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The Supreme Court of the Russian Federation considered a case of a hacker attack on a business company: the accused exposed information on 17 company servers, including gaining unauthorized access to trade secrets and personal data, and wrote an email to management in which he threatened to block and destroy computer systems if will not receive ransom in the form of bitcoins - 2 units, the cost of which was estimated at more than 1 million rubles.
The victims during the process indicated that blocking information on the servers would have deprived the company of the ability to fulfill its obligations to partners and led to a stop in the processes of shipment and delivery of goods. Blocking information databases created a real threat of grave consequences, witnesses noted. According to their estimates, the damage could amount to almost half a billion rubles. Therefore, representatives of the society explained, under the influence of the threat, they transferred 0.8 units of cryptocurrency to the defendant’s electronic wallet.
It is noteworthy that at the investigation stage the accused was charged with illegal access to computer information (272 of the Criminal Code of the Russian Federation) and extortion (163 of the Criminal Code of the Russian Federation), but the state prosecutor asked to reclassify extortion as robbery (161 of the Criminal Code of the Russian Federation) and the court supported his position.
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“From the analysis of the presented totality of evidence and the direction of intent and criminally active actions of the defendant, it follows that (the convict) openly in electronic correspondence expressed an uncontested demand of a property nature to representatives of the LLC for the immediate transfer of funds to him in an amount exceeding 500 thousand rubles, threatening to retain further blocking of computer information,” the verdict explains.
The first instance noted that it had no doubt that the defendant had selfish motives, since the purpose of the criminal actions was to obtain a monetary reward for providing keys for decrypting and restoring access to blocked computer information.
“The lack of legislative certainty of the legal status of bitcoins does not indicate the absence of material damage, since the LLC suffered losses,” the court said.
However, the appellate court stopped the criminal prosecution under the article of robbery for lack of corpus delicti. He also left the company's civil suit pending.
The appellate instance indicated that the conclusions of the trial court on the qualification of actions under Article 161 of the Criminal Code of the Russian Federation are not based on criminal law.
“Since, according to the meaning of the law, robbery presupposes the presence of the criminal and other persons in one place, the seizure of property during robbery occurs simultaneously with the expressed threat or immediately after it, which distinguishes robbery from extortion, in which the intent of the perpetrator is aimed at obtaining the required property in the future,” – explained the appeal.
Considering that at the time of the demand for the transfer of property, the accused was in Rostov-on-Don, and the employees of the LLC were in Tomsk, and the blackmail itself took place via e-mail, the appellate court came to the conclusion that the defendant’s intent was aimed at obtaining the required property in the future, since in these conditions the sending of an email could not be a means of taking possession of the property.
In connection with this, the appellate court considered that the actions did not contain all the signs of both robbery and extortion, which precluded bringing him to criminal liability. Moreover, the court recognized the hacker's right to rehabilitation. The cassation court agreed with these conclusions.
The Deputy Prosecutor General made a representation to the Supreme Court, who believes that the state prosecutor mistakenly proposed to reclassify the hacker’s actions as robbery.
Extortion or robbery?
“If the actions provided for in Art. 272 of the Criminal Code of the Russian Federation, acted as a method of committing other crimes (for example, modification of computer information protected by law or unauthorized access to it was carried out for the purpose of committing theft or fraud), they are subject to qualification in conjunction with the crimes provided for by the relevant articles of the Criminal Code of the Russian Federation,” explains the Supreme Court with reference to the position of the Plenum (paragraph 16 of the Resolution No. 37 of December 15, 2022).
When setting out in the verdict the circumstances of the crime of unlawful access to computer information, the court actually recognized the presence of extortion in the actions of the defendant, indicating that the demands of the convicted person were accompanied by threats to maintain blocking, destruction and damage to the organization’s computer systems and property, the Supreme Court draws attention.
At the same time, under the influence of a threat, the defendant received bitcoin to an electronic wallet, but the fact that the funds were ultimately captured by the courts was not regarded as a crime at all, the definition says.
The Supreme Court believes that one should agree with the arguments of the Deputy Prosecutor General.
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.
As a result, the Judicial Collegium of the RF Armed Forces decided to send the criminal case for a new trial from the trial stage to the court of first instance. (Case No. 88-UDP23-7-K8)
The victims during the process indicated that blocking information on the servers would have deprived the company of the ability to fulfill its obligations to partners and led to a stop in the processes of shipment and delivery of goods. Blocking information databases created a real threat of grave consequences, witnesses noted. According to their estimates, the damage could amount to almost half a billion rubles. Therefore, representatives of the society explained, under the influence of the threat, they transferred 0.8 units of cryptocurrency to the defendant’s electronic wallet.
It is noteworthy that at the investigation stage the accused was charged with illegal access to computer information (272 of the Criminal Code of the Russian Federation) and extortion (163 of the Criminal Code of the Russian Federation), but the state prosecutor asked to reclassify extortion as robbery (161 of the Criminal Code of the Russian Federation) and the court supported his position.
Back to the Future
“From the analysis of the presented totality of evidence and the direction of intent and criminally active actions of the defendant, it follows that (the convict) openly in electronic correspondence expressed an uncontested demand of a property nature to representatives of the LLC for the immediate transfer of funds to him in an amount exceeding 500 thousand rubles, threatening to retain further blocking of computer information,” the verdict explains.
The first instance noted that it had no doubt that the defendant had selfish motives, since the purpose of the criminal actions was to obtain a monetary reward for providing keys for decrypting and restoring access to blocked computer information.
“The lack of legislative certainty of the legal status of bitcoins does not indicate the absence of material damage, since the LLC suffered losses,” the court said.
However, the appellate court stopped the criminal prosecution under the article of robbery for lack of corpus delicti. He also left the company's civil suit pending.
The appellate instance indicated that the conclusions of the trial court on the qualification of actions under Article 161 of the Criminal Code of the Russian Federation are not based on criminal law.
“Since, according to the meaning of the law, robbery presupposes the presence of the criminal and other persons in one place, the seizure of property during robbery occurs simultaneously with the expressed threat or immediately after it, which distinguishes robbery from extortion, in which the intent of the perpetrator is aimed at obtaining the required property in the future,” – explained the appeal.
Considering that at the time of the demand for the transfer of property, the accused was in Rostov-on-Don, and the employees of the LLC were in Tomsk, and the blackmail itself took place via e-mail, the appellate court came to the conclusion that the defendant’s intent was aimed at obtaining the required property in the future, since in these conditions the sending of an email could not be a means of taking possession of the property.
In connection with this, the appellate court considered that the actions did not contain all the signs of both robbery and extortion, which precluded bringing him to criminal liability. Moreover, the court recognized the hacker's right to rehabilitation. The cassation court agreed with these conclusions.
The Deputy Prosecutor General made a representation to the Supreme Court, who believes that the state prosecutor mistakenly proposed to reclassify the hacker’s actions as robbery.
Extortion or robbery?
“If the actions provided for in Art. 272 of the Criminal Code of the Russian Federation, acted as a method of committing other crimes (for example, modification of computer information protected by law or unauthorized access to it was carried out for the purpose of committing theft or fraud), they are subject to qualification in conjunction with the crimes provided for by the relevant articles of the Criminal Code of the Russian Federation,” explains the Supreme Court with reference to the position of the Plenum (paragraph 16 of the Resolution No. 37 of December 15, 2022).
When setting out in the verdict the circumstances of the crime of unlawful access to computer information, the court actually recognized the presence of extortion in the actions of the defendant, indicating that the demands of the convicted person were accompanied by threats to maintain blocking, destruction and damage to the organization’s computer systems and property, the Supreme Court draws attention.
At the same time, under the influence of a threat, the defendant received bitcoin to an electronic wallet, but the fact that the funds were ultimately captured by the courts was not regarded as a crime at all, the definition says.
The Supreme Court believes that one should agree with the arguments of the Deputy Prosecutor General.
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.
As a result, the Judicial Collegium of the RF Armed Forces decided to send the criminal case for a new trial from the trial stage to the court of first instance. (Case No. 88-UDP23-7-K8)
