European Convention on Cyber Crime
The European Convention on Cyber Crime came into force in June 2001 recognizing the urgent
need to pursue a common criminal policy aimed at the protection of society against
cyber-crime and the need for co-operation between States and private industry in combating
cyber-crime.
The Convention
Chapter I
Use of Terms
This Chapter contains Article 1 relating to definitions. The terms computer
system(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.) ,
computer data(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.) , service provider(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.)
and traffic data(Traffic data means any computer data relating to a communication by means
of a computer system, generated by a computer system that formed a part in the chain of
communication, indicating the communication’s origin, destination, route, time, date,
size, duration, or type of underlying service.) are defined in this section.
Chapter II
Measures to be taken at the National Level
This Chapter is divided into three sections as under.
Section 1 relating to Substantive Criminal Law
Section 2 relating to Procedural Law
Section 3 relating to Jurisdiction
Section 1
Substantive Criminal Law
This section is divided into 5 titles.
Title 1 relates to
Offences against the confidentiality, integrity and availability of computer data and
systems. This title contains Articles 2 to 6. These articles stipulate that state parties
to the Convention shall establish the following as offences under domestic law:
i. unauthorised intentional access to a computer system,
ii. unauthorised intentional interception, made by technical means, of non-public
transmissions of computer data to, from or within a computer system,
iii. intentional damaging, deletion, deterioration, alteration or suppression of computer
data without right.
iv. intentional and unauthorised serious hindering of the functioning of a computer system
by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing
computer data,
v. intentional and unauthorised production, sale, procurement for use, import,
distribution or otherwise making available of a device, including a computer program,
designed or adapted primarily for the purpose of committing any of the offences mentioned
in (i) to (iv) above,
vi. intentional and unauthorised production, sale, procurement for use, import,
distribution or otherwise making available of 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 mentioned in (i)
to (iv) above,
vii. the possession of an item referred to in paragraphs (v) and (vi) above, with intent
that it be used for the purpose of committing any of the offences mentioned in (i) to (iv)
above.
Title 2 relates to
Computer-related offences and contains Articles 7 and 8. These articles stipulate that
each country shall establish the following as offences under domestic law:
i. intentionally and unauthorizedly modifying or destroying data in any manner so as to
fabricate false evidence,
ii. intentionally and unauthorizedly causing loss of property to another by any
interference with the functioning of a computer system, or with fraudulent or dishonest
intent of procuring, without right, an economic benefit for oneself or for another.
Title 3 relates to
Content-related Offences and contains Articles 9. This article stipulates that Each Party
shall establish child pornography, promoted and procured in any manner, as offences under
domestic law if done intentionally and unauthorizedly.
"Child pornography" includes pornographic material that visually depicts:
a. a minor(The term "minor" includes all persons less than 18 years of age. The
domestic law may, however, require a lower age-limit, which shall be not less than 16
years.) 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.
Title 4 relates to
Offences Related to Infringements of Copyright and Related Rights and contains Article
10.This article stipulates that a Convention Country shall establish proper legal
framework for addressing infringement of copyright and related rights.
Title 5 relates to
Ancillary Liability and Sanctions and contains Articles 11 to 13 about abetment and
attempt to commit offences and corporate liability(Four conditions need to be met for
liability to attach: (1) one of the offences described in the Convention must have been
committed, (2) the offence must have been committed for the benefit of the legal person,
(3) a natural person who has a high position in the organization must have committed the
offence, (4) the person who has a leading position must have acted on a power of
representation or an authority to take decisions or to exercise control) .
Section 2
Procedural law
Title 1 relates to
Common provisions and contains Articles 14 and 15 which confer obligations upon a
Convention country to establish the powers and procedures described for the purpose of
"specific criminal investigations or proceedings" and provides for conditions
and safeguards that balance the requirements of law enforcement with the protection of
human rights and liberties.
Title 2 relates to
Expedited preservation of stored computer data and contains articles 16 and 17. The
Articles require each party to enact laws(Such laws must 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 must also ensure
the expeditious disclosure to the Party’s competent authority, or a person designated by
that authority, of a sufficient amount of traffic data to enable the Party to identify the
service providers and the path through which the communication was transmitted.) to
preserve computer data as it is particularly vulnerable to loss or modification and
requires Each Party to enact suitable laws in respect of traffic data that is to be
preserved under Article 16.
