Convention on Cybercrime

Transcription

1 The Convention ws previously pulished s Miscellneous No.2 (2010) Cm 7862 Trety Series No. 18 (2012) Convention on Cyercrime Budpest, 23 Novemer 2001 [The Convention entered into force for the United Kingdom on 1 Septemer 2011] Presented to Prliment y the Secretry of Stte for Foreign nd Commonwelth Affirs y Commnd of Her Mjesty Mrch 2012 Cm

2 The Convention ws previously pulished s Miscellneous No.2 (2010) Cm 7862 Trety Series No. 18 (2012) Convention on Cyercrime Budpest, 23 Novemer 2001 [The Convention entered into force for the United Kingdom on 1 Septemer 2011] Presented to Prliment y the Secretry of Stte for Foreign nd Commonwelth Affirs y Commnd of Her Mjesty Mrch 2012 Cm

3 Crown copyright 2012 You my re-use this informtion (not including logos) free of chrge in ny formt or medium, under the terms of the Open Government Licence. To view this licence, visit or write to the Informtion Policy Tem, The Ntionl Archives, Kew, London TW9 4DU, or e-mil: Any enquiries regrding this puliction should e sent to us t Trety Section, Foreign nd Commonwelth Office, King Chrles Street, London, SW1A 2AH This puliction is lso ville on ISBN: Printed in the UK y The Sttionery Office Limited on ehlf of the Controller of Her Mjesty s Sttionery Office ID P / Printed on pper contining 30% recycled fire content minimum.

4 CONVENTION ON CYBERCRIME Premle The memer Sttes of the Council of Europe nd the other Sttes signtory hereto, Considering tht the im of the Council of Europe is to chieve greter unity etween its memers; Recognising the vlue of fostering co-opertion with the other Sttes prties to this Convention; Convinced of the need to pursue, s mtter of priority, common criminl policy imed t the protection of society ginst cyercrime, inter li, y dopting pproprite legisltion nd fostering interntionl co-opertion; Conscious of the profound chnges rought out y the digitlistion, convergence nd continuing glolistion of computer networks; Concerned y the risk tht computer networks nd electronic informtion my lso e used for committing criminl offences nd tht evidence relting to such offences my e stored nd trnsferred y these networks; Recognising the need for co-opertion etween Sttes nd privte industry in comting cyercrime nd the need to protect legitimte interests in the use nd development of informtion technologies; Believing tht n effective fight ginst cyercrime requires incresed, rpid nd well-functioning interntionl co-opertion in criminl mtters; Convinced tht the present Convention is necessry to deter ction directed ginst the confidentility, integrity nd vilility of computer systems, networks nd computer dt s well s the misuse of such systems, networks nd dt y providing for the criminlistion of such conduct, s descried in this Convention, nd the doption of powers sufficient for effectively comting such criminl offences, y fcilitting their detection, investigtion nd prosecution t oth the domestic nd interntionl levels nd y providing rrngements for fst nd relile interntionl co-opertion; Mindful of the need to ensure proper lnce etween the interests of lw enforcement nd respect for fundmentl humn rights s enshrined in the 1950 Council of Europe Convention for the Protection of Humn Rights nd Fundmentl Freedoms 1, the 1966 United Ntions Interntionl Covennt on Civil nd Politicl Rights 2 nd other pplicle interntionl humn rights treties, which reffirm the right of everyone to hold opinions without interference, s well s the 1 Trety Series No. 071 (1593) Cmnd Trety Series No. 006 (1979) Cmnd

5 right to freedom of expression, including the freedom to seek, receive, nd imprt informtion nd ides of ll kinds, regrdless of frontiers, nd the rights concerning the respect for privcy; Mindful lso of the right to the protection of personl dt, s conferred, for exmple, y the 1981 Council of Europe Convention for the Protection of Individuls with regrd to Automtic Processing of Personl Dt 1 ; Considering the 1989 United Ntions Convention on the Rights of the Child 2 nd the 1999 Interntionl Lour Orgniztion Worst Forms of Child Lour Convention 3 ; Tking into ccount the existing Council of Europe conventions on co-opertion in the penl field, s well s similr treties which exist etween Council of Europe memer Sttes nd other Sttes, nd stressing tht the present Convention is intended to supplement those conventions in order to mke criminl investigtions nd proceedings concerning criminl offences relted to computer systems nd dt more effective nd to enle the collection of evidence in electronic form of criminl offence; Welcoming recent developments which further dvnce interntionl understnding nd co-opertion in comting cyercrime, including ction tken y the United Ntions, the OECD, the Europen Union nd the G8; Reclling Committee of Ministers Recommendtions No. R (85) 10 concerning the prcticl ppliction of the Europen Convention on Mutul Assistnce in Criminl Mtters 4 in respect of letters rogtory for the interception of telecommunictions, No. R (88) 2 on pircy in the field of copyright nd neighouring rights, No. R (87) 15 regulting the use of personl dt in the police sector, No. R (95) 4 on the protection of personl dt in the re of telecommuniction services, with prticulr reference to telephone services, s well s No. R (89) 9 on computerrelted crime providing guidelines for ntionl legisltures concerning the definition of certin computer crimes nd No. R (95) 13 concerning prolems of criminl procedurl lw connected with informtion technology; Hving regrd to Resolution No. 1 dopted y the Europen Ministers of Justice t their 21st Conference (Prgue, 10 nd 11 June 1997), which recommended tht the Committee of Ministers support the work on cyercrime crried out y the Europen Committee on Crime Prolems (CDPC) in order to ring domestic criminl lw provisions closer to ech other nd enle the use of effective mens of investigtion into such offences, s well s to Resolution No. 3 dopted t the 23rd Conference of the Europen Ministers of Justice (London, 8 nd 9 June 2000), which encourged the negotiting prties to pursue their efforts with view to finding pproprite solutions to enle the lrgest possile numer of Sttes to 1 Trety Series No. 086 (1990) Cm Trety Series No. 044 (1992) Cm Trety Series No. 037 (2001) Cm Trety Series No. 024 (1992) Cm

