The right of a person to the secret of correspondence: issues of public law and private law terminology

Abstract

The article addresses the problems of public law and private law terminology in the field of secret correspondence. There are any differences and conflicts in the application of terms in international legal acts and in the national legislation of Ukraine were revealed. It was found out that the constitutional right of a person to the secrecy of correspondence, phone conversations and correspondence is the only right, which should be called the right to secrecy of correspondence. In the field of public law, a person's right to secrecy of correspondence is protected by establishing prohibitions, forms and measures of responsibility for their violation. In the field of private law, protection of the right to secrecy of correspondence is carried out by defining the positive content of this right and granting a person specific powers to implement it.
 According to the norms of constitutional and criminal legislations, the object of the right to secrecy is the exchange of letters, telephone conversations and correspondence, while in the norms of civil legislation such an object is "correspondence", which covers all types and means of communication used by a person, including telephone conversations, any exchange of letters, etc.
 In the texts of regulatory legal acts, the terms "private life" and "personal life" are used as identical. At the same time, the norms of criminal procedural law establish the «right to communication», which is not found in the norms of civil legislation, nor in the doctrine of private law, where the "right to privacy" is widely used. According to international law, secrecy of correspondence is an element of the right to privacy, but this idea is not embodied in the provisions of the legislation of Ukraine, where the right to secrecy of correspondence is protected as an independent right of a person. The right of a person to secrecy of correspondence in its content is related to the concept of a person's private life and is undoubtedly an element of his private life. Therefore, regardless of the content of the correspondence, the privacy of each person's correspondence must be protected to the same extent as the right to respect for private life is protected.