Title 4 relates to
Search and Seizure of Stored Computer Data and contains Article 19 under which a
Convention Country is required to empower its competent authorities to search or access a
computer system and computer-data storage medium in which computer data may be stored in
its territory(The power must extend to data in other computer systems in the territory
provided that it is lawfully accessible from or available to the initial system) .
The domestic law must empower the seizure and copying of the accessed computer data. The
domestic law must further empower the ordering of knowledgeable persons to give suitable
assistance.
Title 5 relates to
Real-time Collection of Computer Data and contains Article 20 and 21 requiring a
Convention country to enact legislation to compel a service provider to collect, record or
co-operate and assist competent authorities in the collection or recording of traffic data
or content data, in real-time, associated with specified communications in its territory
transmitted by means of a computer system(Optionally, the domestic law may ensure the
real-time collection or recording of traffic data associated with specified communications
in its territory.) .
Section 3
Jurisdiction
This section contains Article 22, which requires Each Party to enact legislation to
establish jurisdiction over any offence established in accordance with Articles 2 11 of
this Convention, when the offence is committed:
i. in its territory; or
ii. on board a ship flying the flag of that Party; or
iii. on board an aircraft registered under the laws of that Party; or
iv. 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.
Chapter III
International Co-operation
Section 1
General Principles
Title 1 relates to
General Principles Relating to International Co-operation and consists of Article 23.
This Article mandates that The Parties shall co-operate with each other, in accordance
with:
i. the provisions of this chapter,
ii. through application of relevant international instruments on international
co-operation in criminal matters,
iii. arrangements agreed on the basis of uniform or reciprocal legislation, and
iv. domestic laws
Title 2 is entitled
Principles Relating to Extradition and consists of Article 24 which applies to
extradition( 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.) between Parties for the criminal offences(These
criminal offences shall be deemed to be included as extraditable offences in any
extradition treaty existing between or among the Parties. This article mandates that The
Parties undertake to include such offences as extraditable offences in any extradition
treaty to be concluded between or among them.) 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(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) .
Title 3 is entitled
General Principles Relating to Mutual Assistance and consists of Articles 25 and 26
requiring Parties to assist each other for investigation and enact laws to carry out
obligations set forth in Articles 27 35.
Title 4 is titled
Procedures pertaining to mutual assistance requests in the absence of applicable
international agreements and consists of Articles 27 and 28. These Articles apply 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.
Section 2
Specific Provisions
Title 1 is entitled
Mutual assistance regarding provisional measures and consists of Article 29 and 30
allowing Parties to request another Party to order or otherwise obtain the expeditious
preservation of electronic data(Such data must be located within the territory of that
other Party.) , in respect of which the requesting Party intends to submit a request for
mutual assistance(Such assistance may be for the search or similar access, seizure or
similar securing, or disclosure of the data.) .
For the purposes of responding to a request, dual criminality shall not be required as a
condition to providing such preservation(A Party that requires dual criminality as a
condition for responding to such a request may 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.) .
Title 2 is entitled
Mutual Assistance Regarding Investigative Powers and contains Articles 31 to 34 providing
that 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.
Title 3 is entitled
24/7 Network and contains Article 35.
This article requires each Party to designate a point of contact available on a 24 hour,
7-day per week basis providing immediate assistance(Such assistance includes 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.) for:
i. investigations or proceedings concerning criminal offences related to computer systems
and data, and
ii. the collection of evidence in electronic form of a criminal offence.
A Party’s point of contact is required to have the capacity to carry out communications
with the point of contact of another Party on an expedited basis.
If the point of contact designated by a Party is not part of that Party’s authority or
authorities responsible for international mutual assistance or extradition, the point of
contact shall ensure that it is able to co-ordinate with such authority or authorities on
an expedited basis.
Each Party shall ensure that trained and equipped personnel are available in order to
facilitate the operation of the network.
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