[iwar] [fc:Convention.on.Cybercrime]

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Subject: [iwar] [fc:Convention.on.Cybercrime]
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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 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 evidence in electronic form 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 communicationıs 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 Partyıs 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 personıs 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 Partyıs 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
personıs 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 providerıs 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 subscriberıs 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 Partyıs 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 Partyıs 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
Partyıs 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 Conventionıs 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, and 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 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 Conventionıs
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 Articles 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 [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.

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This archive was generated by hypermail 2.1.2 : 2001-12-31 20:59:59 PST