The CDPC is convinced that with these amendments the federal
clause in this Convention accommodates the internal difficulties federal States
may face as a result of their characteristic distribution of powers between
central and regional authorities, while not unduly impairing the principle of
parity of treaty obligations. Three delegations (France, Andorra and Greece),
however, maintained their objections against the federal clause; as concerns
France, as a matter of legal principle and because it would create a precedent
in international conventions on criminal law. The U.S. delegation reiterated its
position that the absence of a federal clause would raise significant and
fundamental legal and policy concerns creating obstacles to the United States
becoming a Party to the Convention.
At this point, the decision about the inclusion of the
federal clause is no longer a purely technical issue, to be decided by the legal
experts. The matter will therefore have to be decided by the Committee of
Ministers. As this Convention is a legal instrument negotiated by sovereign
States, the observer States represented in the CDPC declared that they wished to
be represented at the meeting of the Committee of Ministers that adopts the
Convention.
DRAFT CONVENTION ON CYBER-CRIME
Preamble
The member States of the Council of Europe and the other
States signatory hereto,
Considering that the aim of the Council of Europe is to
achieve a greater unity between its members;
Recognising the value of fostering co-operation with the
other States signatories to this Convention;
Convinced of the need to pursue, as a matter of priority, a
common criminal policy aimed at the protection of society against cyber-crime,
inter alia by adopting appropriate legislation and fostering international
co-operation;
Conscious of the profound changes brought about by the
digitalisation, convergence and continuing globalisation of computer networks;
Concerned at the risk that computer networks and electronic
information may also be used for committing criminal offences and that evidence
relating to such offences may be stored and transferred by these networks;
Recognising the need for co-operation between States and
private industry in combating cyber-crime and the need to protect legitimate
interests in the use and development of information technologies;
Believing that an effective fight against cyber-crime
requires increased, rapid and well-functioning international co-operation in
criminal matters;
Convinced that the present Convention is necessary to deter
actions directed against the confidentiality, integrity and availability of
computer systems, networks and computer data, as well as the misuse of such
systems, networks and data, by providing for the criminalisation of such conduct,
as described in this Convention, and the adoption of powers sufficient for
effectively combating such criminal offences, by facilitating the detection,
investigation and prosecution of such criminal offences at both the domestic and
international level, and by providing arrangements for fast and reliable
international co-operation;
Mindful of the need to ensure a proper balance between the
interests of law enforcement and respect for fundamental human rights, as
enshrined in the 1950 Council of Europe Convention for the Protection of Human
Rights and Fundamental Freedoms, the 1966 United Nations International Covenant
on Civil and Political Rights, as well as other applicable international human
rights treaties, which reaffirm the right of everyone to hold opinions without
interference, as well as the right to freedom of expression, including the
freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, and the rights concerning the respect for privacy;
Mindful also of the protection of personal data, as conferred
e.g. by the 1981 Council of Europe Convention for the Protection of Individuals
with Regard to Automatic Processing of Personal Data;
Considering the 1989 United Nations Convention on the Rights
of the Child and the 1999 International Labour Organization Worst Forms of Child
Labour Convention;
Taking into account the existing Council of Europe
conventions on co-operation in the penal field as well as similar treaties which
exist between Council of Europe member States and other States and stressing
that the present Convention is intended to supplement those conventions in order
to make criminal investigations and proceedings concerning criminal offences
related to computer systems and data more effective and to enable the collection
of electronic evidence of a criminal offence;
Welcoming recent developments which further advance
international understanding and co-operation in combating cyber-crimes,
including actions of the United Nations, the OECD, the European Union and the
G8;
Recalling Recommendation N° R (85) 10 concerning the
practical application of the European Convention on Mutual Assistance in
Criminal Matters in respect of letters rogatory for the interception of
telecommunications, Recommendation N° R (88) 2 on piracy in the field of
copyright and neighbouring rights, Recommendation N° R (87) 15 regulating the
use of personal data in the police sector, Recommendation N° R (95) 4 on the
protection of personal data in the area of telecommunication services, with
particular reference to telephone services as well as Recommendation N° R (89)
9 on computer-related crime providing guidelines for national legislatures
concerning the definition of certain computer crimes and Recommendation N° R
(95) 13 concerning problems of criminal procedural law connected with
Information Technology;
Having regard to Resolution No. 1 adopted by the European
Ministers of Justice at their 21st Conference (Prague, June 1997), which
recommended the Committee of Ministers to support the work carried out by the
European Committee on Crime Problems (CDPC) on cyber-crime in order to bring
domestic criminal law provisions closer to each other and enable the use of
effective means of investigation concerning such offences, as well as to
Resolution N° 3 adopted at the 23rd Conference of the European Ministers of
Justice (London, June 2000), which encouraged the negotiating parties to pursue
their efforts with a view to finding appropriate solutions so as to enable the
largest possible number of States to become parties to the Convention and
acknowledged the need for a swift and efficient system of international
co-operation, which duly takes into account the specific requirements of the
fight against cyber-crime;
Having also regard to the Action Plan adopted by the Heads of
State and Government of the Council of Europe, on the occasion of their Second
Summit (Strasbourg, 10 - 11 October 1997), to seek common responses to the
development of the new information technologies, based on the standards and
values of the Council of Europe;
Have agreed as follows:
Chapter I - Use of terms
Article 1 - Definitions
For the purposes of this Convention:
a. "computer system" means
any device or a group of inter-connected or related devices, one or more of
which, pursuant to a program, performs automatic processing of data;
b. "computer data" means any
representation of facts, information or concepts in a form suitable for
processing in a computer system, including a program suitable to cause a
computer system to perform a function;
c. "service provider" means:
i. any public or private entity that
provides to users of its service the ability to communicate by means of a
computer system, and
ii. any other entity that processes
or stores computer data on behalf of such communication service or users of such
service.
d. "traffic data" means any
computer data relating to a communication by means of a computer system,
generated by a computer system that formed a part in the chain of communication,
indicating the communication's origin, destination, route, time, date, size,
duration, or type of underlying service.
