How many years of prison does Durov threaten in the worst case? Is it really possible to prove his guilt? And how will the French authorities follow him - with the help of a bracelet?

Answer the main questions about the case of the founder of Telegram

Experts interviewed by Medusa emphasize: they draw all the information about the process over Pavel Durov from the media and the statements of the authorities - the case file is not yet available to the public (why - read below). It is difficult to make forecasts in such a situation. In this text, we talk about what we can assume, based on the available information and statements of representatives of the French state.

Listen to the audio version of this text on "Radio Medusa"

What is the maximum term threatens Pavel Durov?

According to Article 132-3 of the Criminal Code of France, if during one court proceeding a person is found guilty of several crimes at the same time, punishment may be imposed for each of these crimes. However, if these punishments are imposed in the framework of one case (that is, for example, if a person is sentenced to deprivation of liberty at several points of the prosecution), then they are not summarized - a shorter term absorbs less.

The maximum term of imprisonment, threatening Durov in individual articles, is 10 years. This sanction is provided for several accusations at once.

Dmitry Litvinsky, a member of the lawyer chamber of Paris and an international law lawyer, in a conversation with Medusa, emphasizes that if an article by the French Criminal Code provides for imprisonment and the person was sentenced to such punishment, this does not necessarily mean that he will be sent to prison. Often, the court implies conditional punishment. But convention is applied only to a certain date: for example, a person can be given five years of imprisonment, but of them he is serving a sentence in prison for two years, and three are under supervision as conditionally convicted.

The prosecutor’s office at this stage tries to identify all articles that may be related to the case, explains Litvinsky:

This is necessary in order to have a certain freedom of action later. And so that the judge who has now decided on interim measures (subscription, control) saw that the case was serious. Some of them, with the final prosecution transferred to the court, may disappear.

One of the most unusual points of the prosecution is “ Prescribing cryptographic services aimed at ensuring confidentiality, without compulsory declaration”. What is it?

The prosecutor's office accused Durov in:

• providing cryptographic services aimed at ensuring confidentiality, without compulsory declaration;
• supply and import of cryptography funds without preliminary declaration.

In France, the circulation of cryptographic means is regulated by the law on trust in the digital economy and government decree .

• The country does not limit the import and export of cryptography means, which provide exclusively the functions of authentication (including two -factor) or integrity control (such as hash or digital signatures).
• The supply of other funds is subject to preliminary notification of the Prime Minister. The supplier is obliged to provide the head of the government with a description of the technical characteristics of these cryptography tools, as well as the source code of the software used.
• The provision of cryptography services aimed at ensuring confidentiality (like secret chats in telegram) is also subject to mandatory declaration. Because it is not mentioned in an appendix to a government decree with a list of cryptographic services exempted from this duty.

The maximum possible punishment for the absence of a mandatory declaration during the supply and import of cryptography funds is one year in prison and a fine of 15 thousand euros, when providing cryptographic services - two years of imprisonment and 30 thousand euros of the fine.

What else is important to know about accusations against Durov?

As Dmitry Litvinsky explains, among other accusations, Durov is charged with the commission of the crime described in Article 323-3-2 of the Criminal Code of France. This article entered into force on February 17, 2024-one day with an act of digital services of the European Union (DSA), which also provides for the liability of online platforms for illegal content. By the way, a preliminary investigation related to Telegram formally also began in February 2024.

The new criminal article referred to the fresh version of the law on trust in the digital economy, and the one to determine the online platform from the DSA.

Article 323-3-2 provides for the responsibility for providing the services of an online platform, which either provides exclusively anonymous connections to its users, or consciously allows you to distribute illegal content or provide illegal services, or ensures their payment directly or through intermediaries. It is important that the “operator” of the platform must act intentionally - in this case, he faces from five to 10 years in prison and a fine of up to 500 thousand euros.

In 2024, it became known about the first criminal case under this article: the accusations were brought by the administrators of the telegram channel, who offered to buy phishing sets from them. 1600 users were signed on the channel. The French legal publication Dalloz wrote that Telegram has a “bad reputation in police services due to the lack of a reaction to legal requests,” but still “despite the silence of the Durov brothers, the police managed to identify the suspect.”

