The prosecutor's office for the first time will pay for unlawful blocking of the site
6 years ago, the unfortunate №139-ФЗ was passed. It was he who introduced the Roskomnadzor blacklist system in Russia and enabled the federal executive authorities and prosecutors to demand the blocking of websites by Russian providers. And all these 6 years we tried in various ways to cope with this law, which, as expected, showed no efficiency, and brought only enormous damage to the Russian Internet and its inhabitants.
We have to admit that in 2012 we mistakenly believed that the greatest threat of abuse and unjustified blocking came from the Federal executive authorities, which were given the authority to demand extrajudicial restriction of access to information. They say there is no adversary process, the ability to declare their own legal position. But how could we be wrong then, not realizing that the main danger comes from prosecutors and courts, who can block sites with impunity, without bearing any responsibility for abuses and unlawful decisions. After 6 years, we were finally able to attract the prosecution authorities to property liability for an unreasonable lawsuit and to punish them with a ruble for violating the right to freedom of dissemination of information.
According to Roskomsvoboda, over the entire period of the existence of the law, the Russian courts sent about 78,000 websites to block . Let me remind you that the list of grounds for blocking according to Article 15.1 of the Federal Law on Information is open, which means that prosecutors can invent new and new grounds for going to court. Here is an incomplete list of what the Russian courts blocked at the request of district prosecutors:
in 2016, St. Petersburg prosecutors decided that information on the use of cryptocurrencies was one of the types of illegal information, after which they began to actively file claims about restricting access to various cryptocurrency portals in Runet .
For a long time we fought in the courts of various instances in order to cancel the apparently unjust decisions of the St. Petersburg courts. And finally, in 2018, the turning point came. At first we achieved the cancellation of the decision of the Oktyabrsky District Court of St. Petersburg on blocking sites of 40 crypto-exchangers . And in April 2018, we received from the Supreme Court a rather important definition for further practice in the case of blocking the website bitcoininfo.ru, in which the RF Supreme Council indicated that when considering cases of recognizing information on the Internet as illegal, content authors and site owners. However, such statements should not be considered in the order of the Code of Civil Procedure of the Russian Federation, but in the order of the CAS RF. The case was sent for a new review in the appeals instance to the St. Petersburg City Court.
In the second round of the consideration of the case, the St. Petersburg City Court decides to send the case for a new consideration to the same Vyborg District Court, which made the initial decision. And after being re-examined there, taking into account the recent position of the Supreme Court that such claims are subject to review under the CAS at the location of the Roskomnadzor or its territorial body, the judge of Nikolayev accepts the Definition on transferring the case on jurisdiction to the Oktyabrsky District Court ( its jurisdiction concerns the management of the RKN in the North-West Federal District).
And when re-examining a claim on the merits, the prosecutor’s office of the Oktyabrsky district, understanding its weak legal position, refuses the claim, citing the following:
“The prosecutor’s refusal of an administrative claim was motivated by the fact that at present the rights and legitimate interests of an indefinite number of persons are not violated, since the current legislation, the provisions of which are currently aimed at legalizing, has changed from the moment the prosecutor applied to court cryptocurrencies, including Bitcoin. "
Determination of the Oktyabrsky District Court of St. Petersburg from 09/20/2018 in case No. 2а-3382/2018
It should be noted that the prosecutor did not want to admit his own incompetence in filing a lawsuit, and apparently tried to mislead the court, because no legislation defining the status and order of circulation of cryptocurrencies (despite numerous discussions of various draft laws) during this time was not accepted.
This time we made a decision to disagree with the prosecutor’s refusal of the claim and insisted on a full-fledged consideration of the case, in order to finally dot all i concerning the legality of the circulation of cryptocurrencies and information about them. As a result, the court did not do it the first time, but nevertheless accepted the prosecutor’s refusal of the claim and discontinued the administrative proceedings.
However, one very important and still unresolved question still remained open for us and our client. Who will be responsible for the expenses of the site owner, which he had to carry out in connection with the prosecutor’s office filing an unreasonable claim and such a lengthy consideration of the case? Then we filed a petition for reimbursement of legal costs in the amount of 234,450 rubles, because by virtue of Part 1 of Art. 113 CAS of the Russian Federation at refusal of the administrative claimant from the administrative claim, the administrative claimant shall reimburse the administrative respondent the expenses incurred by him in connection with the administrative case.
Naturally, the representative of the prosecutor's office and the local Ministry of Finance in every way tried to object to the satisfaction of the petition for the recovery of court costs, citing the fact that they say there is no fault of the prosecutor's office, and the refusal is motivated by the fact that the legislation on cryptocurrency regulation has changed.
After being removed to the deliberation room, the judge Nikolaev returned to the courtroom and announced that the petition for the collection of court costs was satisfactory, although it reduced them to a reasonable limit of 150,000 rubles.
Still Definitiondid not enter into force, and the representative of the prosecutor's office said that they would certainly appeal against it, since the said judicial act spoils the annual statistics of the department for 2018, which should be submitted as soon as possible. We hope that the determination will nevertheless stand in the city court and the appeal will support the conclusions of the lower court.
We believe that this decision (which, by the way, caused a large media resonance) can give impetus for the more active protection of their interests in the courts by the owners of sites for which similar absurd lawsuits are filed, and also make the prosecution authorities to think hard before another campaign in court with far-fetched grounds. Of course, in Russia there is no precedent law. Nevertheless, taking into account the principle of “uniformity of judicial practice”, such a decision may be important for the formation of a stable judicial practice in terms of the property responsibility of the prosecution authorities and affect the reduction in the number of lawsuits for declaring information illegal in order to block it.