CEDH · CASELAW;CLIN;ENG — 19 janvier 2023

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Ukraine - 74663/17 Judgment 19.1.2023 [Section V] Article 1 of Protocol No. 1 Positive obligations Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Flagrant and serious deficiencies of criminal investigation into breach of copyright by making available applicant’s book for payable online download without consent and no civil remedy: violation Facts – The applicant is the author of a book, a copy of which was made available for download against payment on an internet website without her consent. The website was registered with a company in the United States of America and hosted by a provider company in the UK.   Payments were made to a Ukrainian bank card and activated by way of a text message sent to a Ukrainian number. In 2013, the applicant lodged a formal complaint with the police seeking the institution of criminal proceedings for intentional breach of copyright. The investigation is still currently pending. Law – Article 35 § 3 (b): The applicant was an author of a specialist work which might not have attracted wide commercial success even in the absence of an opportunity to download it illegally. However, the very core of her complaint went to the authorities’ alleged failure, due to the flaws in the investigation, to allow her even to establish the extent of damage she had suffered. In such circumstances, it would not be appropriate to reject the applicant’s complaint for lack of a significant disadvantage. Article 1 of Protocol No.1: The Court recalled that when a private individual perpetrated an interference with the right to peaceful enjoyment of possessions that was criminal in nature, an obligation arose for the authorities to conduct an effective criminal investigation and, if appropriate, prosecution.   However, the obligation to investigate was less exacting with regard to less serious crimes, such as those involving property. Therefore,   in such cases the State would only fail to fulfil its positive obligation in that respect where flagrant and serious deficiencies in the criminal investigation or prosecution could be identified ( Blumberga v. Latvia ). While those principles had been previously applied in cases concerning burglary, financial offences and arson, the Court considered that they applied, mutatis mutandis , to encroachments by private individuals on intellectual property rights, as had occurred in the present case, where such an encroachment prima facie constituted a criminal offence and any separate civil remedy would not be effective. The Government had not claimed that the domestic legal system ensured the requisite protection of the applicant’s property rights through providing the general possibility for her to bring a civil action or use other remedies outside of the domain of criminal law. Nor had they argued that she had had any such remedies under Ukrainian law against any of the persons involved whose identity was known (such as the provider company), or that a civil claim or other non-criminal remedy could have been lodged in another jurisdiction (in the USA or in the UK). The persons directly responsible for copyright infringement had used Ukrainian banking and telecommunication services providers that were fully within the jurisdiction of the Ukrainian authorities. The most direct means of identifying those persons had been to request information from those providers and the only identifiable way of requesting information from them was through a criminal investigation. The Court accepted the applicant’s position that where the State had made the choice to criminalise certain serious cases of copyright infringement, the identity of the party (or parties) that infringed copyright could in practice only be established through the use of the investigative powers of the State. In this connection, the domestic law allowed a civil claim to be lodged within the framework of criminal proceedings only after a suspect or accused had been identified. There also had been no possibility for the applicant to obtain compensation on the basis of Article 1177 of the Civil Code as the implementing legislation had not yet been adopted. It followed that although copyright disputes were in general of civil law nature, in the specific circumstances of the present case, which concerned an alleged criminal offence, the respondent State had been under a positive duty under Article 1 of Protocol No. 1 to conduct an effective criminal investigation. In this regard the criminal investigation had been characterised by a number of flaws: - There had been specific investigative steps available to the authorities and identified by the applicant which had been likely to allow the authorities to identify the parties involved. This concerned, most importantly, identification of the holder of the bank card allegedly used to collect payment for illegal downloads. - There was no indication that taking those steps would have imposed a disproportionate burden on the authorities, such as complex investigative actions abroad, even taking into account the relatively limited gravity of the alleged offence against the applicant’s intellectual property. - The authorities had consistently and repeatedly failed, over a long period of time and without any coherent explanation, to take those steps which had also been acknowledged by the domestic courts. - The applicant had had no practical opportunity to supplement the authorities’ investigation through her own actions, such as applying for a disclosure order herself, in part because of the authorities’ own conduct. The cumulative result of the flagrant and serious deficiencies that had characterised the criminal investigation was that the State had failed to fulfil its positive obligations in respect of the applicant’s property. Conclusion: violation (unanimously). Article 41: EUR 750 awarded to the applicant in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed. (See also Blumberga v. Latvia, 70930/01, 14 October 2008, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .