Is it permissible not to tell the investigator the password for a phone or tablet and how to interpret such behavior, what are the nuances of qualifying extortion via email, how does the defendant’s use of instant messengers affect the punishment - RAPSI recalls the most interesting explanations of the Supreme Court of the Russian Federation in 2023 on the consideration of criminal cases with a digital element .
Phone password
The detainee may not tell law enforcement agencies the passwords for his gadgets and not be afraid that the courts will interpret such behavior as an admission of guilt, follows from the decision of the Supreme Court studied by RAPSI.
“The refusal of the accused to testify cannot be interpreted against him or be even an indirect confirmation of guilt,” the highest authority emphasizes.
According to the presumption of innocence, the person involved is not required to prove his innocence, and the burden of proving the accusation and refuting the arguments put forward in the defense lies with the prosecution, reminds the highest authority.
The Supreme Court notes that in this case, the courts unreasonably and in violation of the requirements of Part 2 of Article 45 and Article 51 of the Constitution of the Russian Federation referred to the refusal of the accused to voluntarily provide law enforcement agencies with passwords from mobile phones seized from him, and therefore experts were unable to gain access to the contents of the phone information.
“The courts took into account the method chosen (by the accused) to defend against the charges brought against him as a circumstance confirming his guilt, which is unacceptable,” the RF Armed Forces pointed out.
A conviction cannot be based on assumptions, and irreducible doubts about guilt arising from the assessment of evidence must be interpreted in favor of the accused.
Legalization of cryptocurrency
The highest court also clarified that the conversion of illegally obtained cryptocurrency into rubles can be interpreted as legalization. A drug dealer who cashed out criminal proceeds through the cards of his cohabitant’s daughter was acquitted by the court of first instance under Article 174 of the Criminal Code of the Russian Federation (Legalization), although during his criminal activities he transferred illegally obtained cryptocurrency worth more than 8 million rubles.
The highest authority notes that financial transactions for the purposes of Articles 174 and 174.1 of the Criminal Code of the Russian Federation mean any transactions with funds, including cash and non-cash payments, cash transactions, and the 2019 edition specifically states: the subject of legalization (laundering) can be including funds converted from virtual assets (cryptocurrency) acquired as a result of a crime. Similar explanations were given by the Plenum of the Supreme Court (resolution No. 32 dated July 7, 2015 [as amended on February 26, 2019]).
“Thus, the method chosen (by the accused) to receive funds by carrying out successive financial and banking transactions, namely: crediting funds to a controlled virtual account - the Bitcoin cryptocurrency, its further conversion through various virtual exchangers into rubles, transfer of funds to Bank cards registered in the name of another person and their cashing out through bank terminals indicate that the convicted person has a goal to legalize funds.
Contrary to the conclusions of the court of first and appellate instances, for the existence of a crime under Article 174.1 of the Criminal Code of the Russian Federation, the mandatory involvement of legalized funds in economic circulation is not required, since liability under this article of the law arises when it is established that the very fact of financial transactions has been carried out in order to give a legal appearance to ownership, use and disposal of funds or other property,” emphasizes the Supreme Court.
Messenger as a sign
Drug distributors who use Internet messengers in their “work” cannot avoid being classified as “using the Internet” in the sentence. The highest court rejected the convict's argument that he used Telegram for quick messaging to communicate with colleagues and relatives, and not to violate the law.
A convict contacted the Supreme Court and asked to commute his sentence because he allegedly used instant messengers only for official purposes, as well as to communicate with loved ones. However, the highest authority did not agree with this argument, since the examination proved the opposite.
Telegram was installed on the mobile equipment of the convicts, an account was created in it, graphic images were found in the folders containing areas of the area with caches of “bookmarks” of narcotic drugs, as well as directly pictures of various types of narcotic drugs, their advertising, as well as images with an online store, who was involved in illegal trafficking of prohibited substances. Also on the phones and laptops were advertisements and information about employment by “mortgagors.”