Durov was forbidden to leave France. Will he wear an electronic bracelet?

No. An electronic bracelet in French justice is an additional measure of control. Judging by the statement of the prosecutor's office, the court decided not to apply it to Durov, lawyer Dmitry Litvinsky explains Medusa. That is, the founder of Telegram should just come to a meeting with an officer who will be entrusted with control twice a week - usually at such meetings with the accused they conduct a short conversation.

Physically, Durov can easily leave the territory of France, says Litvinsky. The authorities, in fact, do not have the opportunity to control its movement inside the Schengen zone. But in this case, Durov will commit an additional criminal offense for which the French police will also be able to pursue him (and the punishment for such a crime will also be separate, not related to the charges already made). In addition, such actions may tighten the punishment, to which the court can be sentenced to the theory of Durov. In France, part -time sentences are carried out .

But if Durov leaves France, he will be able to leave the EU and hide from justice. Or not?

Apparently, this is technically possible. According to lawyer Dmitry Litvinsky, customs control in the EU countries does not always work correctly:

Last week I saw a story when a person who was also placed under judicial control and was forbidden to leave France, was able to leave the country's territory. Moreover, the system at the border pointed out the ban only on the way back - at the moment when he returned to France. Only after that was a criminal case was opened against him. The fact of departure from France was discovered in three months. But in the case of Mr. Durov, this would be found faster: he has an obligation to appear in the police twice a week.

Of course, Durov, as a public person, will be more difficult to leave imperceptibly. But it must be taken into account: at any time, interested parties (and this may be Pavel Durov himself, his lawyer or even the prosecutor) may require review of judicial control measures. It is likely that the ban on departure from France at some point can be lifted, Litvinsky explains:

I think that the ban on departure from France is to some extent a transitional measure necessary for French justice to keep his face. If everything goes fine for Durov, they will probably be removed this measure.

What stages of the trial are now waiting for Durov? And how long can it last?

In the framework of the criminal case, the police and the prosecutor's office conduct an investigation. Pavel Durov during the investigation will be under the control measures chosen by the court - as we wrote above, they can be completely removed. If this happens, he just needs to appear in time in the court when the investigation ends.

The consequence itself can last a very long time, says lawyer Dmitry Litvinsky:

It can be a year, and two, and three. I have a business in which the investigation lasted five years. It is difficult to make forecasts, but it is easy to imagine that this, for example, will be a year.

After the investigation is over, the prosecutor will have to transfer him to court - if he decides that he supports the accusations against Durov. Then the procedure for judicial consideration will begin - it is also not bouncing, because lawyers should give time to familiarize themselves with all the materials of the case. The judicial stage can easily take half a year, suggests Litvinsky. “Now in France quite distant dates of court hearings are appointed,” the lawyer says.

There were already processes similar to Durov's work in France? And is it possible to make any forecast based on practice?

“I am unknown in French practice - if only because there are no other French -made messengers similar to coverage,” says lawyer Dmitry Litvinsky. - Durov has a French passport, which gives law enforcement agencies the opportunity to pursue it. If we were talking about foreigners who were in no way connected with France, it would be difficult to incriminate all these crimes to them. The accusation believes that some criminal communication within the framework of the messenger could take place in France-this is also an important detail. ”

In French law, there are certain requirements for owners of such platforms like Telegram, Litvinsky explains. For example, a mechanism should be provided on the platform with which the user could send the moderator a complaint about the insult - and the moderator must delete this message. If the owner of the platform does not provide for a mechanism for complaints related to slander and insults, in France they can start a criminal case against him. It should be noted that amongthe charges against Durov, there is no such claim. However, as Medusa says Dmitry Litvinsky, in the Criminal Code of France there are a lot of articles on which the claims can be presented to the owner of the online platform.

There are also requirements that the European Union present to the owners of the platforms-this is, among other things, the already mentioned act of digital services, the main document regulating the activities of the online platforms in the EU.

