Last year, courts issued 41 sentences for online offenses
In 2020, the courts issued 41 sentences under articles of the Criminal Code for offenses on the Internet. These are the figures of the report “Internet Freedom in Ukraine -2020" of “Human Rights Platform" public organization, as ZMINA reported.
According to the analysis of the Unified State Register of Judgments, two of these sentences were to acquit and in only two cases were persons sentenced to imprisonment, with one person in absentia. That is, only one person was directly responsible for spread of some undue content on the network. The reason for this was a call on Facebook to seize Chuguiv City and other local councils, as well as to encourage unification with the Russian Federation. For this, the accused was sentenced to one year in prison.
According to experts who have analyzed the observance of digital human rights in Ukraine, in terms of statistics, the application of the relevant provisions of the Criminal Code does not create excessive restrictions on free discussions in the digital space.
One should see what are the negative trends in judicial practice under the relevant rules of criminal law.
First, courts still refuse to independently analyze the statements that are the subject of consideration, often they reiterate the conclusions of experts in its sentences.
"A clear example of the opposite approach is the decision of the Oktyabrsky District Court in Poltava of August 7, 2020, where the analysis of the content of the comments led to an acquittal on the grounds that the accused's statements do not contain any factual data, but are evaluative judgements in a satirical form, with the use of linguistic means in relation to the events taking place in the state where he lives and of which he is a citizen, ”the report read.
Courts also do not analyze the extent to which the content for which a person is prosecuted has affected other network users who have had the opportunity to view it. In contrast to the cited study, in none of the analyzed sentences did the courts paid attention to the number of friends or subscribers in a particular social network, nor did they distinguish between whether it was their own post or a repost of another post.
However, the potential impact of a statement made online to a small number of readers is different from the impact of a statement posted on mainstream or frequently visited web pages.
At the same time, experts drew attention to the aspect of ambiguity in the application of certain rules of criminal law. Thus, Articles 109 and 110 of the Criminal Code contain such an aggravating circumstance as the use of mass media, which increases the potential punishment for spreading calls for violent change or overthrow of the constitutional order or changes in the borders of Ukraine.
Some courts have argued that such media is an “audiovisual (electronic) media - the World Wide Web. Experts consider the decision of the Khmelnytsky City District Court, in which a citizen was prosecuted for two Facebook posts under Articles 109 and 110 of the Criminal Code, to be a clear example of the heterogeneity of interpretation of this circumstance. With regard to Article 109, his actions were qualified taking into account the aggravating circumstance, and not it was the case for the Article 110.
Despite the fact that a plea agreement was approved in the case, and therefore the qualification had no actual effect on the convict, such an interpretation is potentially dangerous. It is worth recalling that the Internet is only a platform through which individuals exercise their right to freedom of expression, and so the dissemination of certain opinions only through it can not be grounds for tougher measures of responsibility, the report said.
We will remind that offenses in the sphere of the Internet are regulated by such articles of the Criminal code of Ukraine:
-Art. 109 (public appeals to forcible change or overthrow of the constitutional order or to seize state power - up to 3 years of imprisonment and in the case of the use of the media - up to 5 years);
-Art. 110 (public appeals or distribution of materials with appeals to change the borders of the territory or state border of Ukraine and violation of the order established by the Constitution of Ukraine - up to 5 years of imprisonment, and if they led to death or other serious consequences - up to life imprisonment);
-Art. 161 (intentional actions aimed at inciting national, racial or religious hatred and animosity, humiliation of national honor and dignity, insulting the feelings of citizens in connection with their religious beliefs - up to 3 years in prison, and if they are combined with violence - up to 5 years, if led to serious consequences - up to 8 years);
-Art. 258-2 (public calls to commit a terrorist act - up to 3 years in prison, and in the case of the use of the media - up to 5 years);
-Art. 295 (public appeals to pogroms, arson, destruction of property, seizure of buildings or structures, forced eviction of citizens threatening public order - up to 3 years in prison);
-Art. 436 (public appeals to aggressive war or to resolve a military conflict - up to 3 years in prison);
-Art. 436-1 (public use of the symbols of the communist, National Socialist (Nazi) totalitarian regimes - up to 5 years in prison, and in the case of the use of the media - up to 10 years in prison);
-Art. 442 (public calls for genocide - up to 5 years in prison).
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