Chapter II - Measures to be taken at the national level
Section 1 - Substantive criminal law
Title 1 - Offences against the confidentiality, integrity
and availability of
computer data and systems
Article 2 - Illegal access
Each Party shall adopt such legislative and other measures as
may be necessary to establish as criminal offences under its domestic law, when
committed intentionally, the access to the whole or any part of a computer
system without right. A Party may require that the offence be committed by
infringing security measures, with the intent of obtaining computer data or
other dishonest intent, or in relation to a computer system that is connected to
another computer system.
Article 3 - Illegal interception
Each Party shall adopt such legislative and other measures as
may be necessary to establish as criminal offences under its domestic law, when
committed intentionally, the interception without right, made by technical means,
of non-public transmissions of computer data to, from or within a computer
system, including electromagnetic emissions from a computer system carrying such
computer data. A Party may require that the offence be committed with dishonest
intent, or in relation to a computer system that is connected to another
computer system.
Article 4 - Data interference
1. Each Party shall adopt such legislative and other measures
as may be necessary to establish as criminal offences under its domestic law,
when committed intentionally, the damaging, deletion, deterioration, alteration
or suppression of computer data without right.
2. A Party may reserve the right to require that the conduct
described in paragraph 1 result in serious harm.
Article 5 - System interference
Each Party shall adopt such legislative and other measures as
may be necessary to establish as criminal offences under its domestic law, when
committed intentionally, the serious hindering without right of the functioning
of a computer system by inputting, transmitting, damaging, deleting,
deteriorating, altering or suppressing computer data.
Article 6 - Misuse of devices
1. Each Party shall adopt such legislative and other measures
as may be necessary to establish as criminal offences under its domestic law,
when committed intentionally and without right:
a. the production, sale, procurement for use, import,
distribution or otherwise making available of:
1. a device, including a computer program, designed or
adapted primarily for the purpose of committing any of the offences established
in accordance with Article 2 - 5;
2. a computer password, access code, or similar data
by which the whole or any part of a computer system is capable of being accessed
with intent that it be used for the purpose of committing any of the offences
established in Articles 2 - 5; and
b. the possession of an item referred to in
paragraphs (a)(1) or (2) above, with intent that it be used for the purpose of
committing any of the offences established in Articles 2 - 5. A Party may
require by law that a number of such items be possessed before criminal
liability attaches.
2. This article shall not be interpreted as imposing criminal
liability where the production, sale, procurement for use, import, distribution
or otherwise making available or possession referred to in paragraph 1 of this
Article is not for the purpose of committing an offence established in
accordance with articles 2 through 5 of this Convention, such as for the
authorised testing or protection of a computer system.
3. Each Party may reserve the right not to apply paragraph 1
of this Article, provided that the reservation does not concern the sale,
distribution or otherwise making available of the items referred to in paragraph
1 (a) (2).
Title 2 - Computer-related offences
Article 7 - Computer-related forgery
Each Party shall adopt such legislative and other measures as
may be necessary to establish as criminal offences under its domestic law, when
committed intentionally and without right, the input, alteration, deletion, or
suppression of computer data, resulting in inauthentic data with the intent that
it be considered or acted upon for legal purposes as if it were authentic,
regardless whether or not the data is directly readable and intelligible. A
Party may require an intent to defraud, or similar dishonest intent, before
criminal liability attaches.
Article 8 - Computer-related fraud
Each Party shall adopt such legislative and other measures as
may be necessary to establish as criminal offences under its domestic law, when
committed intentionally and without right, the causing of a loss of property to
another by:
a. any input, alteration, deletion or suppression of
computer data,
b. any interference with the functioning of a
computer system,
with fraudulent or dishonest intent of procuring, without
right, an economic benefit for oneself or for another.
Title 3 - Content-related offences
Article 9 - Offences related to child pornography
1. Each Party shall adopt such legislative and other measures
as may be necessary to establish as criminal offences under its domestic law,
when committed intentionally and without right, the following conduct:
a. producing child pornography for
the purpose of its distribution through a computer system;
b. offering or making available child
pornography through a computer system;
c. distributing or transmitting child
pornography through a computer system;
d. procuring child pornography
through a computer system for oneself or for another;
e. possessing child pornography in a
computer system or on a computer-data storage medium.
2. For the purpose of paragraph 1 above "child
pornography" shall include pornographic material that visually depicts:
a. a minor engaged in sexually
explicit conduct;
b. a person appearing to be a minor
engaged in sexually explicit conduct;
c. realistic images representing a
minor engaged in sexually explicit conduct.
3. For the purpose of paragraph 2 above, the term
"minor" shall include all persons under 18 years of age. A Party may,
however, require a lower age-limit, which shall be not less than 16 years.
4. Each Party may reserve the right not to apply, in whole or
in part, paragraph 1(d) and 1(e), and 2(b) and 2(c).
Title 4 - Offences related to infringements of copyright
and related rights
Article 10 - Offences related to infringements of copyright
and related rights
1. Each Party shall adopt such legislative and other measures
as may be necessary to establish as criminal offences under its domestic law the
infringement of copyright, as defined under the law of that Party pursuant to
the obligations it has undertaken under the Paris Act of 24 July 1971 of the
Bern Convention for the Protection of Literary and Artistic Works, the Agreement
on Trade-Related Aspects of Intellectual Property Rights and the WIPO Copyright
Treaty, with the exception of any moral rights conferred by such Conventions,
where such acts are committed wilfully, on a commercial scale and by means of a
computer system.
2. Each Party shall adopt such legislative and other measures
as may be necessary to establish as criminal offences under its domestic law the
infringement of related rights, as defined under the law of that Party, pursuant
to the obligations it has undertaken under the International Convention for the
Protection of Performers, Producers of Phonograms and Broadcasting Organisations
done in Rome (Rome Convention), the Agreement on Trade-Related Aspects of
Intellectual Property Rights and the WIPO Performances and Phonograms Treaty,
with the exception of any moral rights conferred by such Conventions, where such
acts are committed wilfully, on a commercial scale and by means of a computer
system.
3. A Party may reserve the right not to impose criminal
liability under paragraphs 1 and 2 of this article in limited circumstances,
provided that other effective remedies are available and that such reservation
does not derogate from the Party's international obligations set forth in the
international instruments referred to in paragraphs 1 and 2 of this article.
