belgiquelex.be - Carrefour Bank of Legislation 3 AOUT 2012. - An Act to approve the Convention on Cybercrime, made in Budapest on 23 November 2001 (1) (2) (3)
ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1
er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Convention on Cybercrime, held in Budapest on 23 November 2001, will come out with its full effect.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given at Châteauneuf-de-Grasse, August 3, 2012.
ALBERT
By the King:
Deputy Prime Minister and Minister for Foreign Affairs,
D. REYNDERS
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2011-2012.
Senate.
Documents
Bill tabled on 22 February 2012, No. 5-1497/1.
Report, No. 5-1497/2.
Annales parliamentarians.
Discussion, meeting of May 31, 2012.
Vote, meeting of 31 May 2012.
House of Representatives.
Documents.
Project transmitted by the Senate, No. 53-2226/1.
Report on behalf of the Commission, No. 53-2226/2.
Text adopted in plenary and subject to Royal Assent, No. 53-2226/3.
Annales parliamentarians.
Discussion, meeting of June 14, 2012.
Vote, meeting of 14 June 2012.
CONVENTION ON CYBERCRIMINALITY
Preamble
Member States of the Council of Europe and other signatory States;
Considering that the purpose of the Council of Europe is to achieve a closer union between its members;
Recognizing the interest in intensifying cooperation with other States parties to the Convention;
Convinced of the need to lead, as a priority, a common criminal policy aimed at protecting the society of crime in cyberspace, including through the adoption of appropriate legislation and the improvement of international cooperation;
Aware of the profound changes caused by the continuous digitization, convergence and globalization of computer networks;
Concerned about the risk that computer networks and electronic information are also used to commit criminal offences and that evidence of such offences is stored and transmitted through these networks;
Recognizing the need for cooperation between States and the private industry in the fight against cybercrime, and the need to protect legitimate interests in the use and development of information technologies;
Believing that a successful fight against cybercrime requires greater, timely and effective international cooperation in criminal matters;
Convinced that this Convention is necessary to prevent acts that violate the confidentiality, integrity and availability of information systems, networks and data, as well as the fraudulent use of such systems, networks and data, by ensuring the criminalization of such behaviours, as described in this Convention, and the adoption of sufficient powers to enable an effective fight against these criminal offences, by facilitating detection, investigation and
Keeping in mind the need to ensure an adequate balance between the interests of repressive action and respect for fundamental human rights, as guaranteed in the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe (1950), in the International Covenant on Civil and Political Rights of the United Nations (1966), as well as in other international conventions applicable to human rights, which reaffirm the right to freedom of expression
Recognizing also the right to the protection of personal data, as specified, for example, by the Council of Europe Convention for the Protection of Persons with regard to the automated processing of personal data;
Considering the United Nations Convention on the Rights of the Child (1989) and the International Labour Organization Convention on the Worst Forms of Child Labour (1999);
Taking into account the existing conventions of the Council of Europe on cooperation in criminal matters, as well as other similar treaties concluded between the Member States of the Council of Europe and other States, and emphasizing that this Convention is intended to complement them with a view to making investigations and criminal proceedings involving criminal offences in relation to computer systems and data, as well as to enable the collection of electronic evidence of a criminal offence;
Welcoming the recent initiatives aimed at improving international understanding and cooperation in combating cyberspace crime, including the efforts of the United Nations, the OECD, the European Union and the G8;
Recalling the Recommendations of the Committee of Ministers No. R (85) 10 on the practical application of the European Convention on Mutual Assistance in Criminal Matters relating to the Letters for Monitoring of Telecommunications, No. R (88) 2 on measures to combat piracy in the field of copyright and related rights, no. R (87) 15 to regulate the use of personal data in the field of police
With regard to Resolution No. 1, adopted by the European Ministers of Justice during their 21
e Conference (Prague, 10 and 11 June 1997), which recommends that the Committee of Ministers support the activities related to cybercrime carried out by the European Committee on Criminal Problems (CDPC) in order to bring together national criminal legislation and allow the use of effective investigative means in the field of computer offences, as well as Resolution No. 3, adopted at the 23rd