6 ecome prties to the Convention nd cknowledged the need for swift nd efficient system of interntionl co-opertion, which duly tkes into ccount the specific requirements of the fight ginst cyercrime; Hving lso regrd to the Action Pln dopted y the Heds of Stte nd Government of the Council of Europe on the occsion of their Second Summit (Strsourg, 10 nd 11 Octoer 1997), to seek common responses to the development of the new informtion technologies sed on the stndrds nd vlues of the Council of Europe; Hve greed s follows: CHAPTER I USE OF TERMS For the purposes of this Convention: ARTICLE 1 Definitions c "computer system" mens ny device or group of interconnected or relted devices, one or more of which, pursunt to progrm, performs utomtic processing of dt; computer dt mens ny representtion of fcts, informtion or concepts in form suitle for processing in computer system, including progrm suitle to cuse computer system to perform function; service provider mens: i ii ny pulic or privte entity tht provides to users of its service the ility to communicte y mens of computer system, nd ny other entity tht processes or stores computer dt on ehlf of such communiction service or users of such service; d trffic dt mens ny computer dt relting to communiction y mens of computer system, generted y computer system tht formed prt in the chin of communiction, indicting the communiction s origin, destintion, route, time, dte, size, durtion, or type of underlying service. 5

7 CHAPTER II MEASURES TO BE TAKEN AT THE NATIONAL LEVEL Section 1 Sustntive criminl lw Title 1 Offences ginst the confidentility, integrity nd vilility of computer dt nd systems ARTICLE 2 Illegl ccess Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly, the ccess to the whole or ny prt of computer system without right. A Prty my require tht the offence e committed y infringing security mesures, with the intent of otining computer dt or other dishonest intent, or in reltion to computer system tht is connected to nother computer system. ARTICLE 3 Illegl interception Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly, the interception without right, mde y technicl mens, of non-pulic trnsmissions of computer dt to, from or within computer system, including electromgnetic emissions from computer system crrying such computer dt. A Prty my require tht the offence e committed with dishonest intent, or in reltion to computer system tht is connected to nother computer system. ARTICLE 4 Dt interference 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly, the dmging, deletion, deteriortion, ltertion or suppression of computer dt without right. 6

8 2 A Prty my reserve the right to require tht the conduct descried in prgrph 1 result in serious hrm. ARTICLE 5 System interference Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly, the serious hindering without right of the functioning of computer system y inputting, trnsmitting, dmging, deleting, deteriorting, ltering or suppressing computer dt. ARTICLE 6 Misuse of devices 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly nd without right: the production, sle, procurement for use, import, distriution or otherwise mking ville of: i ii device, including computer progrm, designed or dpted primrily for the purpose of committing ny of the offences estlished in ccordnce with the ove Articles 2 through 5; computer pssword, ccess code, or similr dt y which the whole or ny prt of computer system is cple of eing ccessed, with intent tht it e used for the purpose of committing ny of the offences estlished in Articles 2 through 5; nd the possession of n item referred to in prgrphs.i or ii ove, with intent tht it e used for the purpose of committing ny of the offences estlished in Articles 2 through 5. A Prty my require y lw tht numer of such items e possessed efore criminl liility ttches. 2 This rticle shll not e interpreted s imposing criminl liility where the production, sle, procurement for use, import, distriution or otherwise mking ville or possession referred to in prgrph 1 of this rticle is not for the purpose of committing n offence estlished in ccordnce with Articles 2 through 5 of this Convention, such s for the uthorised testing or protection of computer system. 7

9 3 Ech Prty my reserve the right not to pply prgrph 1 of this rticle, provided tht the reservtion does not concern the sle, distriution or otherwise mking ville of the items referred to in prgrph 1.ii of this rticle. Title 2 Computer-relted offences ARTICLE 7 Computer-relted forgery Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly nd without right, the input, ltertion, deletion, or suppression of computer dt, resulting in inuthentic dt with the intent tht it e considered or cted upon for legl purposes s if it were uthentic, regrdless whether or not the dt is directly redle nd intelligile. A Prty my require n intent to defrud, or similr dishonest intent, efore criminl liility ttches. ARTICLE 8 Computer-relted frud Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly nd without right, the cusing of loss of property to nother person y: ny input, ltertion, deletion or suppression of computer dt; ny interference with the functioning of computer system, with frudulent or dishonest intent of procuring, without right, n economic enefit for oneself or for nother person. Title 3 Content-relted offences ARTICLE 9 Offences relted to child pornogrphy 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly nd without right, the following conduct: 8