Title 5 - Ancillary liability and sanctions
Article 11 - Attempt and aiding or abetting
1. Each Party shall adopt such legislative and other measures
as may be necessary to establish as criminal offences under its domestic law,
when committed intentionally, aiding or abetting the commission of any of the
offences established in accordance with Articles 2 - 10 of the present
Convention with intent that such offence be committed.
2. Each Party shall adopt such legislative and other measures
as may be necessary to establish as criminal offences under its domestic law,
when committed intentionally, an attempt to commit any of the offences
established in accordance with Articles 3 through 5, 7, 8, 9 (1) a and 9 (1) c
of this Convention.
3. Each State may reserve the right not to apply, in whole or
in part, paragraph 2 of this article.
Article 12 - Corporate liability
1. Each Party shall adopt such legislative and other measures
as may be necessary to ensure that a legal person can be held liable for a
criminal offence established in accordance with this Convention, committed for
its benefit by any natural person, acting either individually or as part of an
organ of the legal person, who has a leading position within the legal person,
based on:
a. a power of representation of the
legal person;
b. an authority to take decisions on
behalf of the legal person;
c. an authority to exercise control
within the legal person.
2. Apart from the cases already provided for in paragraph 1,
each Party shall take the measures necessary to ensure that a legal person can
be held liable where the lack of supervision or control by a natural person
referred to in paragraph 1 has made possible the commission of a criminal
offence established in accordance with this Convention for the benefit of that
legal person by a natural person acting under its authority.
3. Subject to the legal principles of the Party, the
liability of a legal person may be criminal, civil or administrative.
4. Such liability shall be without prejudice to the criminal
liability of the natural persons who have committed the offence.
Article 13 - Sanctions and measures
1. Each Party shall adopt such legislative and other measures
as may be necessary to ensure that the criminal offences established in
accordance with Articles 2 - 11 are punishable by effective, proportionate and
dissuasive sanctions, which include deprivation of liberty.
2. Each Party shall ensure that legal persons held liable in
accordance with Article 12 shall be subject to effective, proportionate and
dissuasive criminal or non-criminal sanctions or measures, including monetary
sanctions.
Section 2 - Procedural law
Title 1 - Common provisions
Article 14 - Scope of procedural provisions
1. Each Party shall adopt such legislative and other measures
as may be necessary to establish the powers and procedures provided for in this
Section for the purpose of specific criminal investigations or proceedings.
2. Except as specifically otherwise provided in Article 21,
each Party shall apply the powers and procedures referred to in paragraph 1 to:
a. the criminal offences established
in accordance with articles 2-11 of this Convention;
b. other criminal offences committed
by means of a computer system; and
c. the collection of evidence in
electronic form of a criminal offence.
3. a. Each
Party may reserve the right to apply the measures referred to in Article 20 only
to offences or categories of offences specified in the reservation, provided
that the range of such offences or categories of offences is not more restricted
than the range of offences to which it applies the measures referred to in
Article 21. Each Party shall consider restricting such a reservation to enable
the broadest application of the measure referred to in Article 20.
b. Where
a Party, due to limitations in its legislation in force at the time of the
adoption of the present Convention, is not able to apply the measures referred
to in Articles 20 and 21 to communications being transmitted within a computer
system of a service provider, which system
i. is being operated for the benefit
of a closed group of users, and
ii. does not employ public
communications networks and is not connected with another computer system,
whether public or private,
that Party may reserve the right not to apply these measures
to such communications. Each Party shall consider restricting such a reservation
to enable the broadest application of the measures referred to in Articles 20
and 21.
Article 15 - Conditions and safeguards
1. Each Party shall ensure that the establishment,
implementation and application of the powers and procedures provided for in this
Section are subject to conditions and safeguards provided for under its domestic
law, which shall provide for the adequate protection of human rights and
liberties, including rights arising pursuant to obligations it has undertaken
under the 1950 Council of Europe Convention for the Protection of Human Rights
and Fundamental Freedoms, the 1966 United Nations International Covenant on
Civil and Political Rights, and other applicable international human rights
instruments, and which shall incorporate the principle of proportionality.
2. Such conditions and safeguards shall, as appropriate in
view of the nature of the power or procedure concerned, inter alia, include
judicial or other independent supervision, grounds justifying application, and
limitation on the scope and the duration of such power or procedure.
3. To the extent that it is consistent with the public
interest, in particular the sound administration of justice, a Party shall
consider the impact of the powers and procedures in this Section upon the rights,
responsibilities and legitimate interests of third parties.
Title 2 - Expedited preservation of stored computer data
Article 16 - Expedited preservation of stored computer data
1. Each Party shall adopt such legislative and other measures
as may be necessary to enable its competent authorities to order or similarly
obtain the expeditious preservation of specified computer data, including
traffic data, that has been stored by means of a computer system, in particular
where there are grounds to believe that the computer data is particularly
vulnerable to loss or modification.
2. Where a Party gives effect to paragraph 1 above by means
of an order to a person to preserve specified stored computer data in the person's
possession or control, the Party shall adopt such legislative and other measures
as may be necessary to oblige that person to preserve and maintain the integrity
of that computer data for a period of time as long as necessary, up to a maximum
of 90 days, to enable the competent authorities to seek its disclosure. A Party
may provide for such an order to be subsequently renewed.
3. Each Party shall adopt such legislative or other measures
as may be necessary to oblige the custodian or other person who is to preserve
the computer data to keep confidential the undertaking of such procedures for
the period of time provided for by its domestic law.
4. The powers and procedures referred to in this article
shall be subject to Articles 14 and 15.
Article 17 - Expedited preservation and partial disclosure
of traffic data
1. Each Party shall adopt, in respect of traffic data that is
to be preserved under Article 16, such legislative and other measures as may be
necessary to:
a. ensure that such expeditious
preservation of traffic data is available regardless of whether one or more
service providers were involved in the transmission of that communication; and
b. ensure the expeditious disclosure
to the Party's competent authority, or a person designated by that authority,
of a sufficient amount of traffic data to enable the Party to identify the
service providers and the path through which the communication was transmitted.
3. The powers and procedures referred to in this article
shall be subject to Articles 14 and 15.