Moreover, from the correspondence in instant messengers it follows that one of the convicts was the curator of an online store selling drugs, which is confirmed by the testimony of an interrogated law enforcement officer, who, as part of operational search activities, corresponded with “virtual sellers”, but after the arrest of the defendants No one else responded to his letters and messages, the highest authority clarified.
Extortion or robbery?
Hackers-blackmailers caught by the investigation are subject to liability not only for illegal access to computer information (272 of the Criminal Code of the Russian Federation), but also under the article on extortion (163 of the Criminal Code of the Russian Federation).
The Supreme Court of the Russian Federation sent for review the case against a hacker who gained access to 17 company servers and, through blackmail, enriched himself by 0.8 bitcoins. The prosecutor initially believed that the accused should be charged with robbery, but the courts did not agree with this argument and the hacker was acquitted under this article.
The author of the protest, in particular, pointed out that to assess the threat as real, it does not matter whether the intention is expressed to carry it out immediately or in the future. Despite the fact that the person involved did not directly threaten to destroy or damage the information, creating obstacles to access it, coupled with the stated condition that the blocking be lifted only if his property requirements are met, is in fact a threat of rendering the information unusable for its intended use, then there is a threat of its destruction, as stated in the submission.
“It should be recognized that the fact that the courts of appeal and cassation did not pay attention to the essential circumstances established by the court of first instance resulted in a violation of the victim’s right to protect his interests, which distorts the very essence of justice and the meaning of the court decision as an act of justice,” the highest authority emphasizes.
Site registration
The Internet or darknet site on which drugs are distributed must not be separately registered for the court to classify a crime “using the Internet,” the Supreme Court of the Russian Federation clarifies.
A person convicted of attempted drug trafficking filed a complaint against the verdict, indicating that his website with bookmarks was not registered in accordance with the Federal Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media.” Since Roskomnadzor was not aware of the creation of this resource, the qualifications were allegedly chosen incorrectly, the convict considered.
“It should also be noted that the convicted person unreasonably makes judgments about the commission of a crime using the media. Such factual circumstances were not imputed to him and his actions were not qualified, including as an attempt on the illegal sale of narcotic drugs using the media, provided for by the Federal Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media”, - pointed out the Armed Forces.
Phone password
The detainee may not tell law enforcement agencies the passwords for his gadgets and not be afraid that the courts will interpret such behavior as an admission of guilt, follows from the decision of the Supreme Court studied by RAPSI.
“The refusal of the accused to testify cannot be interpreted against him or be even an indirect confirmation of guilt,” the highest authority emphasizes.
According to the presumption of innocence, the person involved is not required to prove his innocence, and the burden of proving the accusation and refuting the arguments put forward in the defense lies with the prosecution, reminds the highest authority.
The Supreme Court notes that in this case, the courts unreasonably and in violation of the requirements of Part 2 of Article 45 and Article 51 of the Constitution of the Russian Federation referred to the refusal of the accused to voluntarily provide law enforcement agencies with passwords from mobile phones seized from him, and therefore experts were unable to gain access to the contents of the phone information.
“The courts took into account the method chosen (by the accused) to defend against the charges brought against him as a circumstance confirming his guilt, which is unacceptable,” the RF Armed Forces pointed out.
A conviction cannot be based on assumptions, and irreducible doubts about guilt arising from the assessment of evidence must be interpreted in favor of the accused.
Legalization of cryptocurrency
The highest court also clarified that the conversion of illegally obtained cryptocurrency into rubles can be interpreted as legalization. A drug dealer who cashed out criminal proceeds through the cards of his cohabitant’s daughter was acquitted by the court of first instance under Article 174 of the Criminal Code of the Russian Federation (Legalization), although during his criminal activities he transferred illegally obtained cryptocurrency worth more than 8 million rubles.
The highest authority notes that financial transactions for the purposes of Articles 174 and 174.1 of the Criminal Code of the Russian Federation mean any transactions with funds, including cash and non-cash payments, cash transactions, and the 2019 edition specifically states: the subject of legalization (laundering) can be including funds converted from virtual assets (cryptocurrency) acquired as a result of a crime. Similar explanations were given by the Plenum of the Supreme Court (resolution No. 32 dated July 7, 2015 [as amended on February 26, 2019]).
