We are appealing illegal blocking of sites throughout our vast country. In Bashkiria, together with Roskomsvoboda, we cooperate with the Ufa lawyer Ramil Gizatullin. He shared his observations on how the Bashkir courts make decisions on blocking sites and why they do it in the woods, some for firewood.
In the course of monitoring the Internet network (this phrase is very fond of officials when registering violations), we find publications on Office of the Prosecutor of the Republic of Bashkortostan and the news agency on filing applications for blocking sites containing information prohibited for distribution. The courts and prosecutors of the same region make different decisions in similar cases, and this gives them a reputation as unpredictable government agencies.
It is necessary to protect citizens from unscrupulous persons in the virtual space, and even in accordance with Russian legislation, this can be done adequately. But at the same time, I would like to have a uniform judicial practice and prevent a situation where three lawyers (for example, a prosecutor, a judge and a lawyer) will have four opinions on the issue of blocking one site.
Let us consider three variants of decisions of the Bashkir courts, different in justification, when they receive similar applications for prosecutorial blocking.
Non-compliance with the pre-trial dispute resolution procedure: reject applications
Let's start with the card file of cases of the Gafury Interdistrict Court of the Republic of Bashkortostan.
January 30, 2020 to court sixteen administrative lawsuits from the district prosecutor's office demanding to block websites (one from the prosecutor's office of the Aurgazinsky district and fifteen from the prosecutor's office of the Gafury district).
In all applications, a state body was named as an administrative defendant - a territorial division of Roskomnadzor, which obviously is not a user or owner of sites containing information prohibited for distribution. Making Roskomnadzor the defendant in cases of blocking is a legal mistake. In such cases, he can act solely as an interested person who conducts domain names, pointers to pages of sites on the Internet and network addresses that make it possible to identify sites on the Internet that contain information whose distribution is prohibited in the Russian Federation.
It is noteworthy that in all sixteen cases, the judges returned applications due to non-compliance with the pre-trial procedure for resolving this category of disputes.
These court decisions have not been published, but based on my experience, I can assume that the statements of claim did not contain information about the owners or users of the resources that the prosecutor's office wanted to block. And this is a 100% basis for the annulment of the court decision. So why initially work in the trash?
Non-compliance with the pre-trial procedure for settling disputes: accept applications
How are similar cases in other courts, for example, in the Blagovarsky Interdistrict Court of the Republic of Bashkortostan? There from January 17, 2020 to February 28, 2020 thirteen administrative statements of claim (eleven from the prosecutor's office of the Buzdyaksky district and two from the prosecutor's office of the Blagovarsky district).
The same territorial division of Roskomnadzor was indicated as the defendant. All these statements were satisfied by the court, despite the fact that from the published text of the decision in case No. 2a-270/2020 of the court it can be seen that the pre-trial procedure for resolving the dispute and calling the owners or users of the sites was not undertaken. Why do some courts require pre-trial settlement, while others do not?
The territorial division of Roskomnadzor is involved as an interested party: accept applications
In the Iglinsky Interdistrict Court from March 3 to March 11, 2020 32 statements of claim from the prosecutor's office of the Nurimanovskiy district on the blocking of websites. All of them were satisfied by the court without observing the pre-trial procedure for resolving the dispute and notifying the interested parties.
Another noteworthy thing is that the territorial division of Roskomnadzor was involved not as a defendant, as in the first two cases, but as an interested person. At least something is done right here.
Judicial practice and the position of representatives of the supervisory authority differ from district to district, which is unacceptable in the case of law, as it hinders the formation of a unified judicial practice.
Lawyer Ramil Gizatullin emphasizes that the formation of a unified judicial practice is important primarily for the state bodies themselves:
βThe Russian lawyer and statesman Anatoly Fedorovich Koni at the end of the 19th century said: βThe authorities cannot demand respect for the law when they themselves do not respect it ...β. I believe that the republican prosecutor's office should study the decisions made in the cases and, in order to preserve their reputation, file a protest against them. I believe that the leadership of the republican Supreme Court and the prosecutor's office should take real steps to correct the situation in this matter, perhaps even by drawing up methodological recommendations for this category of cases.β
This directly concerns the competence of law enforcers, since in the event of an annulment of the judicial act, the appellant not only restores the status quo, but also receives the right to recover damages and expenses of the representative.
For example, this happened in the case with the statement of claim of the prosecutor of the Blagovarsky district, who, after the annulment of the judicial act, abandoned the claim on appeal. Soviet District Court of Ufa from the Ministry of Finance of Russia legal expenses in the amount of 10 rubles for the services of a representative. The amount is small, but the reputational costs for the state in this story are more significant.
Source: habr.com