10 c d e producing child pornogrphy for the purpose of its distriution through computer system; offering or mking ville child pornogrphy through computer system; distriuting or trnsmitting child pornogrphy through computer system; procuring child pornogrphy through computer system for oneself or for nother person; possessing child pornogrphy in computer system or on computerdt storge medium. 2 For the purpose of prgrph 1 ove, the term child pornogrphy shll include pornogrphic mteril tht visully depicts: c minor engged in sexully explicit conduct; person ppering to e minor engged in sexully explicit conduct; relistic imges representing minor engged in sexully explicit conduct. 3 For the purpose of prgrph 2 ove, the term minor shll include ll persons under 18 yers of ge. A Prty my, however, require lower ge-limit, which shll e not less thn 16 yers. 4 Ech Prty my reserve the right not to pply, in whole or in prt, prgrphs 1, su-prgrphs d. nd e, nd 2, su-prgrphs. nd c. Title 4 Offences relted to infringements of copyright nd relted rights ARTICLE 10 Offences relted to infringements of copyright nd relted rights 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw the infringement of copyright, s defined under the lw of tht Prty, pursunt to the oligtions it hs undertken under the Pris Act of 24 July 1971 revising the Bern Convention for the Protection of Literry nd Artistic Works 1, the Agreement on Trde-Relted Aspects of Intellectul Property Rights 2 nd the WIPO Copyright Trety 3, with the 1 Trety Series No. 063 (1990) Cm Trety Series No. 010 (1990) Cm Miscellneous Series No. 009 (1997) Cm

11 exception of ny morl rights conferred y such conventions, where such cts re committed wilfully, on commercil scle nd y mens of computer system. 2 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw the infringement of relted rights, s defined under the lw of tht Prty, pursunt to the oligtions it hs undertken under the Interntionl Convention for the Protection of Performers, Producers of Phonogrms nd Brodcsting Orgnistions (Rome Convention) 1, the Agreement on Trde-Relted Aspects of Intellectul Property Rights nd the WIPO Performnces nd Phonogrms Trety 2, with the exception of ny morl rights conferred y such conventions, where such cts re committed wilfully, on commercil scle nd y mens of computer system. 3 A Prty my reserve the right not to impose criminl liility under prgrphs 1 nd 2 of this rticle in limited circumstnces, provided tht other effective remedies re ville nd tht such reservtion does not derogte from the Prty s interntionl oligtions set forth in the interntionl instruments referred to in prgrphs 1 nd 2 of this rticle. Title 5 Ancillry liility nd snctions ARTICLE 11 Attempt nd iding or etting 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly, iding or etting the commission of ny of the offences estlished in ccordnce with Articles 2 through 10 of the present Convention with intent tht such offence e committed. 2 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish s criminl offences under its domestic lw, when committed intentionlly, n ttempt to commit ny of the offences estlished in ccordnce with Articles 3 through 5, 7, 8, nd 9.1. nd c. of this Convention. 3 Ech Prty my reserve the right not to pply, in whole or in prt, prgrph 2 of this rticle. 1 Trety Series No. 038 (1964) Cmnd Miscellneous Series No. 008 (1997) Cm

12 ARTICLE 12 Corporte liility 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to ensure tht legl persons cn e held lile for criminl offence estlished in ccordnce with this Convention, committed for their enefit y ny nturl person, cting either individully or s prt of n orgn of the legl person, who hs leding position within it, sed on: c power of representtion of the legl person; n uthority to tke decisions on ehlf of the legl person; n uthority to exercise control within the legl person. 2 In ddition to the cses lredy provided for in prgrph 1 of this rticle, ech Prty shll tke the mesures necessry to ensure tht legl person cn e held lile where the lck of supervision or control y nturl person referred to in prgrph 1 hs mde possile the commission of criminl offence estlished in ccordnce with this Convention for the enefit of tht legl person y nturl person cting under its uthority. 3 Suject to the legl principles of the Prty, the liility of legl person my e criminl, civil or dministrtive. 4 Such liility shll e without prejudice to the criminl liility of the nturl persons who hve committed the offence. ARTICLE 13 Snctions nd mesures 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to ensure tht the criminl offences estlished in ccordnce with Articles 2 through 11 re punishle y effective, proportionte nd dissusive snctions, which include deprivtion of lierty. 2 Ech Prty shll ensure tht legl persons held lile in ccordnce with Article 12 shll e suject to effective, proportionte nd dissusive criminl or non-criminl snctions or mesures, including monetry snctions. 11

13 Section 2 Procedurl lw Title 1 Common provisions ARTICLE 14 Scope of procedurl provisions 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish the powers nd procedures provided for in this section for the purpose of specific criminl investigtions or proceedings. 2 Except s specificlly provided otherwise in Article 21, ech Prty shll pply the powers nd procedures referred to in prgrph 1 of this rticle to: c the criminl offences estlished in ccordnce with Articles 2 through 11 of this Convention; other criminl offences committed y mens of computer system; nd the collection of evidence in electronic form of criminl offence. 3 Ech Prty my reserve the right to pply the mesures referred to in Article 20 only to offences or ctegories of offences specified in the reservtion, provided tht the rnge of such offences or ctegories of offences is not more restricted thn the rnge of offences to which it pplies the mesures referred to in Article 21. Ech Prty shll consider restricting such reservtion to enle the rodest ppliction of the mesure referred to in Article 20. Where Prty, due to limittions in its legisltion in force t the time of the doption of the present Convention, is not le to pply the mesures referred to in Articles 20 nd 21 to communictions eing trnsmitted within computer system of service provider, which system: i ii is eing operted for the enefit of closed group of users, nd does not employ pulic communictions networks nd is not connected with nother computer system, whether pulic or privte, tht Prty my reserve the right not to pply these mesures to such communictions. Ech Prty shll consider restricting such reservtion 12