e Conference of European Ministers of Justice (London, 8 and 9 June 2000), which encourages the parties to the negotiations to continue their efforts in order to find solutions enabling the greatest number of States to be parties to the Convention and recognizing the need for a rapid and effective mechanism of international cooperation that takes due account of the specific requirements of the fight against cybercrime;
Also taking into account the action plan adopted by the Heads of State and Government of the Council of Europe on the occasion of their 2
e Summit (Strasbourg, 10 and 11 October 1997) to find common responses to the development of new information technologies, based on Council of Europe standards and values,
The following agreed:
CHAPTER I
er. - Terminology
Article 1
er. - Definitions
For the purposes of this Convention,
a. the term "computer system" means any isolated device or set of interconnected or related devices, which ensures or which one or more elements, in the execution of a program, provide automated data processing;
b. the term "computer data" means any representation of facts, information or concepts in a form that lends itself to computer processing, including a program that ensures that a computer system performs a function;
c. the term "service provider" means:
i. any public or private entity that offers users of its services the opportunity to communicate through a computer system, and
ii. any other entity that handles or stores computer data for this communication service or its users.
d. "Traffic data" means any data relating to a communication passing through a computer system, produced by the latter as part of the communication chain, indicating the origin, destination, itinerary, time, date, size and duration of the communication or the underlying type of service.
CHAPTER II. - Action at the national level
Section 1
re. - Material criminal law
PART 1
er. - Offences against confidentiality, integrity
and availability of data and information systems
Article 2. - Illegal access
Each Party shall adopt the necessary legislative and other measures to criminalize, in accordance with its domestic law, the intentional and unrighteous access to any or part of a computer system. A Party may require that the offence be committed in violation of security measures, in the intention of obtaining computer data or in another criminal intent, or in connection with a computer system connected to another computer system.
Article 3. - Illegal interception
Each Party shall adopt the necessary legislative and other measures to criminalize, in accordance with its domestic law, the intentional and unrighteous interception, carried out by technical means, of computer data, during non-public transmissions, to, from or within a computer system, including electromagnetic emissions from a computer system carrying such data. A Party may require that the offence be committed in a criminal intent or in connection with a computer system connected to another computer system.
Article 4. - Addressing data integrity
1. Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, the intentional and without right to damage, erase, deteriorate, alter or delete computer data.
2. A Party may reserve the right to require that the conduct described in paragraph 1
er causes serious damage.
Article 5. - Addressing system integrity
Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, the serious, intentional and unrighteous interference with the operation of a computer system, by the introduction, transmission, damage, deteriorating, alteration or deletion of computer data.
Article 6. - Abuse of devices
1. Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, where they are committed intentionally and without law:
a. production, sale, obtaining for use, import, diffusion or other forms of provision:
i. a device, including a computer program, primarily designed or adapted to allow the commission of one of the offences established in accordance with sections 2 to 5 above;
ii. a password, access code or similar computer data allowing access to all or part of a computer system,
in the intention that they be used to commit any of the offences referred to in sections 2 to 5; and
b. possession of an element referred to in paragraphs a.i or ii above, in the intention that it be used to commit any of the offences referred to in sections 2 to 5. A Party may require in domestic law that a number of such elements be held in order for criminal liability to be engaged.
2. This article shall not be construed as imposing criminal liability when the production, sale, obtaining for use, import, dissemination or other forms of provision referred to in paragraph 1
er the purpose of this Article shall not be to commit an offence established in accordance with Articles 2 to 5 of this Convention, as in the case of an authorized trial or protection of a computer system.
3. Each Party may reserve the right not to apply paragraph 1 of this article, provided that this reservation does not relate to the sale, distribution or other disposition of the items referred to in paragraph 1
er.a.ii of this article.
