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Convention on Cybercrime
Budapest, 23.XI.2001
Explanatory Report
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 parties 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 cybercrime, 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 cybercrime and the
need to protect legitimate interests in the
use and development of information technologies;
Believing that an effective fight against cybercrime
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
evidence in electronic form of a criminal offence;
Welcoming recent developments which further
advance international understanding and co-operation in
combating cybercrimes, 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 cybercrime 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 cybercrime;
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:
i. 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;
ii. 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 Party 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.
2. 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 Party 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 9
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.
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 State 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 Paris 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 reserve the right to
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. When making a reservation under paragraph
1, a federal State may not apply the terms of such
reservation to exclude or substantially diminish
its obligations to provide for measures set forth in Chapter
II. Overall, it shall provide for a broad
and effective law enforcement capability with respect to those
measures.
3. With regard to the provisions of this Convention,
the application of which comes 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, encouraging them to take appropriate action
to give them effect.
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,
and Article 41, paragraph 1. 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 of the Council of
Europe 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
cybercrime 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 40 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 Budapest, this 23rd day of November
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.