14 to enle the rodest ppliction of the mesures referred to in Articles 20 nd 21. ARTICLE 15 Conditions nd sfegurds 1 Ech Prty shll ensure tht the estlishment, implementtion nd ppliction of the powers nd procedures provided for in this Section re suject to conditions nd sfegurds provided for under its domestic lw, which shll provide for the dequte protection of humn rights nd lierties, including rights rising pursunt to oligtions it hs undertken under the 1950 Council of Europe Convention for the Protection of Humn Rights nd Fundmentl Freedoms 1, the 1966 United Ntions Interntionl Covennt on Civil nd Politicl Rights, nd other pplicle interntionl humn rights instruments, nd which shll incorporte the principle of proportionlity. 2 Such conditions nd sfegurds shll, s pproprite in view of the nture of the procedure or power concerned, inter li, include judicil or other independent supervision, grounds justifying ppliction, nd limittion of the scope nd the durtion of such power or procedure. 3 To the extent tht it is consistent with the pulic interest, in prticulr the sound dministrtion of justice, ech Prty shll consider the impct of the powers nd procedures in this section upon the rights, responsiilities nd legitimte interests of third prties. Title 2 Expedited preservtion of stored computer dt ARTICLE 16 Expedited preservtion of stored computer dt 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to enle its competent uthorities to order or similrly otin the expeditious preservtion of specified computer dt, including trffic dt, tht hs een stored y mens of computer system, in prticulr where there re grounds to elieve tht the computer dt is prticulrly vulnerle to loss or modifiction. 2 Where Prty gives effect to prgrph 1 ove y mens of n order to person to preserve specified stored computer dt in the person s possession or control, the Prty shll dopt such legisltive nd other mesures s my e necessry to olige tht person to preserve nd mintin the integrity of tht computer dt for period of time s long s necessry, up to mximum of ninety 1 Trety Series No. 071 (1953) Cmd

15 dys, to enle the competent uthorities to seek its disclosure. A Prty my provide for such n order to e susequently renewed. 3 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to olige the custodin or other person who is to preserve the computer dt to keep confidentil the undertking of such procedures for the period of time provided for y its domestic lw. 4 The powers nd procedures referred to in this rticle shll e suject to Articles 14 nd 15. ARTICLE 17 Expedited preservtion nd prtil disclosure of trffic dt 1 Ech Prty shll dopt, in respect of trffic dt tht is to e preserved under Article 16, such legisltive nd other mesures s my e necessry to: ensure tht such expeditious preservtion of trffic dt is ville regrdless of whether one or more service providers were involved in the trnsmission of tht communiction; nd ensure the expeditious disclosure to the Prty s competent uthority, or y tht uthority, of sufficient mount of trffic dt to enle the Prty to identify the service providers nd the pth through which the communiction ws trnsmitted. 2 The powers nd procedures referred to in this rticle shll e suject to Articles 14 nd 15. Title 3 Production order ARTICLE 18 Production order 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to empower its competent uthorities to order: person in its territory to sumit specified computer dt in tht person s possession or control, which is stored in computer system or computer-dt storge medium; nd service provider offering its services in the territory of the Prty to sumit suscrier informtion relting to such services in tht service provider s possession or control. 14

16 2 The powers nd procedures referred to in this rticle shll e suject to Articles 14 nd For the purpose of this rticle, the term suscrier informtion mens ny informtion contined in the form of computer dt or ny other form tht is held y service provider, relting to suscriers of its services other thn trffic or content dt nd y which cn e estlished: c the type of communiction service used, the technicl provisions tken thereto nd the period of service; the suscrier s identity, postl or geogrphic ddress, telephone nd other ccess numer, illing nd pyment informtion, ville on the sis of the service greement or rrngement; ny other informtion on the site of the instlltion of communiction equipment, ville on the sis of the service greement or rrngement. Title 4 Serch nd seizure of stored computer dt ARTICLE 19 Serch nd seizure of stored computer dt 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to empower its competent uthorities to serch or similrly ccess: computer system or prt of it nd computer dt stored therein; nd computer-dt storge medium in which computer dt my e stored in its territory. 2 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to ensure tht where its uthorities serch or similrly ccess specific computer system or prt of it, pursunt to prgrph 1., nd hve grounds to elieve tht the dt sought is stored in nother computer system or prt of it in its territory, nd such dt is lwfully ccessile from or ville to the initil system, the uthorities shll e le to expeditiously extend the serch or similr ccessing to the other system. 3 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to empower its competent uthorities to seize or similrly secure computer dt ccessed ccording to prgrphs 1 or 2. These mesures shll include the power to: 15

