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COMPARATIVE LEGAL ANALYSIS OF THE ESTABLISHMENT OF
THE RIGHT OF INVIOLABILITY OF HOME IN THE
CONSTITUTIONAL NORMS OF FOREIGN COUNTRIES
Fayzieva Gulrukh Muhammadi kizi
Lecturer of the department
"Constitutional Law"
Tashkent State law university
Email: tirkashevagulrux999@gmail.com
ORCID: 0000-0002-2650-0420
https://doi.org/10.5281/zenodo.11273764
When conducting a comparative analysis of the constitutions of different
countries and dividing them into three groups, the researcher took into account
the specific application of the above terms. Based on the term used, we can see
from what angle the emphasis was placed on the concept of inviolability of the
home, including the concept of home itself.
According to Article 32 of the Estonian Constitution, the home is
inviolable. No one may be subjected to forcible entry or search into a home, real
or movable property under his control, or place of work, except in cases and in
the manner prescribed by law, in order to protect public order, health or the
rights and freedoms of others persons , to fight a criminal offense, to apprehend
a criminal or to establish the truth in a criminal trial. As we see, according to the
Constitution of Estonia, the right to inviolability of the home extends not only to
the house where a person lives, but also to the place of work. It should be noted
that they recognize both real and immovable property as a type of property as a
dwelling.
Article 32 of the Constitution of Armenia also deals with the inviolability
of the home, which states that everyone has the right to the inviolability of the
home. In addition, the constitution itself prescribes for what purposes the
inviolability of the home may be limited. For example, for the purpose of
protecting national security, the economic well-being of the country, preventing
or solving crimes, protecting public order, health and morals, or fundamental
rights and freedoms. others. A search of a home can only be carried out by a
court decision in cases and in the manner provided for by the law of Armenia.
The law may provide for other cases of restriction of the right to inviolability of
home by court decision.
Article 15 of the Belgian Constitution also provides for the inviolability of
the home and refers to Belgian legislation.
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If we study Article 5 of the Brazilian Constitution, the house is the
inviolable refuge of a person, and no one can enter it without the consent of the
occupant, except in the case of a crime scene, disaster or rescue, or during the
daytime by order of the court. Analyzing the prescription of the Brazilian
Constitution, as a unique feature, we noticed that the subject whose permission
must be obtained to enter the house is indicated. But it is not defined what we
should understand by the concept of home (dwelling).
The Greek Constitution, namely Article 9, states that every person’s home
is a sanctuary. No house search may be carried out except in cases prescribed by
law and always in the presence of representatives of the judiciary. The Greek
approach to ensuring and guaranteeing the inviolability of the home is unique in
that, in addition to the legal approach, one can also see a philosophical approach,
which says that the house is a sanctuary. Here the importance and high level of
attitude towards the inviolability of the home is determined. In addition, the
direct presence of representatives of the judiciary is always required to carry
out any actions aimed at limiting the inviolability of the home.
The Constitution of the People's Republic of China states in Article 39
that the home of citizens of the People's Republic of China is inviolable. Unlawful
search or entry into a citizen’s home is prohibited. In previous constitutions of
countries such as Estonia, Armenia, Belgium, Greece, we could see the range of
subjects to whom the inviolability of the home applies. Due to the fact that the
inviolability of the home relates to personal human rights, the persons to whom
it applies were indicated as everyone. Only the Brazilian Constitution used the
term tenant. And in the Constitution of the People's Republic of China, as a
subject of legal relations, it is written that the home of citizens of the People's
Republic of China is inviolable, which is a unique feature.
Part 1 of Article 10 of the Finnish Constitution states that everyone’s
privacy, honor and inviolability of home are guaranteed. The same article, in
part 3, establishes that the law may establish measures that infringe on the
inviolability of the home and are necessary to ensure fundamental rights and
freedoms or to investigate crimes.