Title 3 - Production order
Article 18 - Production order
1. Each Party shall adopt such legislative and other measures
as may be necessary to empower its competent authorities to order:
a. a person in its territory to
submit specified computer data in that person's possession or control, which
is stored in a computer system or a computer-data storage medium; and
b. a service provider offering its
services in the territory of the Party to submit subscriber information relating
to such services in that service provider's possession or control;
2. The powers and procedures referred to in this article
shall be subject to Articles 14 and 15.
3. For the purpose of this article, "subscriber
information" means any information, contained in the form of computer data
or any other form, that is held by a service provider, relating to subscribers
of its services, other than traffic or content data, by which can be established:
a. the type of the communication
service used, the technical provisions taken thereto and the period of service;
b. the subscriber's identity,
postal or geographic address, telephone and other access number, billing and
payment information, available on the basis of the service agreement or
arrangement;
c. any other information on the site
of the installation of communication equipment available on the basis of the
service agreement or arrangement.
Title 4 - Search and seizure of stored computer data
Article 19 - Search and seizure of stored computer data
1. Each Party shall adopt such legislative and other measures
as may be necessary to empower its competent authorities to search or similarly
access:
a. a computer system or part of it
and computer data stored therein; and
b. computer-data storage medium in
which computer data may be stored,
in its territory.
2. Each Party shall adopt such legislative and other measures
as may be necessary to ensure that where its authorities search or similarly
access a specific computer system or part of it, pursuant to paragraph 1 (a),
and have grounds to believe that the data sought is stored in another computer
system or part of it in its territory, and such data is lawfully accessible from
or available to the initial system, such authorities shall be able to
expeditiously extend the search or similar accessing to the other system.
3. Each Party shall adopt such legislative and other measures
as may be necessary to empower its competent authorities to seize or similarly
secure computer data accessed according to paragraphs 1 or
2. These measures shall include the power to :
a. seize or similarly secure a
computer system or part of it or a computer-data storage medium;
b. make and retain a copy of those
computer data;
c. maintain the integrity of the
relevant stored computer data; and
c. render inaccessible or remove
those computer data in the accessed computer system.
4. Each Party shall adopt such legislative and other measures
as may be necessary to empower its competent authorities to order any person who
has knowledge about the functioning of the computer system or measures applied
to protect the computer data therein to provide, as is reasonable, the necessary
information, to enable the undertaking of the measures referred to in paragraphs
1 and 2.
5. The powers and procedures referred to in this article
shall be subject to Articles 14 and 15.
Title 5 - Real-time collection of computer data
Article 20 - Real-time collection of traffic data
1. Each Party shall adopt such legislative and other measures
as may be necessary to empower its competent authorities to:
a. collect or record through
application of technical means on the territory of that Party, and
b. compel a service provider, within
its existing technical capability, to:
i. collect or record through application of technical means
on the territory of that Party, or
ii. co-operate and assist the competent authorities in the
collection or recording of,
traffic data, in real-time, associated with specified
communications in its territory transmitted by means of a computer system.
2. Where a Party, due to the established principles of its
domestic legal system, cannot adopt the measures referred to in paragraph 1 (a),
it may instead adopt legislative and other measures as may be necessary to
ensure the real-time collection or recording of traffic data associated with
specified communications in its territory through application of technical means
on that territory.
3. Each Party shall adopt such legislative and other measures
as may be necessary to oblige a service provider to keep confidential the fact
of and any information about the execution of any power provided for in this
Article.
4. The powers and procedures referred to in this article
shall be subject to Articles 14 and 15.
Article 21 - Interception of content data
1. Each Party shall adopt such legislative and other measures
as may be necessary, in relation to a range of serious offences to be determined
by domestic law, to empower its competent authorities to:
a. collect or record through
application of technical means on the territory of that Party, and
b. compel a service provider, within
its existing technical capability, to:
i. collect or record through
application of technical means on the territory of that Party, or
ii. co-operate and assist the
competent authorities in the collection or recording of,
content data, in real-time, of specified communications in
its territory transmitted by means of a computer system.
2. Where a Party, due to the established principles of its
domestic legal system, cannot adopt the measures referred to in paragraph 1 (a),
it may instead adopt legislative and other measures as may be necessary to
ensure the real-time collection or recording of content data of specified
communications in its territory through application of technical means on that
territory.
3. Each Party shall adopt such legislative and other measures
as may be necessary to oblige a service provider to keep confidential the fact
of and any information about the execution of any power provided for in this
Article.
4. The powers and procedures referred to in this article
shall be subject to Articles 14 and 15.
Section 3 - Jurisdiction
Article 22 - Jurisdiction
1. Each Party shall adopt such legislative and other measures
as may be necessary to establish jurisdiction over any offence established in
accordance with Articles 2 - 11 of this Convention, when the offence is
committed :
a. in its territory; or
b. on board a ship flying the flag of
that Party; or
c. on board an aircraft registered
under the laws of that Party; or
d. by one of its nationals, if the
offence is punishable under criminal law where it was committed or if the
offence is committed outside the territorial jurisdiction of any State.
2. Each State may reserve the right not to apply or to apply
only in specific cases or conditions the jurisdiction rules laid down in
paragraphs (1) b - (1) d of this article or any part thereof.
3. Each Party shall adopt such measures as may be necessary
to establish jurisdiction over the offences referred to in Article 24, paragraph
(1) of this Convention, in cases where an alleged offender is present in its
territory and it does not extradite him/her to another Party, solely on the
basis of his/her nationality, after a request for extradition.
4. This Convention does not exclude any criminal jurisdiction
exercised in accordance with domestic law.
5. When more than one Party claims jurisdiction over an
alleged offence established in accordance with this Convention, the Parties
involved shall, where appropriate, consult with a view to determining the most
appropriate jurisdiction for prosecution.
Chapter III - International co-operation
Section 1 - General principles
Title 1 - General principles relating to international
co-operation
Article 23 - General principles relating to international
co-operation
The Parties shall co-operate with each other, in accordance
with the provisions of this chapter, and through application of relevant
international instruments on international co-operation in criminal matters,
arrangements agreed on the basis of uniform or reciprocal legislation, and
domestic laws, to the widest extent possible for the purposes of investigations
or proceedings concerning criminal offences related to computer systems and
data, or for the collection of evidence in electronic form of a criminal offence.