17 c d seize or similrly secure computer system or prt of it or computerdt storge medium; mke nd retin copy of those computer dt; mintin the integrity of the relevnt stored computer dt; render inccessile or remove those computer dt in the ccessed computer system. 4 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to empower its competent uthorities to order ny person who hs knowledge out the functioning of the computer system or mesures pplied to protect the computer dt therein to provide, s is resonle, the necessry informtion, to enle the undertking of the mesures referred to in prgrphs 1 nd 2. 5 The powers nd procedures referred to in this rticle shll e suject to Articles 14 nd 15. Title 5 Rel-time collection of computer dt ARTICLE 20 Rel-time collection of trffic dt 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to empower its competent uthorities to: collect or record through the ppliction of technicl mens on the territory of tht Prty, nd compel service provider, within its existing technicl cpility: i ii to collect or record through the ppliction of technicl mens on the territory of tht Prty; or to co-operte nd ssist the competent uthorities in the collection or recording of, trffic dt, in rel-time, ssocited with specified communictions in its territory trnsmitted y mens of computer system. 2 Where Prty, due to the estlished principles of its domestic legl system, cnnot dopt the mesures referred to in prgrph 1., it my insted dopt legisltive nd other mesures s my e necessry to ensure the rel-time collection or recording of trffic dt ssocited with specified communictions 16

18 trnsmitted in its territory, through the ppliction of technicl mens on tht territory. 3 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to olige service provider to keep confidentil the fct of the execution of ny power provided for in this rticle nd ny informtion relting to it. 4 The powers nd procedures referred to in this rticle shll e suject to Articles 14 nd 15. ARTICLE 21 Interception of content dt 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry, in reltion to rnge of serious offences to e determined y domestic lw, to empower its competent uthorities to: collect or record through the ppliction of technicl mens on the territory of tht Prty, nd compel service provider, within its existing technicl cpility: i ii to collect or record through the ppliction of technicl mens on the territory of tht Prty, or to co-operte nd ssist the competent uthorities in the collection or recording of, content dt, in rel-time, of specified communictions in its territory trnsmitted y mens of computer system. 2 Where Prty, due to the estlished principles of its domestic legl system, cnnot dopt the mesures referred to in prgrph 1., it my insted dopt legisltive nd other mesures s my e necessry to ensure the rel-time collection or recording of content dt on specified communictions in its territory through the ppliction of technicl mens on tht territory. 3 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to olige service provider to keep confidentil the fct of the execution of ny power provided for in this rticle nd ny informtion relting to it. 4 The powers nd procedures referred to in this rticle shll e suject to Articles 14 nd

19 Section 3 Jurisdiction ARTICLE 22 Jurisdiction 1 Ech Prty shll dopt such legisltive nd other mesures s my e necessry to estlish jurisdiction over ny offence estlished in ccordnce with Articles 2 through 11 of this Convention, when the offence is committed: c d in its territory; or on ord ship flying the flg of tht Prty; or on ord n ircrft registered under the lws of tht Prty; or y one of its ntionls, if the offence is punishle under criminl lw where it ws committed or if the offence is committed outside the territoril jurisdiction of ny Stte. 2 Ech Prty my reserve the right not to pply or to pply only in specific cses or conditions the jurisdiction rules lid down in prgrphs 1. through 1.d of this rticle or ny prt thereof. 3 Ech Prty shll dopt such mesures s my e necessry to estlish jurisdiction over the offences referred to in Article 24, prgrph 1, of this Convention, in cses where n lleged offender is present in its territory nd it does not extrdite him or her to nother Prty, solely on the sis of his or her ntionlity, fter request for extrdition. 4 This Convention does not exclude ny criminl jurisdiction exercised y Prty in ccordnce with its domestic lw. 5 When more thn one Prty clims jurisdiction over n lleged offence estlished in ccordnce with this Convention, the Prties involved shll, where pproprite, consult with view to determining the most pproprite jurisdiction for prosecution. 18

20 CHAPTER III INTERNATIONAL CO-OPERATION Section 1 Generl principles Title 1 Generl principles relting to interntionl co-opertion ARTICLE 23 Generl principles relting to interntionl co-opertion The Prties shll co-operte with ech other, in ccordnce with the provisions of this chpter, nd through the ppliction of relevnt interntionl instruments on interntionl co-opertion in criminl mtters, rrngements greed on the sis of uniform or reciprocl legisltion, nd domestic lws, to the widest extent possile for the purposes of investigtions or proceedings concerning criminl offences relted to computer systems nd dt, or for the collection of evidence in electronic form of criminl offence. Title 2 Principles relting to extrdition ARTICLE 24 Extrdition 1 This rticle pplies to extrdition etween Prties for the criminl offences estlished in ccordnce with Articles 2 through 11 of this Convention, provided tht they re punishle under the lws of oth Prties concerned y deprivtion of lierty for mximum period of t lest one yer, or y more severe penlty. Where different minimum penlty is to e pplied under n rrngement greed on the sis of uniform or reciprocl legisltion or n extrdition trety, including the Europen Convention on Extrdition (ETS No. 24) 1, pplicle etween two or more prties, the minimum penlty provided for under such rrngement or trety shll pply. 1 Trety Series No. 097 (1991) Cm