The Egyptian Constitution, namely Article 13, stipulates that houses are
inviolable. Except in cases of danger or call for assistance, they may not be
entered, searched, monitored, or wiretapped except by a judicial warrant
specifying the place, time, and purpose. All of the above is carried out in cases
provided for by law and in the prescribed manner. When entering or searching a
house, those inside must be notified and informed of the warrant issued in this
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regard. We again see a separate approach to understanding the inviolability of
the home, which, in addition to entering and searching the house, also includes
listening to conversations.
In the Constitution of the Federal Republic of Germany, in Article 13, Part
1, it is written that the home is inviolable and subsequent articles describe in
what cases the rights of inviolability, order and procedure can be limited. And
Article 8 of the Constitution of Great Britain states that everyone has the right to
respect for their private and family life, home and correspondence.
In the comparative analysis of the constitutions of various countries in
the context of the inviolability of the home, namely where the term home was
used. In the context of the considered constitutions, the term “dwelling” is
interpreted with some variations. This concept covers not only the physical
space where a person lives, but can also include a place of work (as is the case
with the Estonian Constitution). Also highlighted is the use of the term “home”
(in the Brazilian and German Constitutions), which, in addition to simply
indicating physical space, takes on additional aspects of refuge and privacy.
An interesting factor is the use of a philosophical approach in the Greek
Constitution, where the house is described as a sanctuary, which emphasizes the
high value and respect for the intimate area of citizens. While the Chinese
Constitution emphasizes the inviolability of the citizens' home, without
specifying its exact interpretation.
Restrictions on the privacy of the home also appear in constitutional
texts, with the main reasons ranging from the protection of public order and
security to the prevention of crime and the protection of the rights and freedoms
of others.
Thus, the variety of interpretations and approaches to the concept of “home” in
constitutional norms emphasizes the importance of this right and its unique
context in each country. The definition of "home" is not limited to physical space
only, but also reflects the values, priorities and philosophy of a society in
protecting the personal freedoms and privacy of citizens.
List of literature:
1.
Boeckenförde, Ernst-Wolfgang. State, Society, and Liberty: Studies in
Political Theory and Constitutional Law. Berghahn Books, 1997. Explores the
philosophical and legal underpinnings of constitutional norms, including the
inviolability of the home.
2.
Kommers, Donald P., and Russell A. Miller. The Constitutional
Jurisprudence of the Federal Republic of Germany. Duke University Press, 2012.
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Provides an in-depth analysis of the German Constitution, including Article 13
on the inviolability of the home.
3.
Sajo, András, and Renáta Uitz. Constitutions, Courts, and History:
Historical Narratives in Constitutional Adjudication. Edward Elgar Publishing,
2015. Discusses the role of historical and cultural contexts in shaping
constitutional provisions, with references to home inviolability.
4.
Smith, Eivind. Comparative Constitutional Law: A Nordic Perspective.
Universitetsforlaget, 1995. Examines constitutional law in Nordic countries,
including the Finnish Constitution's approach to privacy and home inviolability.
5.
Tushnet, Mark. Comparative Constitutional Law. Edward Elgar Publishing,
2014. Offers a comprehensive overview of comparative constitutional law, with
case studies including the protection of the home.
6.
Van der Schyff, Gerhard. Judicial Review of Legislation: A Comparative
Study of the United Kingdom, the Netherlands and South Africa. Springer,
2010.Analyzes judicial review practices, with insights into constitutional
protections like the inviolability of the home.
7.
Wagner, Markus, et al. Constitutionalism and the Role of Parliaments.
Springer, 2017. Discusses the role of parliaments in shaping and enforcing
constitutional norms, including those related to home privacy.
8.
Zimmermann, Augusto. Brazilian Constitutional Law. Springer, 2018.
Detailed examination of the Brazilian Constitution, including Article 5 on the
inviolability of the home.
9.
Alkema, Evert A. The European Human Rights Culture - A Paradox of
Human Rights Protection in Europe?. Intersentia, 2007. Discusses the European
context of human rights protection, with references to home inviolability in
various national constitutions.
10.
Sunstein, Cass R. Designing Democracy: What Constitutions Do. Oxford
University Press, 2001. Explores the functions of constitutions in democratic
societies, including protections of personal spaces like the home.