DSA sets for the platforms the minimum mandatory criteria that must be observed, but does not imply criminal punishment - the document describes only financial sanctions for the guilty. At the same time, criminal law within the EU is local in nature - in each country of the Union there are norms. DSA works separately from local legislation.

Durov is charged with "complicity" in rather serious crimes. How fair is it?

The key moment of these accusations: the French authorities will have to prove that Pavel Durov had the intent to committhe above crimes, Dmitry Litvinsky explains Medusa:

This should be serious evidence that Durov had an intent to commit those specific crimes against which a criminal case was instituted. The current questions to Durov are rather not to the owner of the platform, but to the director of the company that is engaged in its management (that is, to the person who is responsible for the technical part). It seems to me that it will be very, very difficult to prove this intent. There are practically no chances here, and, most likely, the French investigation itself should understand this.

Then what goals are now pursued by the authorities of France?

Dmitry Litvinsky believes that Pavel Durov “could become a victim of his own disrespect for the French judicial system” - according to the lawyer, this confirms the commander , published by the prosecutor's office:

The second point of the prosecution is a refusal to communicate with the competent French authorities and respond to their requests. In the document, it was stated that Telegram sent requests, but the company completely ignored them. They could answer, show their readiness to cooperate, but, apparently, did not do this.

In France there is a national minors' protection office (OFMIN) - it was opened in November 2023. This young service receives about 700 notifications per day regarding crimes that are committed against minors, including the Internet, says Litvinsky. Some of these notifications belonged to Telegram - the service was to respond to these notifications.

It should be borne in mind that in France the messenger is not too famous, Litvinsky continues:

And there is a messenger through which crimes are committed. It is logical that the French authorities send requests to the management. Telegram does not answer (or answers incorrectly). After that, the French authorities put on the wanted list of the head of the messenger to interview him about this. Then Pavel Durov enters France (I assume that he did it freely without fear of persecution). The search system works. After that, the gendarmes, by law, must detain Pavel Durov and bring to the police to find out what kind of questions have questions for him - which happened.

The investigation probably begins to ask him questions, but suddenly, different notes and claims are sent about this “ordinary” case about this “ordinary” case. It turns out that a very famous person is sitting in the cell, who is a certain pillar of the Internet movement. It’s just that it is impossible to let him go - the investigation was obliged to ask him the appropriate questions. In my opinion, the court entered quite competently, releasing Durov on bail - I think that he would soon be allowed to leave beyond France. The authorities tried to keep his face in this situation.

It is worth emphasizing once again: we do not know whether the materials of the criminal case will be transferred to the court and whether Durov will punish. Even if this happens, then there may be an appeal and cassation, which often last years. After that, Durov can contact the ECHR (more about this - below).

If the accusations are removed, is it possible to assume that the French authorities violated Durov's rights?

According to Dmitry Litvinsky, the French authorities did not allow any legal violations (if we proceed from the information that we know at the moment):

He was detained, the established period of detention was respected, then there is a conventional investigation. A criminal case may be open against any person if there is any reason to suspect him of a criminal offense. This is one of the legal (and to some extent even democratic) mechanisms.

At the same time, if human freedom was limited during the investigation, but then the court justified him, they can be awarded financial compensation. According to Litvinsky, it is usually not very large and is hardly comparable to the state of Pavel Durov. In addition, the founder of Telegram forced to make a deposit of five million euros - this is a guarantee that he will observe the measures of investigative control (that is, it will be noted in the police and will appear in court). The authorities take into account that the amount of the pledge must correspond to the income and standard of living of a person. If Durov complies with the requirements, this amount will be returned to him.

But the authorities can detain a person to exert pressure on him. Can we assume that Durov’s case is politically motivated (even if the charges are removed)?

This question remains the main topic for disputes among politicians , journalists, entrepreneurs, users of social networks and even among readers of Medusa . It is difficult to answer it unequivocally. We asked to comment on the process of lawyer Karinna Moskalenko.

Why is her opinion especially important?