21 2 The criminl offences descried in prgrph 1 of this rticle shll e deemed to e included s extrditle offences in ny extrdition trety existing etween or mong the Prties. The Prties undertke to include such offences s extrditle offences in ny extrdition trety to e concluded etween or mong them. 3 If Prty tht mkes extrdition conditionl on the existence of trety receives request for extrdition from nother Prty with which it does not hve n extrdition trety, it my consider this Convention s the legl sis for extrdition with respect to ny criminl offence referred to in prgrph 1 of this rticle. 4 Prties tht do not mke extrdition conditionl on the existence of trety shll recognise the criminl offences referred to in prgrph 1 of this rticle s extrditle offences etween themselves. 5 Extrdition shll e suject to the conditions provided for y the lw of the requested Prty or y pplicle extrdition treties, including the grounds on which the requested Prty my refuse extrdition. 6 If extrdition for criminl offence referred to in prgrph 1 of this rticle is refused solely on the sis of the ntionlity of the person sought, or ecuse the requested Prty deems tht it hs jurisdiction over the offence, the requested Prty shll sumit the cse t the request of the requesting Prty to its competent uthorities for the purpose of prosecution nd shll report the finl outcome to the requesting Prty in due course. Those uthorities shll tke their decision nd conduct their investigtions nd proceedings in the sme mnner s for ny other offence of comprle nture under the lw of tht Prty. 7 Ech Prty shll, t the time of signture or when depositing its instrument of rtifiction, cceptnce, pprovl or ccession, communicte to the Secretry Generl of the Council of Europe the nme nd ddress of ech uthority responsile for mking or receiving requests for extrdition or provisionl rrest in the sence of trety. The Secretry Generl of the Council of Europe shll set up nd keep updted register of uthorities so designted y the Prties. Ech Prty shll ensure tht the detils held on the register re correct t ll times. Title 3 Generl principles relting to mutul ssistnce ARTICLE 25 Generl principles relting to mutul ssistnce 1 The Prties shll fford one nother mutul ssistnce to the widest extent possile for the purpose of investigtions or proceedings concerning criminl 20

22 offences relted to computer systems nd dt, or for the collection of evidence in electronic form of criminl offence. 2 Ech Prty shll lso dopt such legisltive nd other mesures s my e necessry to crry out the oligtions set forth in Articles 27 through Ech Prty my, in urgent circumstnces, mke requests for mutul ssistnce or communictions relted thereto y expedited mens of communiction, including fx or e-mil, to the extent tht such mens provide pproprite levels of security nd uthentiction (including the use of encryption, where necessry), with forml confirmtion to follow, where required y the requested Prty. The requested Prty shll ccept nd respond to the request y ny such expedited mens of communiction. 4 Except s otherwise specificlly provided in rticles in this chpter, mutul ssistnce shll e suject to the conditions provided for y the lw of the requested Prty or y pplicle mutul ssistnce treties, including the grounds on which the requested Prty my refuse co-opertion. The requested Prty shll not exercise the right to refuse mutul ssistnce in reltion to the offences referred to in Articles 2 through 11 solely on the ground tht the request concerns n offence which it considers fiscl offence. 5 Where, in ccordnce with the provisions of this chpter, the requested Prty is permitted to mke mutul ssistnce conditionl upon the existence of dul criminlity, tht condition shll e deemed fulfilled, irrespective of whether its lws plce the offence within the sme ctegory of offence or denominte the offence y the sme terminology s the requesting Prty, if the conduct underlying the offence for which ssistnce is sought is criminl offence under its lws. ARTICLE 26 Spontneous informtion 1 A Prty my, within the limits of its domestic lw nd without prior request, forwrd to nother Prty informtion otined within the frmework of its own investigtions when it considers tht the disclosure of such informtion might ssist the receiving Prty in inititing or crrying out investigtions or proceedings concerning criminl offences estlished in ccordnce with this Convention or might led to request for co-opertion y tht Prty under this chpter. 2 Prior to providing such informtion, the providing Prty my request tht it e kept confidentil or only used suject to conditions. If the receiving Prty cnnot comply with such request, it shll notify the providing Prty, which shll then determine whether the informtion should nevertheless e provided. If the receiving Prty ccepts the informtion suject to the conditions, it shll e ound y them. 21

23 Title 4 Procedures pertining to mutul ssistnce requests in the sence of pplicle interntionl greements ARTICLE 27 Procedures pertining to mutul ssistnce requests in the sence of pplicle interntionl greements 1 Where there is no mutul ssistnce trety or rrngement on the sis of uniform or reciprocl legisltion in force etween the requesting nd requested Prties, the provisions of prgrphs 2 through 9 of this rticle shll pply. The provisions of this rticle shll not pply where such trety, rrngement or legisltion exists, unless the Prties concerned gree to pply ny or ll of the reminder of this rticle in lieu thereof. 2 Ech Prty shll designte centrl uthority or uthorities responsile for sending nd nswering requests for mutul ssistnce, the execution of such requests or their trnsmission to the uthorities competent for their execution. c d The centrl uthorities shll communicte directly with ech other; Ech Prty shll, t the time of signture or when depositing its instrument of rtifiction, cceptnce, pprovl or ccession, communicte to the Secretry Generl of the Council of Europe the nmes nd ddresses of the uthorities designted in pursunce of this prgrph; The Secretry Generl of the Council of Europe shll set up nd keep updted register of centrl uthorities designted y the Prties. Ech Prty shll ensure tht the detils held on the register re correct t ll times. 3 Mutul ssistnce requests under this rticle shll e executed in ccordnce with the procedures specified y the requesting Prty, except where incomptile with the lw of the requested Prty. 4 The requested Prty my, in ddition to the grounds for refusl estlished in Article 25, prgrph 4, refuse ssistnce if: the request concerns n offence which the requested Prty considers politicl offence or n offence connected with politicl offence, or it considers tht execution of the request is likely to prejudice its sovereignty, security, ordre pulic or other essentil interests. 22