Title 2 - Principles relating to extradition
Article 24 - Extradition
1. a. This article applies
to extradition between Parties for the criminal offences established in
accordance with Articles 2 - 11 of this Convention, provided that they are
punishable under the laws of both Parties concerned by deprivation of liberty
for a maximum period of at least one year, or by a more severe penalty.
b.
Where a different minimum penalty is to be applied under an arrangement agreed
on the basis of uniform or reciprocal legislation or an extradition treaty,
including the European Convention on Extradition (ETS No. 24), applicable
between two or more parties, the minimum penalty provided for under such
arrangement or treaty shall apply.
2. The criminal offences described in paragraph 1 of this
Article shall be deemed to be included as extraditable offences in any
extradition treaty existing between or among the Parties. The Parties undertake
to include such offences as extraditable offences in any extradition treaty to
be concluded between or among them.
3. If a Party that makes extradition conditional on the
existence of a treaty receives a request for extradition from another Party with
which it does not have an extradition treaty, it may consider this Convention as
the legal basis for extradition with respect to any criminal offence referred to
in paragraph 1 of this article.
4. Parties that do not make extradition conditional on the
existence of a treaty shall recognise the criminal offences referred to in
paragraph 1 of this article as extraditable offences between themselves.
5. Extradition shall be subject to the conditions provided
for by the law of the requested Party or by applicable extradition treaties,
including the grounds on which the requested Party may refuse extradition.
6. If extradition for a criminal offence referred to in
paragraph 1 of this article is refused solely on the basis of the nationality of
the person sought, or because the requested Party deems that it has jurisdiction
over the offence, the requested Party shall submit the case at the request of
the requesting Party to its competent authorities for the purpose of prosecution
and shall report the final outcome to the requesting Party in due course. Those
authorities shall take their decision and conduct their investigations and
proceedings in the same manner as in the case of any other offence of a
comparable nature under the law of that Party.
7. a. Each Party shall, at
the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, communicate to the Secretary General of the
Council of Europe the name and addresses of each authority responsible for the
making to or receipt of a request for extradition or provisional arrest in the
absence of a treaty.
b. The
Secretary General of the Council of Europe shall set up and keep updated a
register of authorities so designated by the Parties. Each Party shall ensure
that the details held on the register are correct at all times.
Title 3 - General principles relating to mutual assistance
Article 25 - General principles relating to mutual
assistance
1. The Parties shall afford one another mutual assistance to
the widest extent possible for the purpose of investigations or proceedings
concerning criminal offences related to computer systems and data, or for the
collection of evidence in electronic form of a criminal offence.
2. Each Party shall also adopt such legislative and other
measures as may be necessary to carry out the obligations set forth in Articles
27 - 35.
3. Each Party may, in urgent circumstances, make requests for
mutual assistance or communications related thereto by expedited means of
communications, including fax or e-mail, to the extent that such means provide
appropriate levels of security and authentication (including the use of
encryption, where necessary), with formal confirmation to follow, where required
by the requested Party. The requested Party shall accept and respond to the
request by any such expedited means of communication.
4. Except as otherwise specifically provided in Articles in
this Chapter, mutual assistance shall be subject to the conditions provided for
by the law of the requested Party or by applicable mutual assistance treaties,
including the grounds on which the requested Party may refuse co-operation. The
requested Party shall not exercise the right to refuse mutual assistance in
relation to the offences referred to in Articles 2 to 11 solely on the ground
that the request concerns an offence which it considers a fiscal offence.
5. Where, in accordance with the provisions of this chapter,
the requested Party is permitted to make mutual assistance conditional upon the
existence of dual criminality, that condition shall be deemed fulfilled,
irrespective of whether its laws place the offence within the same category of
offence or denominates the offence by the same terminology as the requesting
Party, if the conduct underlying the offence for which assistance is sought is a
criminal offence under its laws.
Article 26 - Spontaneous information
1. A Party may, within the limits of its domestic law,
without prior request, forward to another Party information obtained within the
framework of its own investigations when it considers that the disclosure of
such information might assist the receiving Party in initiating or carrying out
investigations or proceedings concerning criminal offences established in
accordance with this Convention or might lead to a request for co-operation by
that Party under this chapter.
2. Prior to providing such information, the providing Party
may request that it be kept confidential or used subject to conditions. If the
receiving Party cannot comply with such request, it shall notify the providing
Party, which shall then determine whether the information should nevertheless be
provided. If the receiving Party accepts the information subject to the
conditions, it shall be bound by them.
Title 4 - Procedures pertaining to mutual assistance
requests
in the absence of applicable international agreements
Article 27 - Procedures pertaining to mutual assistance
requests in the absence of applicable international agreements
1. Where there is no mutual assistance treaty or arrangement
on the basis of uniform or reciprocal legislation in force between the
requesting and requested Parties, the provisions of paragraphs 2 through 10 of
this article shall apply. The provisions of this article shall not apply where
such treaty, arrangement or legislation is available, unless the Parties
concerned agree to apply any or all of the remainder of this article in lieu
thereof.
2. a. Each Party shall
designate a central authority or authorities that shall be responsible for
sending and answering requests for mutual assistance, the execution of such
requests, or the transmission of them to the authorities competent for their
execution.
b.
The central authorities shall communicate directly with each other.
c. Each Party shall, at the time of signature or when
depositing its instrument of ratification, acceptance, approval or accession,
communicate to the Secretary General of the Council of Europe the names and
addresses of the authorities designated in pursuance of this paragraph.
d. The Secretary General of the Council of Europe shall set up
and keep updated a register of central authorities so designated by the Parties.
Each Party shall ensure that the details held on the register are correct at all
times.
3. Mutual assistance requests under this Article shall be
executed in accordance with the procedures specified by the requesting Party
except where incompatible with the law of the requested Party.
4. The requested Party may, in addition to grounds for
refusal available under Article 25, paragraph (4), refuse assistance if:
a. the request concerns an offence which the requested Party
considers a political offence or an offence connected with a political offence;
or
b. it considers that execution of the request is likely to
prejudice its sovereignty, security, ordre public or other essential interests.
5. The requested Party may postpone action on a request if
such action would prejudice criminal investigations or proceedings conducted by
its authorities.
6. Before refusing or postponing assistance, the requested
Party shall, where appropriate after having consulted with the requesting Party,
consider whether the request may be granted partially or subject to such
conditions as it deems necessary.
