Review article
Criminal Offenses of Unauthorized Audio Recording, Eavesdropping, and Unauthorized Photograph Taking/ with Reference to Case-Law of the European Court of Human Rights and Elaboration of the Issues of Privacy and Notion of the Lack of Authorization
Marta Dragičević Prtenjača
orcid.org/0000-0001-9666-4765
; Faculty of Law University of Zagreb, Zagreb, Croatia
Abstract
The paper deals with issues related to offenses of Unauthorized Audio Recording and Eavesdropping under Article 143 of the Criminal Code and Unauthorized Photograph Taking under Article 144 of the Criminal Code as offenses against privacy. Privacy as a concept is not defined in the Criminal Code, and there is no universally accepted definition of privacy either in the Croatian legislation or international level. Privacy takes many forms, such as the right to the protection of the spoken or written word, private and family life, and other rights guaranteed by the Constitution of the Republic of Croatian and international documents. The right to privacy protects these forms with laws that deal with specific areas. The author elaborates the meaning of privacy, the meaning of the right to privacy and the private space. Special attention is paid to the concept of the lack of authorization involved in these offenses, as well as its double function. This raises the question of who is actually authorized to give consent to the recording so that it may not be considered unauthorized. The paper analyzes judgments of the European Court of Human Rights, which dealt with the subject matter of privacy, the private space and the right to privacy of individuals and public figures in public places and events, as well as the issues of the lack of authorization. In the previous Criminal Code of the 1997, both offenses of unauthorized recording, were substantially different from today's incriminations, and presented as different forms of one criminal offense, namely unauthorized recording and interception under Article 131. Incriminations of unauthorized recording and eavesdropping in legislation of the Republic of Germany and Switzerland, are presented and analyzed, with a brief comparison to offenses in the Croatian Criminal Code. The author discusses concurrence of offenses of Unauthorized Audio Recording and Eavesdropping under Article 143 of the Criminal Code and Unauthorized Taking of Pictures under Article 144 of the Criminal Code with the criminal offense of Abuse of Position and Authority under Article 291 of the Criminal Code.
Keywords
unauthorized recording; unauthorized interception; European Court of Human Rights; protection of privacy
Hrčak ID:
121900
URI
Publication date:
15.3.2014.
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