24 5 The requested Prty my postpone ction on request if such ction would prejudice criminl investigtions or proceedings conducted y its uthorities. 6 Before refusing or postponing ssistnce, the requested Prty shll, where pproprite fter hving consulted with the requesting Prty, consider whether the request my e grnted prtilly or suject to such conditions s it deems necessry. 7 The requested Prty shll promptly inform the requesting Prty of the outcome of the execution of request for ssistnce. Resons shll e given for ny refusl or postponement of the request. The requested Prty shll lso inform the requesting Prty of ny resons tht render impossile the execution of the request or re likely to dely it significntly. 8 The requesting Prty my request tht the requested Prty keep confidentil the fct of ny request mde under this chpter s well s its suject, except to the extent necessry for its execution. If the requested Prty cnnot comply with the request for confidentility, it shll promptly inform the requesting Prty, which shll then determine whether the request should nevertheless e executed. 9 In the event of urgency, requests for mutul ssistnce or communictions relted thereto my e sent directly y judicil uthorities of the requesting Prty to such uthorities of the requested Prty. In ny such cses, copy shll e sent t the sme time to the centrl uthority of the requested Prty through the centrl uthority of the requesting Prty. c d e Any request or communiction under this prgrph my e mde through the Interntionl Criminl Police Orgnistion (Interpol). Where request is mde pursunt to su-prgrph. of this rticle nd the uthority is not competent to del with the request, it shll refer the request to the competent ntionl uthority nd inform directly the requesting Prty tht it hs done so. Requests or communictions mde under this prgrph tht do not involve coercive ction my e directly trnsmitted y the competent uthorities of the requesting Prty to the competent uthorities of the requested Prty. Ech Prty my, t the time of signture or when depositing its instrument of rtifiction, cceptnce, pprovl or ccession, inform the Secretry Generl of the Council of Europe tht, for resons of efficiency, requests mde under this prgrph re to e ddressed to its centrl uthority. 23

25 ARTICLE 28 Confidentility nd limittion on use 1 When there is no mutul ssistnce trety or rrngement on the sis of uniform or reciprocl legisltion in force etween the requesting nd the requested Prties, the provisions of this rticle shll pply. The provisions of this rticle shll not pply where such trety, rrngement or legisltion exists, unless the Prties concerned gree to pply ny or ll of the reminder of this rticle in lieu thereof. 2 The requested Prty my mke the supply of informtion or mteril in response to request dependent on the condition tht it is: kept confidentil where the request for mutul legl ssistnce could not e complied with in the sence of such condition, or not used for investigtions or proceedings other thn those stted in the request. 3 If the requesting Prty cnnot comply with condition referred to in prgrph 2, it shll promptly inform the other Prty, which shll then determine whether the informtion should nevertheless e provided. When the requesting Prty ccepts the condition, it shll e ound y it. 4 Any Prty tht supplies informtion or mteril suject to condition referred to in prgrph 2 my require the other Prty to explin, in reltion to tht condition, the use mde of such informtion or mteril. Section 2 Specific provisions Title 1 Mutul ssistnce regrding provisionl mesures ARTICLE 29 Expedited preservtion of stored computer dt 1 A Prty my request nother Prty to order or otherwise otin the expeditious preservtion of dt stored y mens of computer system, locted within the territory of tht other Prty nd in respect of which the requesting Prty intends to sumit request for mutul ssistnce for the serch or similr ccess, seizure or similr securing, or disclosure of the dt. 24

26 2 A request for preservtion mde under prgrph 1 shll specify: c d e f the uthority seeking the preservtion; the offence tht is the suject of criminl investigtion or proceedings nd rief summry of the relted fcts; the stored computer dt to e preserved nd its reltionship to the offence; ny ville informtion identifying the custodin of the stored computer dt or the loction of the computer system; the necessity of the preservtion; nd tht the Prty intends to sumit request for mutul ssistnce for the serch or similr ccess, seizure or similr securing, or disclosure of the stored computer dt. 3 Upon receiving the request from nother Prty, the requested Prty shll tke ll pproprite mesures to preserve expeditiously the specified dt in ccordnce with its domestic lw. For the purposes of responding to request, dul criminlity shll not e required s condition to providing such preservtion. 4 A Prty tht requires dul criminlity s condition for responding to request for mutul ssistnce for the serch or similr ccess, seizure or similr securing, or disclosure of stored dt my, in respect of offences other thn those estlished in ccordnce with Articles 2 through 11 of this Convention, reserve the right to refuse the request for preservtion under this rticle in cses where it hs resons to elieve tht t the time of disclosure the condition of dul criminlity cnnot e fulfilled. 5 In ddition, request for preservtion my only e refused if: the request concerns n offence which the requested Prty considers politicl offence or n offence connected with politicl offence, or the requested Prty considers tht execution of the request is likely to prejudice its sovereignty, security, ordre pulic or other essentil interests. 6 Where the requested Prty elieves tht preservtion will not ensure the future vilility of the dt or will threten the confidentility of or otherwise prejudice the requesting Prty s investigtion, it shll promptly so inform the requesting Prty, which shll then determine whether the request should nevertheless e executed. 25

