The Supreme Court Collegium of judges of the Third court of the criminal chamber of the Cassation court refused to open cassation proceedings on charges of blocking six Internet sites. The court did not see in the blocking of sites the violation of the rights of Internet users.
This information is published in the Unified registry of court decisions, reports InternetUA.
As we wrote earlier, on July 29, the judge of Pechersky regional court of Kiev Sergey of Vovk took the decision to arrest the intellectual property rights that arise for the Internet users when using six web resources. Arrest the court decided to carry through the obligations of Internet service providers operating on the territory of Ukraine, to close access to them.
These sites, the court ordered the ISPs to block in the case CrystalSlot – 10 November 2017 had opened a criminal investigation into the activities of an organized group whose members are systematically committing felonies criminal offenses associated with misappropriation of another’s property by abuse of official position, participating in gambling, as well as the requirement of transfer of another’s property, coupled with the threat of violence, extortion of illegal benefit in especially large size. Finding the administrator (the”organizer activity”) of the website CrystalSlot, militiamen established that it uses some kind of email to which the “tied with a number of other online gaming venues, namely casinos (simulation of slot machines): http://1millionb.com, http://2millionb.com, http://vulkan-slots.com, http://casino-ra.com, http://vulkanslot.com”.
As it became known, one of the citizens of Ukraine on the definition of Pechersky regional court of Kiev was appealed, but the ruling of the Kyiv court of appeal from September 19, 2019, the appeal was returned to the plaintiff on the grounds that p. 9-2 part 1 of article 393 of the Criminal procedure code of Ukraine (hereinafter – CPC), it is not subject to appeal of the decision of the investigating judge. Disagreeing with the decision, the plaintiff appealed to the Supreme Court, which also decided that an ordinary citizen has no right to challenge in court the blocking of access to resources.
– The verification of the complaint and attached materials it was established that the appellate court returned the appeal of the plaintiff, citing that the latter did not provide the relevant documents confirming that he is the owner of intellectual property rights encountered by Internet users when using six web-based resources, and also refers to Internet service providers operating on the territory of Ukraine, in accordance with part 2 of article 42 of the law of Ukraine “On telecommunications” is included in the register of operators, telecommunications providers and listed on the official website of the National Commission exercising the state regulation in the sphere of communication and Informatization. In addition, the court of appeal in its decision noted that the plaintiff in the court session of court of appeal indicated that he is not the owner of the property on which the contested definition of arrest, and is a user of the Internet, the rights of which, in his opinion, is broken, according to a ruling of the Supreme Court. – Given that the claimant nor the court of appeal nor in the appeal has not demonstrated that he is the owner of proprietary rights, are seized, the motivation for the decision of the court of appeal on returning the appeal complies with the requirements of articles 370, 419 of the CCP.
On the basis of such approval, the Supreme Court returned to the plaintiff in his complaint.
Note that in the decision of the court of first instance grounds for blocking the sites was arrest “on intellectual property rights that arise in users of the Internet if you are using the web resources”. But the Supreme Court as the court of appeal decided that the ordinary user has not demonstrated that he is the owner of proprietary rights, are seized. Unknown, see whether the judges themselves the contradiction in their decisions.
Recall that in the second half of 2019, the year the Telecom community was rocked by a wave of “judicial” to block sites. Domestic servants of Themis managed to block a total of about hundreds of online resources which include not only sites that allegedly sold drugs, but also a number of unwanted Internet publications. Blocking was criticized by elected lawyers and Telecom experts method “arrest of property of intellectual property encountered by Internet users when using the web resource by the commitments of all Internet service providers, operating on the territory of Ukraine, to close access to the specified site.” This practice of “judicial blocking” Internet sites not registered in the Ukrainian legislation and its widespread use is a cause of concern: law enforcement officers continue to use it, despite the fact that, according to lawyers, the statement about the emergence of property rights among users of the website is actually incorrect, and even some courts recognize that claims about the arrest of property rights on the website contrary to the criminal procedure law, and the seizure is denied access to a web resource is provided by article 170 of the criminal procedure code of Ukraine. Both the public and the representatives of the Telecom business are afraid that such a way to block the web sites can become in the hands of the authorities an instrument of censorship, which is only “run in” on the so-called “allocatively” resources (and not only), and then applied universally. In addition to censorship risks, such decisions – and even an additional burden on operators and providers of telecommunications that can (and will) affect the cost of services for consumers.