9 Feb 2019 11:01

Telegram's remedies in Russian courts exhausted - lawyer

MOSCOW. Feb 9 (Interfax) - Lawyers for the Telegram messaging app have passed all the necessary stages to defend it in Russian courts in the case of its blocking, the case is now moving under the jurisdiction of the European Court of Human Rights (ECHR), Pavel Chikov, the head of the Agora International Human Rights Group, which is defending Telegram, told Interfax.

"The appeal in cassation in the Supreme Court was the last necessary step to exhaust the domestic remedies, which we had to go through to avoid any hindrances to the consideration of the Telegram case in the European Court of Human Rights," Chikov said.

It emerged last week that the Russian Supreme Court dismissed Telegram's appeal in cassation against the restriction to access to the messenger in Russia. In October 2018, the Moscow City Court dismissed a similar cassation appeal.

According to Chikov, "in civil and administrative cases, remedies are exhausted after two appeals in cassation." "The case in the Supreme Court was the second cassation, which gives 'green light' to appeal to the European Court of Human Rights," he said.

The ECHR may communicate a complaint in the Telegram case as early as this year, he said.

"The complaint has been registered, therefore it will certainly be communicated, although anything can happen. What is important is that we will file additions to the complaint related to the aforementioned cassation appeals, as the applicant should notify the court about the progress in their case at the domestic level," the lawyer said.

"The issue of the communication of the case will arise after additions are introduced. In reality, nothing prevents the European Court of Human Rights from communicating the complaint in the Telegram case at any moment, but I believe it will happen during 2019 at best, but maybe next year," Chikov said.

The Telegram case at the ECHR is "unique" at the international level, he said.

"The European Court has never heard such a category of cases, there is no decision on a similar case. There has never been a case like that in principle in the world. The Telegram case is unique in this sense. The case of FBI vs. Apple was a little like that, but it was related to the protection of devices rather that correspondence and communication," Chikov said.

According to Chikov, Telegram representatives lodged two appeals with the ECHR at the moment and both of them were have been assigned the same number. Therefore, one case, "Telegram Limited Liability Partnership vs. Russian Federation" that "comprises of two parts, namely the fine and the blocking," is now at the ECHR, the lawyer said.

"The first appeal was filed against the fine and registered last March. Then during the process of the blocking [Russia's telecommunications watchdog] Roskomnadzor applied for interim measures, the immediate restriction of access to Telegram. In response to granting the motion on interim measures, we appealed to the European Court for immediate action that the ECHR prohibit blocking Telegram until the case is heard at court. The European Court did not find grounds for immediate action but suggested filing a separate appeal against the blocking and we did so," Chikov said.

"The appeal in cassation against the fine is not necessary to exhaust domestic remedies in Russia, two instances are enough in accordance with the Administrative Offense Code, but we had to reach the Supreme Court regarding the blocking," he said.

As reported, in its appeal to the ECHR, Telegram, in particular, insists that its right to freely distribute information was violated. According to the applicant, the Russian authorities "did not even try to establish a balance between the need to counter terrorism and ensure the public security and the protection of citizens' rights to private life and the applicant's [Telegram's] right to disseminate information."

Speaking about the terms of the ECHR's consideration of the Telegram case, Chikov said that "such cases have never been heard at an international level anywhere." "The court does not have any particular reasons to hurry and establish a precedent," he said.

In 2017, the messenger refused to provide the Russian Federal Security Service (FSB) with decryption keys necessary to access users' messages.

On October 16, 2017, Moscow's Meshchansky District Court imposed an 800,000-ruble fine on the messenger. This ruling was subsequently upheld.

In the spring of 2018, Russia's telecommunications watchdog Roskomnadzor asked the Tagansky District Court to immediately block Telegram in Russia over its failure to comply with the FSB's demands. The Tagansky District Court upheld Roskomnadzor's request on April 13. An appeals court subsequently upheld this ruling.

In 2018, Telegram also lost a case in which it asked the Russian Supreme Court to declare the FSB's order illegal.

Representatives of Telegram, including its founder Pavel Durov, have repeatedly said that it is technically impossible to provide decryption keys.