27 7 Any preservtion effected in response to the request referred to in prgrph 1 shll e for period not less thn sixty dys, in order to enle the requesting Prty to sumit request for the serch or similr ccess, seizure or similr securing, or disclosure of the dt. Following the receipt of such request, the dt shll continue to e preserved pending decision on tht request. ARTICLE 30 Expedited disclosure of preserved trffic dt 1 Where, in the course of the execution of request mde pursunt to Article 29 to preserve trffic dt concerning specific communiction, the requested Prty discovers tht service provider in nother Stte ws involved in the trnsmission of the communiction, the requested Prty shll expeditiously disclose to the requesting Prty sufficient mount of trffic dt to identify tht service provider nd the pth through which the communiction ws trnsmitted. 2 Disclosure of trffic dt under prgrph 1 my only e withheld if: the request concerns n offence which the requested Prty considers politicl offence or n offence connected with politicl offence; or the requested Prty considers tht execution of the request is likely to prejudice its sovereignty, security, ordre pulic or other essentil interests. Title 2 Mutul ssistnce regrding investigtive powers ARTICLE 31 Mutul ssistnce regrding ccessing of stored computer dt 1 A Prty my request nother Prty to serch or similrly ccess, seize or similrly secure, nd disclose dt stored y mens of computer system locted within the territory of the requested Prty, including dt tht hs een preserved pursunt to Article The requested Prty shll respond to the request through the ppliction of interntionl instruments, rrngements nd lws referred to in Article 23, nd in ccordnce with other relevnt provisions of this chpter. 3 The request shll e responded to on n expedited sis where: there re grounds to elieve tht relevnt dt is prticulrly vulnerle to loss or modifiction; or 26

28 the instruments, rrngements nd lws referred to in prgrph 2 otherwise provide for expedited co-opertion. ARTICLE 32 Trns-order ccess to stored computer dt with consent or where pulicly ville A Prty my, without the uthoristion of nother Prty: ccess pulicly ville (open source) stored computer dt, regrdless of where the dt is locted geogrphiclly; or ccess or receive, through computer system in its territory, stored computer dt locted in nother Prty, if the Prty otins the lwful nd voluntry consent of the person who hs the lwful uthority to disclose the dt to the Prty through tht computer system. ARTICLE 33 Mutul ssistnce in the rel-time collection of trffic dt 1 The Prties shll provide mutul ssistnce to ech other in the rel-time collection of trffic dt ssocited with specified communictions in their territory trnsmitted y mens of computer system. Suject to the provisions of prgrph 2, this ssistnce shll e governed y the conditions nd procedures provided for under domestic lw. 2 Ech Prty shll provide such ssistnce t lest with respect to criminl offences for which rel-time collection of trffic dt would e ville in similr domestic cse. ARTICLE 34 Mutul ssistnce regrding the interception of content dt The Prties shll provide mutul ssistnce to ech other in the rel-time collection or recording of content dt of specified communictions trnsmitted y mens of computer system to the extent permitted under their pplicle treties nd domestic lws. 27

29 Title 3 24/7 Network ARTICLE 35 24/7 Network 1 Ech Prty shll designte point of contct ville on twenty-four hour, seven-dy--week sis, in order to ensure the provision of immedite ssistnce for the purpose of investigtions or proceedings concerning criminl offences relted to computer systems nd dt, or for the collection of evidence in electronic form of criminl offence. Such ssistnce shll include fcilitting, or, if permitted y its domestic lw nd prctice, directly crrying out the following mesures: the provision of technicl dvice; the preservtion of dt pursunt to Articles 29 nd 30; c the collection of evidence, the provision of legl informtion, nd locting of suspects. 2 A Prty s point of contct shll hve the cpcity to crry out communictions with the point of contct of nother Prty on n expedited sis. If the point of contct designted y Prty is not prt of tht Prty s uthority or uthorities responsile for interntionl mutul ssistnce or extrdition, the point of contct shll ensure tht it is le to coordinte with such uthority or uthorities on n expedited sis. 3 Ech Prty shll ensure tht trined nd equipped personnel re ville, in order to fcilitte the opertion of the network. CHAPTER IV FINAL PROVISIONS ARTICLE 36 Signture nd entry into force 1 This Convention shll e open for signture y the memer Sttes of the Council of Europe nd y non-memer Sttes which hve prticipted in its elortion. 28

30 2 This Convention is suject to rtifiction, cceptnce or pprovl. Instruments of rtifiction, cceptnce or pprovl shll e deposited with the Secretry Generl of the Council of Europe. 3 This Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte on which five Sttes, including t lest three memer Sttes of the Council of Europe, hve expressed their consent to e ound y the Convention in ccordnce with the provisions of prgrphs 1 nd 2. 4 In respect of ny signtory Stte which susequently expresses its consent to e ound y it, the Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte of the expression of its consent to e ound y the Convention in ccordnce with the provisions of prgrphs 1 nd 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, fter consulting with nd otining the unnimous consent of the Contrcting Sttes to the Convention, my invite ny Stte which is not memer of the Council nd which hs not prticipted in its elortion to ccede to this Convention. The decision shll e tken y the mjority provided for in Article 20.d. of the Sttute of the Council of Europe nd y the unnimous vote of the representtives of the Contrcting Sttes entitled to sit on the Committee of Ministers. 2 In respect of ny Stte cceding to the Convention under prgrph 1 ove, the Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte of deposit of the instrument of ccession with the Secretry Generl of the Council of Europe. ARTICLE 38 Territoril ppliction 1 Any Stte my, t the time of signture or when depositing its instrument of rtifiction, cceptnce, pprovl or ccession, specify the territory or territories to which this Convention shll pply. 2 Any Stte my, t ny lter dte, y declrtion ddressed to the Secretry Generl of the Council of Europe, extend the ppliction of this Convention to ny other territory specified in the declrtion. In respect of such territory the Convention shll enter into force on the first dy of the month following the 29