“Thus, the method chosen (by the accused) to receive funds by carrying out successive financial and banking transactions, namely: crediting funds to a controlled virtual account - the Bitcoin cryptocurrency, its further conversion through various virtual exchangers into rubles, transfer of funds to Bank cards registered in the name of another person and their cashing out through bank terminals indicate that the convicted person has a goal to legalize funds.
Contrary to the conclusions of the court of first and appellate instances, for the existence of a crime under Article 174.1 of the Criminal Code of the Russian Federation, the mandatory involvement of legalized funds in economic circulation is not required, since liability under this article of the law arises when it is established that the very fact of financial transactions has been carried out in order to give a legal appearance to ownership, use and disposal of funds or other property,” emphasizes the Supreme Court.
Messenger as a sign
Drug distributors who use Internet messengers in their “work” cannot avoid being classified as “using the Internet” in the sentence. The highest court rejected the convict's argument that he used Telegram for quick messaging to communicate with colleagues and relatives, and not to violate the law.
A convict contacted the Supreme Court and asked to commute his sentence because he allegedly used instant messengers only for official purposes, as well as to communicate with loved ones. However, the highest authority did not agree with this argument, since the examination proved the opposite.
Telegram was installed on the mobile equipment of the convicts, an account was created in it, graphic images were found in the folders containing areas of the area with caches of “bookmarks” of narcotic drugs, as well as directly pictures of various types of narcotic drugs, their advertising, as well as images with an online store, who was involved in illegal trafficking of prohibited substances. Also on the phones and laptops were advertisements and information about employment by “mortgagors.”
Moreover, from the correspondence in instant messengers it follows that one of the convicts was the curator of an online store selling drugs, which is confirmed by the testimony of an interrogated law enforcement officer, who, as part of operational search activities, corresponded with “virtual sellers”, but after the arrest of the defendants No one else responded to his letters and messages, the highest authority clarified.
Extortion or robbery?
Hackers-blackmailers caught by the investigation are subject to liability not only for illegal access to computer information (272 of the Criminal Code of the Russian Federation), but also under the article on extortion (163 of the Criminal Code of the Russian Federation).
The Supreme Court of the Russian Federation sent for review the case against a hacker who gained access to 17 company servers and, through blackmail, enriched himself by 0.8 bitcoins. The prosecutor initially believed that the accused should be charged with robbery, but the courts did not agree with this argument and the hacker was acquitted under this article.
The author of the protest, in particular, pointed out that to assess the threat as real, it does not matter whether the intention is expressed to carry it out immediately or in the future. Despite the fact that the person involved did not directly threaten to destroy or damage the information, creating obstacles to access it, coupled with the stated condition that the blocking be lifted only if his property requirements are met, is in fact a threat of rendering the information unusable for its intended use, then there is a threat of its destruction, as stated in the submission.
“It should be recognized that the fact that the courts of appeal and cassation did not pay attention to the essential circumstances established by the court of first instance resulted in a violation of the victim’s right to protect his interests, which distorts the very essence of justice and the meaning of the court decision as an act of justice,” the highest authority emphasizes.
Site registration
The Internet or darknet site on which drugs are distributed must not be separately registered for the court to classify a crime “using the Internet,” the Supreme Court of the Russian Federation clarifies.
A person convicted of attempted drug trafficking filed a complaint against the verdict, indicating that his website with bookmarks was not registered in accordance with the Federal Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media.” Since Roskomnadzor was not aware of the creation of this resource, the qualifications were allegedly chosen incorrectly, the convict considered.
“It should also be noted that the convicted person unreasonably makes judgments about the commission of a crime using the media. Such factual circumstances were not imputed to him and his actions were not qualified, including as an attempt on the illegal sale of narcotic drugs using the media, provided for by the Federal Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media”, - pointed out the Armed Forces.
