messages within one year and to its subsequent granting to the state bodies which are carrying out operativnorozysknuju activity or maintenance of safety of Russia is assigned. Since July, 1st, 2018 organizers of distribution of the information in networks "Internet", as well as communication statements, should store the maintenance of messages about six months.

Owing to comparability of legislative registration of duties on a data storage, assigned to communication statements and organizers of distribution of the information in a network "Internet", are similar and konstitutsionnopravovye the questions arising with reference to institute of preservation of data, settled in article 10.1 of the Law about the information. To avoid unnecessary duplication, we name some. In particular, remains not clear why questions which owing to the basic importance should be solved in the text of the law, are regulated at subordinate legislation level (structure of the information which are coming under to storage, an order of its granting to the state bodies [445], an order, terms and storage volume with reference to the maintenance of messages). Uncertainty the concept maintenance «the organizer of distribution of the information in a network„ Internet “» which does not allow to establish unequivocally differs also, what subjects fall under it. Also open there is a question on, whether compulsion of reception of a preliminary judgement is supposed at a direction competent body of inquiry about reception of the information on the facts of reception, transfer, delivery and (or) processings of electronic messages and the information on corresponding users to the organizer of distribution of the information in a network "Internet" [446 [447].

The examples of legislative regulation resulted above as it is represented, not only confirm their necessity konstitutsionnopravovoj estimations as the constitutional legal proceedings, but also rather visually illustrate specificity of maintenance of constitutional laws of citizens in sphere of operatively-search activity. It is necessary to agree with A.L.Kononovym who, referring to I.L.Petruhina, notices, that «practice and a number of researches testify to inadmissible uncertainty and razmytosti legal regulation of HORDES, about absence of process of law, inadequately wide discretion of special services in definition of the powers, about an inefficiency of the control and judicial protection against a possible arbitrariness, that

449

Essentially reduces level of guarantees of inviolability of a private life ».

Resulting examples of standard positions which regulate processing of the personal data entering into the maintenance of a constitutional law on secret of communications, and require a konstitutsionno-legal estimation, we did not put before ourselves the purpose to present their detailed analysis, and wished to accent

Attention to the constitutional character of questions arising in connection with them. Finally it is necessary to define, whether the balance konstitutsionno significant values in operating standard regulation is observed by the legislator and whether the restrictions of the constitutional law guaranteed by a part of 2 articles 23 of the Constitution of the Russian Federation established by it can be considered admissible. The decision of the listed questions is within the exclusive competence of the Constitutional Court of the Russian Federation which is authorised to recognise standard positions constitutional / unconstitutional, and also to establish, whether there corresponds to the Constitution of the Russian Federation the sense given to standard positions pravoprimenitelnoj by practice. Thus legal positions of body of the constitutional control should find the fastening in decisions. To consider definitions of the Constitutional Court of the Russian Federation as practice shows, the state bodies, including judicial, are ready not always [448].

2.3. Personal data as a subject of protection of the right to inviolability

Dwellings

Fixed in article 25 of the Constitution of the Russian Federation the right to the inviolability of home can be interpreted as the right into which sphere of protection enter including the personal data fixed on material carriers, being in dwelling. As fairly marks I.A.Umnov, «personal papers, diaries and other materials stored in dwelling» [449] are inviolable. Continuing the given list, it is possible to specify in that, as personal computers, laptops, the demountable data carriers which are in dwelling, are covered fixed in article 25 of the Constitution of the Russian Federation by the right.

The volume of the maintenance of the right to the inviolability of home depends first of all that is understood as "dwelling" in konstitutsionno-legal sense. KS the Russian Federation in Definition from May, 12th, 2005 № 166 referring to positions of the Code of Criminal Procedure of the Russian Federation has specified, that dwelling can concern including uninhabited premises and the structures which are not entering into an available housing provided that they are used for temporary residence [450 [451]. It is represented, that positions of the Constitution of the Russian Federation do not interfere with extensive interpretation of concept of "dwelling" which is

Preferable as raises volume of the constitutional guarantees

453

The inviolability of home.

Accordingly premises, but also auxiliary premises concern dwelling (such, for example, as cellars, attics, extensions), economic constructions, rooms in hotels, chambers in hospitals, tents, personal garages, etc. objects [452] not only actually. The separate mention is deserved by that fact, that already in the Soviet literature under dwelling in the constitutional sense it was offered to understand not only a useful floor space, but also all auxiliary subsidiary premises [453].

The constitutional law on the inviolability of home urged to provide «free will of the person at decision-making on the admission of strangers in the dwelling» [454]. The restrictions of the granted right connected with penetration into dwelling against the will of persons living in it, should not only meet the requirements, 3 articles 55 of the Constitution of the Russian Federation provided by a part but also to occur exclusively «in the cases established by federal acts, or on the basis of a judgement» (article 25 of the Constitution of the Russian Federation). It is necessary to agree with I.L.Petruhinym who departs from literal understanding of norm of article 25 of the Constitution of the Russian Federation containing a word "or", and believes, that the federal act all cases when penetration into dwelling contrary to will of persons living in it is supposed should be defined, and also is established, in what of these cases, reception of a judgement [455] besides, is required.

Certainly, important role in definition of the maintenance of the right to the inviolability of home is played by that circumstance, that as penetration is understood not only physical intrusion into dwelling, but also intrusion with use of special means at which supervision over an event in dwelling is carried out without physical presence at it [456].

Feature of a design of the right to the inviolability of home is that it directly obliges all subjects to abstain from penetration into dwelling - both representatives of public authority, and private persons. Such interdiction finds expression in the formulation of article 25 of the Constitution of the Russian Federation according to which «nobody can get into dwelling against the will of persons living in it». The corresponding formulation gives the bases to consider a constitutional law on the inviolability of home as the right extending direct action on private-law relations [457]. Direct

Action of the granted right in private law, however, does not cancel a state duty «to provide guarantees and to establish sanctions for [its] infringement».

Between the right to the inviolability of home and the right to inviolability of a private life competition occurrence is possible when personal data coming under to protection enter into sphere of action of both rights (it is a question of personal data which concern a private life of the person and are thus fixed on the material carriers which are in dwelling). As well as in a situation with the right to the privacy of correspondence, telephone conversations, post, cable and other messages, application will be come under by the right to the inviolability of home, being special in relation to the right to inviolability of a private life. Such approach speaks including that circumstance, that article 25 of the Constitution of the Russian Federation establishes higher requirements to an admissibility of restriction of the right to the inviolability of home, accordingly, in interests of the subject of law that restriction was checked on conformity to requirements of article 25 of the Constitution of the Russian Federation.

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A source: Proskurjakova Maria Ivanovna. Protection of personal data in the law of Russia and Germany: constitutional and legal aspect. Thesis for the degree of candidate of legal sciences. St. Petersburg - 2017. 2017

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