Criminal law protection of private life in the context of negative and positive obligations of the state

The article examines the significance of the State of Ukraine’s fulfillment of the negative and positive obligation to ensure proper realization, non-interference and protection of the right to privacy for its criminal law protection. The author emphasizes the importance for each State which is a party to the European Convention on Human Rights to formulate a national criminal law policy around criminalization of socially dangerous encroachments on human privacy in the context of compliance with the provisions of Article 8 of the European Convention. The author reveals the concept and content of the negative and positive obligations of the State in this area. The author analyzes the doctrinal approaches to understanding the significance of the ECHR legal positions formed because of legal interpretation of the provisions of the European Convention as a source of criminal law and criminal law policy of Ukraine. The author develops the position that such legal positions are not a source of criminal law. The author concludes that the provisions of the Convention on ensuring respect for human privacy, as interpreted by the ECtHR in its judgments (whether in respect of Ukraine or any other State party to the Convention), may be recognized as grounds for criminalization in a narrow sense, which does not include penalization. Formation of two main approaches to understanding the “right to respect for private life” provided for in Art. 8, namely, as the state’s obligation not to interfere in the private sphere of a person (negative obligation) and as the state’s obligation to take active steps to protect this right (positive obligation), actually combines the right to non-interference by the state in the private life of a person and the right to respect, which is realized through the creation of effective mechanisms for the protection of the right to privacy by both state bodies and individuals. Thus, the need to fulfill the negative and positive obligations of the State to comply with Article 8 of the European Convention is a significant factor in the social conditionality of criminal law protection of respect for private and family life in the context.