7. The requested Party shall promptly inform the requesting
Party of the outcome of the execution of a request for assistance. If the
request is refused or postponed, reasons shall be given for the refusal or
postponement. The requested Party shall also inform the requesting Party of any
reasons that render impossible the execution of the request or are likely to
delay it significantly.
8. The requesting Party may request that the requested Party
keep confidential the fact and substance of any request made under this Chapter
except to the extent necessary to execute the request. If the requested Party
cannot comply with the request for confidentiality, it shall promptly inform the
requesting Party, which shall then determine whether the request should
nevertheless be executed.
9. a. In the event of
urgency, requests for mutual assistance or communications related thereto may be
sent directly by judicial authorities of the requesting Party to such
authorities of the requested Party. In any such cases a copy shall be sent at
the same time to the central authority of the requested Party through the
central authority of the requesting Party.
b. Any
request or communication under this paragraph may be made through the
International Criminal Police Organisation (Interpol).
c.
Where a request is made pursuant to subparagraph (a) and the authority is not
competent to deal with the request, it shall refer the request to the competent
national authority and inform directly the requesting Party that it has done so.
d.
Requests or communications made under this paragraph that do not involve
coercive action may be directly transmitted by the competent authorities of the
requesting Party to the competent authorities of the requested Party.
e. Each
Party may, at the time of signature or when depositing its instrument of
ratification, acceptance, approval or accession inform the Secretary General of
the Council of Europe that, for reasons of efficiency, requests made under this
paragraph are to be addressed to its central authority.
Article 28 - Confidentiality and limitation on use
1. When there is no mutual assistance treaty or arrangement
on the basis of uniform or reciprocal legislation in force between the
requesting and the requested Parties, the provisions of this article shall apply.
The provisions of this article shall not apply where such treaty, arrangement or
legislation, is available unless the Parties concerned agree to apply any or all
of the remainder of this article in lieu thereof.
2. The requested Party may make the furnishing of information
or material in response to a request dependent on the condition that it is:
a. kept confidential where the request for mutual legal
assistance could not be complied with in the absence of such condition, or
b. not used for investigations or proceedings other than
those stated in the request.
3. If the requesting Party cannot comply with a condition
referred to in paragraph 2, it shall promptly inform the other Party, which
shall then determine whether the information is nevertheless provided. When the
requesting Party accepts the condition, it shall be bound by it.
4. Any Party that furnishes information or material subject
to a condition referred to in paragraph 2 may require the other Party to explain,
in relation to that condition, the use made of such information or material.
Section 2 - Specific provisions
Title 1 - Mutual assistance regarding provisional measures
Article 29 - Expedited preservation of stored computer data
1. A Party may request another Party to order or otherwise
obtain the expeditious preservation of data stored by means of a computer
system, which is located within the territory of that other Party and in respect
of which the requesting Party intends to submit a request for mutual assistance
for the search or similar access, seizure or similar securing, or disclosure of
the data.
2. A request for preservation made under paragraph 1 shall
specify:
a. the authority that is seeking the preservation;
b. the offence that is the subject of a criminal
investigation or proceeding and a brief summary of related facts;
c. the stored computer data to be preserved and its
relationship to the offence;
d. any available information to identify the custodian of the
stored computer data or the location of the computer system;
e. the necessity of the preservation; and
f. that the Party intends to submit a request for mutual
assistance for the search or similar access, seizure or similar securing, or
disclosure of the stored computer data.
3. Upon receiving the request from another Party, the
requested Party shall take all appropriate measures to preserve expeditiously
the specified data in accordance with its domestic law. For the purposes of
responding to a request, dual criminality shall not be required as a condition
to providing such preservation.
4. A Party that requires dual criminality as a condition for
responding to a request for mutual assistance for the search or similar access,
seizure or similar securing, or disclosure of the data may, in respect of
offences other than those established in accordance with Articles 2 - 11 of
this Convention, reserve the right to refuse the request for preservation under
this article in cases where it has reason to believe that at the time of
disclosure the condition of dual criminality cannot be fulfilled.
5. In addition, a request for preservation may only be
refused if :
a. the request concerns an offence which the requested Party
considers a political offence or an offence connected with a political offence;
or
b. the requested Party considers that execution of the
request is likely to prejudice its sovereignty, security, ordre public or other
essential interests.
6. Where the requested Party believes that preservation will
not ensure the future availability of the data or will threaten the
confidentiality of, or otherwise prejudice the requesting Party's
investigation, it shall promptly so inform the requesting Party, which shall
then determine whether the request should nevertheless be executed.
7. Any preservation effected in response to the request
referred to in paragraph 1 shall be for a period not less than 60 days in order
to enable the requesting Party to submit a request for the search or similar
access, seizure or similar securing, or disclosure of the data. Following the
receipt of such request, the data shall continue to be preserved pending a
decision on that request.
Article 30 - Expedited disclosure of preserved traffic data
1. Where, in the course of the execution of a request made
under Article 29 to preserve traffic data concerning a specific communication,
the requested Party discovers that a service provider in another State was
involved in the transmission of the communication, the requested Party shall
expeditiously disclose to the requesting Party a sufficient amount of traffic
data in order to identify that service provider and the path through which the
communication was transmitted.
2. Disclosure of traffic data under paragraph 1 may only be
withheld if :
a. the request concerns an offence which the requested Party
considers a political offence or an offence connected with a political offence;
or
b. the requested Party considers that execution of the
request is likely to prejudice its sovereignty, security, ordre public or other
essential interests.
Title 2 - Mutual assistance regarding investigative powers
Article 31 - Mutual assistance regarding accessing of
stored computer data
1. A Party may request another Party to search or similarly
access, seize or similarly secure, and disclose data stored by means of a
computer system located within the territory of the requested Party, including
data that has been preserved pursuant to Article 29.
2. The requested Party shall respond to the request through
application of international instruments, arrangements and laws referred to in
Article 23, and in accordance with other relevant provisions of this Chapter.
3. The request shall be responded to on an expedited basis
where:
a. there are grounds to believe that relevant data is
particularly vulnerable to loss or modification; or
b. the instruments, arrangements and laws referred to in
paragraph 2 otherwise provide for expedited co-operation.
