Here’s what to expect from France’s case against Telegram and Pavel Durov

Earlier this week, the French authorities indicted Pavel Durov on a series of charges ranging from complicity in the organized distribution of child pornography to providing unlicensed cryptology services. Despite the statement from prosecutors, much about the Telegram founder’s case remains unknown to the public. For a better understanding of the French justice system, what likely awaits Durov in Paris, and presumably why the authorities are pursuing this course of action, Meduza spoke to Dmitry Litvinsky, a member of the Paris Bar Association and a lawyer specializing in international law.

What’s the maximum prison sentence Pavel Durov could face?

If Durov were convicted in a single case of the litany of crimes listed in his indictment, the punishments for the various offenses would not accumulate — the longest prison sentence would absorb the lesser punishments. The most serious crimes named in Durov’s indictment are punishable by up to 10 years.

Among Durov’s charges is a crime described in Article 323-3-2 of the French Penal Code, which entered force only earlier this year in conjunction with the E.U.’s Digital Services Act. France’s Article 323-3-2 makes it punishable by up to 10 years in prison with a maximum fine of half a million euros ($555,400) to knowingly allow the distribution of illegal content or the provision of illegal services, or facilitate their payment directly or through intermediaries.

However, even a 10-year prison sentence wouldn’t necessarily mean that Pavel Durov must spend a decade behind bars. Dmitry Litvinsky explained to Meduza that French courts often convert the backend years of prison sentences to parole. He suspects that prosecutors included so many alleged felonies in their indictment because they wanted to signal to the judge the seriousness of their investigation and “to maintain some flexibility later on” (meaning that some of these charges could be dropped from Durov’s final indictment).

“Unlicensed cryptology services”

Pavel Durov’s charges include the unlicensed provision of cryptology services “aimed at ensuring confidentiality” and the unlicensed provision and importation of a cryptology tool “that does not exclusively perform authentication or integrity control functions.” 

French regulations don’t restrict cryptographic tools designed solely for authentication functions (like two-factor authentication) or integrity control (such as hashing or digital signatures), but suppliers of other tools (including cryptographic services aimed at ensuring confidentiality, like Telegram’s secret chats) must provide the government with a description of their product’s technical characteristics, as well as the source code of the software used. 

The maximum penalty for failing to submit the mandatory declaration when providing this latter category of cryptographic tools is two years of imprisonment and a fine of 30,000 euros ($32,000).

How long might Durov be forced to remain in France and check in regularly with the police?

There’s little to stop Pavel Durov from leaving France, though the Telegram founder would invite additional (and separate) felony prosecution (and lose the 5 million euros he put up as bail) if he fled the country. Dmitry Litvinsky points out that customs control in many E.U. nations operates with such bureaucratic delays that the system might flag some suspects in Durov’s situation only after they’d left the Schengen Area.

While it might be more difficult for a famous person like Pavel Durov to slip out unnoticed, Litvinsky thinks there’s a good chance that defense attorneys or even state prosecutors will soon request a review of the pretrial measures imposed this week. “I think the travel ban from France is, to some extent, a transitional measure necessary for the French justice system to save face,” Litvinsky told Meduza. “If everything goes well for Durov, this measure will likely be lifted.”

France’s investigation could last years, though any talk of a timeline now is essentially guesswork. If Durov were released from the restrictions keeping him in France, he would be free to leave the country and required to reappear in court only when the investigation is done. Any trial would take at least six months, and France customarily schedules court hearings for quite distant dates, says Litvinsky.

France’s game plan

Durov is a naturalized French citizen, which makes it simpler to prosecute him in France. Prosecutors also argue that some of Telegram’s criminal communications could have occurred on French territory, further strengthening their jurisdiction. 

At the same time, it will be enormously difficult to prove in court that Pavel Durov, as the owner of Telegram, knowingly committed the crimes listed in his indictment. “The current claims directed at Durov are more appropriately aimed at the company’s director who manages the platform (that is, at the person responsible for Telegram’s technical aspects),” Dmitry Litvinsky told Meduza. Litvinsky thinks even French investigators must realize how hopeless their case is.

But Telegram’s “near-total absence” of replies to requests for cooperation from state prosecutors apparently forced the authorities’ hand, and Durov “may have become a victim of his own disregard for the French judicial system,” says Litvinsky. In other words, faced with Telegram’s refusal to communicate with the French government, the National Office of Minors followed standard procedures and initiated a process that led to an arrest warrant for the head of Telegram. Durov’s unexpected arrival in Paris legally triggered his detention and arraignment, and the French authorities have been trying to manage the case’s public fallout ever since, Litvinsky told Meduza.

Allegations of political persecution

Dmitry Litvinsky told Meduza that he doesn’t believe the French authorities have committed any legal violations in their handling of Durov, at least not based on the information released to the public. Anyone suspected of criminal activity is subject to arrest, legal detention, and a pretrial investigation period. “This is one of [France’s] legal (and, to some extent, even democratic) mechanisms,” explains Litvinsky. If the charges against Durov are dropped or he is exonerated, he’ll get his bail money back, too.

Meduza also spoke to leading human rights lawyer Karinna Moskalenko (who won the first-ever case against the Russian Federation heard in public hearings of the European Court of Human Rights). She argued that there’s still too little information available to judge if the case against Durov constitutes political repression, but she said that only courts in an independent judiciary can evaluate whether the authorities’ police actions are proportional to the public interest. In the case against Telegram, she suspects that prosecutors’ current secrecy will stand up to legal scrutiny: “I think it won’t be difficult for the authorities to prove this [the justification for keeping information confidential] because when it comes to fighting crime, excessive transparency can provide criminals with information that they could use to obstruct justice.”