To know

In 2001, Moskalenko became the first Russian lawyer to win the case in the European Court of Human Rights. Since 2017, she has been the director of the Center for Assistance of International Protection in Strasbourg. From 1999 to 2007 she was a member of the expert council of the Commissioner for Human Rights in the Russian Federation. Member of the Moscow Helsinki Group since 1999.

In 1994, Moskalenko founded the Center for Promoting International Protection in Moscow and is currently one of its lawyers. The ECHR made positive decisions for more than 500 cases that the center’s lawyers represented. In addition, Moskalenko is an honorary member of the International Commission of Lawyers and its Commissioner from 2003 to 2018.

Karinna Moskalenko is one of the lawyers in the case of Mikhail Khodorkovsky, she was invited to represent his interests at the international level, in particular, in the ECHR.

We give Moskalenko comment completely:

As a lawyer, not seeing the materials that the investigation and the court have, I cannot judge anything - I can only speak in general categories. General categories relate to freedom of information and information protection. In this case, on the surface lies that there is an offensive on this freedom.

This does not mean at all that I maintain actions against Durov, but the problem of those who comment on this business is that, speaking of freedom of speech, freedom of information, protecting information and protecting private data, people (sometimes these are journalists and lawyers ) They proceed from the fact that this is supposedly absolute law. Here is the right to protection from torture - it is absolute. Есть и другие абсолютные права. Но право на защиту свободы слова, распространения информации, сохранения данных (это все восьмая и десятая статьи Европейской конвенции ) — право не абсолютное, оно может быть ограничено. Более того, в некоторых случаях оно должно быть ограничено. В Европейской конвенции, которая действует одинаково для всех стран — членов Совета Европы, все исключения указаны. Иногда это защита государственной безопасности, иногда защита прав других лиц — и так далее.

Это про общие принципы. Что касается индивидуального кейса — то нужно видеть, в какой степени затронута, например, государственная безопасность. По моей практике с российскими делами, власти РФ постоянно ссылаются на секретность, защиту безопасности, обороноспособности, но прямую связь между безопасностью и теми ограничениями, которые они вводят, вы увидите не всегда. Действуют ли французские власти пропорционально? Я вам сказать не смогу. Для этого нужно видеть те материалы, которые сейчас находятся перед судом, прокурором и следователем. Считать, что это политическое задержание, я не могу до тех пор, пока не знаю конкретных моментов дела. Может быть, юристы и адвокаты могут требовать большей прозрачности — если это [материалы дела] действительно не связано с вещами, которые до поры до времени должны оставаться в секрете для предотвращения каких-нибудь преступлений или негативных последствий, которые могут наступить в случае раскрытия информации.

Но все это должно контролироваться судом — только суд в любом правовом государстве вправе оценивать пропорциональность предпринятых ограничений. Итак, право на свободу информации, свободу получения, свободу распространения информации, защита информации и персональных данных — это не абсолютные права. Вот что мы имеем в сухом остатке. И эти неабсолютные права могут быть ограничены, а в некоторых случаях, выполняя позитивные обязательства по защите прав других лиц, государство даже обязано вводить такие ограничения.

Если в России что-то засекречивается — вы можете никогда не получить доступ к этому. Но [в ЕС] вопрос пропорциональности закрытия данных временный и действует на определенный отрезок. Некоторые ограничения могут действовать 50 лет, а некоторые — пять дней. Как только отпадает необходимость скрывать данные — власти должны делать их прозрачными. Заинтересованные лица могут этого требовать.

Последним мерилом всей этой пропорциональности является ЕСПЧ. Когда закончится дело — юристы могут пойти в ЕСПЧ, и тот взвесит необходимость, достаточность оснований [для закрытия информации] и так далее. Поскольку Франция — член Совета Европы, она признает обязательность решений ЕСПЧ. Но если обвиняемый не захочет обращаться в ЕСПЧ — значит, это полностью останется на откуп французской судебной системе.

Думаю, что властям нетрудно будет доказать это [обоснованность закрытия информации], потому что если речь идет о борьбе с преступностью, то излишняя прозрачность может дать преступникам ту информацию, используя которую они могут препятствовать правосудию.

Петр Сапожников и Денис Дмитриев