Article 32 - Trans-border access to stored computer data
with consent or where publicly available
A Party may, without obtaining the authorisation of another Party:
a. access publicly available (open source) stored computer
data, regardless of where the data is located geographically; or
b. access or receive, through a computer system in its
territory, stored computer data located in another Party, if the Party obtains
the lawful and voluntary consent of the person who has the lawful authority
to disclose the data to the Party through that computer system.
Article 33 - Mutual assistance regarding the real-time
collection of traffic data
1. The Parties shall provide mutual assistance to each other
with respect to the real-time collection of traffic data associated with
specified communications in its territory transmitted by means of a computer
system. Subject to paragraph 2, assistance shall be governed by the
conditions and procedures provided for under domestic law.
2. Each Party shall provide such assistance at least with
respect to criminal offences for which real-time collection of traffic data
would be available in a similar domestic case.
Article 34 - Mutual assistance regarding the interception
of content data
The Parties shall provide mutual assistance to each other
with respect to the real-time collection or recording of content data of
specified communications transmitted by means of a computer system to the extent
permitted by their applicable treaties and domestic laws.
Title 3 - 24/7 Network
Article 35 - 24/7 Network
1. Each Party shall designate a point of contact available on
a 24 hour, 7 day per week basis in order to ensure the provision of immediate
assistance for the purpose of investigations or proceedings concerning criminal
offences related to computer systems and data, or for the collection of evidence
in electronic form of a criminal offence. Such assistance shall include
facilitating, or, if permitted by its domestic law and practice, directly
carrying out:
a. provision of technical advice;
b. preservation of data pursuant to Articles 29 and 30; and
c. collection of evidence, giving of legal information, and locating of
suspects.
2. a. A Party's point of
contact shall have the capacity to carry out communications with the point of
contact of another Party on an expedited basis.
b. If the point of
contact designated by a Party is not part of that Party's authority or
authorities responsible for international mutual assistance or extradition, the
point of contact shall ensure that it is able to co-ordinate with such authority
or authorities on an expedited basis.
3. Each Party shall ensure that trained and equipped
personnel are available in order to facilitate the operation of the network.
Chapter IV - Final provisions
Article 36 - Signature and entry into force
1. This Convention shall be open for signature by the member
States of the Council of Europe and by non-member States which have participated
in its elaboration.
2. This Convention is subject to ratification, acceptance or
approval. Instruments of ratification, acceptance or approval shall be deposited
with the Secretary General of the Council of Europe.
3. This Convention shall enter into force on the first day of
the month following the expiration of a period of three months after the date on
which five States, including at least three member States of the Council of
Europe, have expressed their consent to be bound by the Convention in accordance
with the provisions of paragraphs 1 and 2.
4. In respect of any signatory State which subsequently
expresses its consent to be bound by it, the Convention shall enter into force
on the first day of the month following the expiration of a period of three
months after the date of the expression of its consent to be bound by the
Convention in accordance with the provisions of paragraphs 1 and 2.
Article 37 - Accession to the Convention
1. After the entry into force of this Convention, the
Committee of Ministers of the Council of Europe, after consulting with and
obtaining the unanimous consent of the Contracting States to the Convention, may
invite any State not a member of the Council and which has not participated in
its elaboration to accede to this Convention. The decision shall be taken by the
majority provided for in Article 20 (d) of the Statute of the Council of Europe
and by the unanimous vote of the representatives of the Contracting States
entitled to sit on the Committee of Ministers.
2. In respect of any State acceding to the Convention under
paragraph 1 above, the Convention shall enter into force on the first day of the
month following the expiration of a period of three months after the date of
deposit of the instrument of accession with the Secretary General of the Council
of Europe.
[3. Any State seeking to accede to the present Convention,
which intends to make a declaration under Article 41, shall provide to the
Secretary General the proposed statement referred to in that Article. The
Secretary General shall submit such a proposed statement to the Contracting
States and other States entitled to sit on the Committee of Ministers prior to
the decision being taken under paragraph 1 above.]
Article 38 - Territorial application
1. Any State may, at the time of signature or when depositing
its instrument of ratification, acceptance, approval or accession, specify the
territory or territories to which this Convention shall apply.
2. Any Party may, at any later date, by a declaration
addressed to the Secretary General of the Council of Europe, extend the
application of this Convention to any other territory specified in the
declaration. In respect of such territory the Convention shall enter into force
on the first day of the month following the expiration of a period of three
months after the date of receipt of the declaration by the Secretary General.
3. Any declaration made under the two preceding paragraphs
may, in respect of any territory specified in such declaration, be withdrawn by
a notification addressed to the Secretary General of the Council of Europe. The
withdrawal shall become effective on the first day of the month following the
expiration of a period of three months after the date of receipt of such
notification by the Secretary General.
Article 39 - Effects of the Convention
1. The purpose of the present Convention is to supplement
applicable multilateral or bilateral treaties or arrangements as between the
Parties, including the provisions of:
- the European Convention on Extradition opened for signature in Strasbourg
on 13 December 1957 (ETS No. 24);
- the European Convention on Mutual Assistance in Criminal Matters opened for
signature in Strasbourg on 20 April 1959 (ETS No. 30);
- the Additional Protocol to the European Convention on Mutual Assistance in
Criminal Matters opened for signature in Strasbourg on 17 March 1978 (ETS
No. 99).
2. If two or more Parties have already concluded an agreement
or treaty on the matters dealt with in this Convention or otherwise have
established their relations on such matters, or should they in future do so,
they shall also be entitled to apply that agreement or treaty or to regulate
those relations accordingly. However, where Parties establish their relations in
respect of the matters dealt with in the present convention other than as
regulated therein, they shall do so in a manner that is not inconsistent with
the Convention's objectives and principles.
3. Nothing in this Convention shall affect other rights,
restrictions, obligations and responsibilities of a Party.
Article 40 - Declarations
By a written notification addressed to the Secretary General
of the Council of Europe, any State may, at the time of signature or when
depositing its instrument of ratification, acceptance, approval or accession,
declare that it avails itself of the possibility of requiring additional
elements as provided for under Article 2, Article 3, Article 6, paragraph 1 (b),
Article 7, Article 9, paragraph 3 and Article 27, paragraph 9 (e).
[Article 41 - Federal clause
1. A federal State may notify the Secretary General at the
time of signature or when depositing its instrument of ratification, acceptance,
approval or accession, that it shall assume obligations under Chapter II of this
Convention consistent with its fundamental principles governing the relationship
between its central government and constituent States or other similar
territorial entities provided that it is still able to co-operate under Chapter
III.
2. With regard to the provisions of this Convention, the
implementation of which come under the jurisdiction of constituent States or
other similar territorial entities, that are not obliged by the constitutional
system of the federation to take legislative measures, the federal government
shall inform the competent authorities of such States of the said provisions
with its favourable opinion.
3. When making a declaration under paragraph 1, a federal
State shall provide a statement regarding the nature of its federal system, and
of the effect of its federal character on the implementation of the Convention.]
(1)
Article 42 - Reservations
By a written notification addressed to the Secretary General
of the Council of Europe, any State may, at the time of signature or when
depositing its instrument of ratification, acceptance, approval or accession,
declare that it avails itself of the reservation(s) provided for in Article 4,
paragraph 2, Article 6, paragraph 3, Article 9, paragraph 4, Article 10,
paragraph 3, Article 11, paragraph 3, Article 14, paragraph 3, Article 22,
paragraph 2, Article 29, paragraph 4. No other reservation may be made.
Article 43 - Status and withdrawal of reservations
1. A Party that has made a reservation in accordance with
Article 42 may wholly or partially withdraw it by means of a notification
addressed to the Secretary General. Such withdrawal shall take effect on the
date of receipt of such notification by the Secretary General. If the
notification states that the withdrawal of a reservation is to take effect on a
date specified therein, and such date is later than the date on which the
notification is received by the Secretary General, the withdrawal shall take
effect on such a later date.
2. A Party that has made a reservation as referred to in
Article 42 shall withdraw such reservation, in whole or in part, as soon as
circumstances so permit.
3. The Secretary General may periodically enquire with
Parties that have made one or more reservations as referred to in Article 42 as
to the prospects for withdrawing such reservation(s).
Article 44 - Amendments
1. Amendments to this Convention may be proposed by any
Party, and shall be communicated by the Secretary General of the Council of
Europe to the member States of the Council of Europe, to the non-member States
which have participated in the elaboration of this Convention as well as to any
State which has acceded to, or has been invited to accede to, this Convention in
accordance with the provisions of Article 37.
2. Any amendment proposed by a Party shall be communicated to
the European Committee on Crime Problems (CDPC), which shall submit to the
Committee of Ministers its opinion on that proposed amendment.
3. The Committee of Ministers shall consider the proposed
amendment and the opinion submitted by the European Committee on Crime Problems
(CDPC) and, following consultation with the non-member State Parties to this
Convention, may adopt the amendment.
4. The text of any amendment adopted by the Committee of
Ministers in accordance with paragraph 3 of this article shall be forwarded to
the Parties for acceptance.
5. Any amendment adopted in accordance with paragraph 3 of
this article shall come into force on the thirtieth day after all Parties have
informed the Secretary General of their acceptance thereof.
Article 45 - Settlement of disputes
1. The European Committee on Crime Problems (CDPC) shall be
kept informed regarding the interpretation and application of this Convention.
2. In case of a dispute between Parties as to the
interpretation or application of this Convention, they shall seek a settlement
of the dispute through negotiation or any other peaceful means of their choice,
including submission of the dispute to the European Committee on Crime Problems
(CDPC), to an arbitral tribunal whose decisions shall be binding upon the
Parties, or to the International Court of Justice, as agreed upon by the Parties
concerned.
Article 46 - Consultations of the Parties
1. The Parties shall, as appropriate, consult periodically
with a view to facilitating:
a. the effective use and implementation of this Convention,
including the identification of any problems thereof, as well as the effects of
any declaration or reservation made under this Convention;
b. the exchange of information on significant legal, policy
or technological developments pertaining to cyber-crime and the collection of
evidence in electronic form;
c. consideration of possible supplementation or amendment of
the Convention.
2. The European Committee on Crime Problems (CDPC) shall be
kept periodically informed regarding the result of consultations referred to in
paragraph 1.
3. The European Committee on Crime Problems (CDPC) shall, as
appropriate, facilitate the consultations referred to in paragraph 1 and take
the measures necessary to assist the Parties in their efforts to supplement or
amend the Convention. At the latest three years after the present Convention
enters into force, the European Committee on Crime Problems (CDPC) shall, in
co-operation with the Parties, conduct a review of all of the Convention's
provisions and, if necessary, recommend any appropriate amendments.
4. Except where assumed by the Council of Europe, expenses
incurred in carrying out the provisions of paragraph 1 shall be borne by the
Parties in the manner to be determined by them.
5. The Parties shall be assisted by the Secretariat of the
Council of Europe in carrying out their functions pursuant to this Article.
Article 47 - Denunciation
1. Any Party may, at any time, denounce this Convention by
means of a notification addressed to the Secretary General of the Council of
Europe.
2. Such denunciation shall become effective on the first day
of the month following the expiration of a period of three months after the date
of receipt of the notification by the Secretary General.
Article 48 - Notification
The Secretary General of the Council of Europe shall notify
the member States of the Council of Europe, the non-member States which have
participated in the elaboration of this Convention as well as any State which
has acceded to, or has been invited to accede to, this Convention of:
a. any signature;
b. the deposit of any instrument of ratification, acceptance,
approval or accession;
c. any date of entry into force of this Convention in
accordance with Articles 36 and 37;
d. any declaration made under Article[s] 40 [and 41] or
reservation made in accordance with Article 42;
e. any other act, notification or communication relating to
this Convention.
In witness whereof the undersigned, being duly authorised
thereto, have signed this Convention.
Done at Strasbourg, on .. 2001, in English and in French,
both texts being equally authentic, in a single copy which shall be deposited in
the archives of the Council of Europe. The Secretary General of the Council of
Europe shall transmit certified copies to each member State of the Council of
Europe, to the non-member States which have participated in the elaboration of
this Convention, and to any State invited to accede to it.
Note :
(1) See the Introductory
Statement submitted by the CDPC to the Committee of Ministers on this issue.
Pagina stampabile