PART 2. - Computer offences
Article 7. - Computer Falsification
Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, the intentional introduction, alteration, deletion or deletion of computer data without the right to an intentional, non-native data, with the intention that they are taken into account or used for legal purposes as if they were authentic, whether or not they are legible and not directly legible. A Party may require fraudulent intent or similar criminal intent to engage in criminal liability.
Article 8. - IT Fraude
Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, the intentional and without the right to cause property damage to others:
a. any introduction, alteration, deletion or deletion of computer data;
b. any form of impairment in the operation of a computer system,
in the intention, fraudulent or criminal, to obtain without right an economic benefit for yourself or for others.
PART 3. - Offences relating to content
Article 9. - Child pornography offences
1. Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, the following behaviours when committed intentionally and without law:
a. production of child pornography for dissemination through a computer system;
b. offering or making child pornography available through a computer system;
c. dissemination or transmission of child pornography through a computer system;
d. procuring or procuring child pornography to others through a computer system;
e. possession of child pornography in a computer system or a means of data storage.
2. For the purposes of paragraph 1
er above, the term "child pornography" includes any visually representative pornographic material:
a. a minor engaged in sexually explicit behaviour;
b. a person who appears as a minor engaged in sexually explicit behaviour;
c. realistic images representing a minor engaged in sexually explicit behaviour.
3. For the purposes of paragraph 2 above, the term "minor" means any person under the age of 18. However, a Party may require a minimum age limit of 16 years.
4. A Party may reserve the right not to apply, in whole or in part, paragraphs 1
erparagraphs (d) and (e) and 2 (b) and (c)
PART 4. - Offences related to violations
Intellectual Property and Related Rights
Article 10. - Offences related to violations
Intellectual Property and Related Rights
1. Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, infringements of intellectual property, as defined by the law of that Party, in accordance with its obligations under the Paris Act of 24 July 1971 to review the Bern Convention for the Protection of Literary and Artistic Works, of the Agreement on the Commercial Aspects of Intellectual Property Rights and
2. Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, any infringement of the related rights defined by the legislation of that Party, in accordance with its obligations under the International Convention for the Protection of Interpreters or Executors, Producers of Phonograms and Broadcasting Organizations (Roma Convention), the Agreement relating to the Commercial Aspects of Intellectual Property Rights and
3. A Party may, in well-defined circumstances, reserve the right not to impose criminal liability under paragraphs 1 and 2 of this article, provided that other effective remedies are available and that such a reservation does not affect the international obligations of that Party under the international instruments referred to in paragraphs 1
er and 2 of this article.
PART 5. - Other forms of accountability and sanctions
Article 11. - Tentative and complicity
1. Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, any complicity when committed intentionally for the commission of any of the offences established under Articles 2 to 10 of this Convention, with the intention that such an offence be committed.
2. Each Party shall adopt such legislative and other measures as may be necessary to criminalize, in accordance with its domestic law, any intentional attempt to commit any of the offences established under Articles 3 to 5, 7, 8, 9.1.a and 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. - Liability of legal persons
1. Each Party shall adopt such legislative and other measures as may be necessary to ensure that legal persons may be held liable for the offences established under this Convention, where they are committed on their behalf by any natural person acting either individually or as a member of a body of the legal person, who exercises executive power within the body, as follows:
a. on a representational authority of the legal person;
b. an authority to make decisions on behalf of the legal person;
c. on an authority to exercise control within the legal person.
2. In addition to cases already provided for in paragraph 1
er of this Article, each Party shall adopt such measures as may be necessary to ensure that a legal person may be held liable when the lack of supervision or control on the part of a natural person referred to in paragraph 1
er has made possible the commission of offences established under the Convention on behalf of the said legal person by a natural person acting under his or her authority.
3. According to the legal principles of the Party, the liability of a legal person may be criminal, civil or administrative.
4. This liability is established without prejudice to the criminal liability of natural persons who committed the offence.
Article 13. - Sanctions and measures
1. Each Party shall adopt the necessary legislative and other measures to ensure that criminal offences established under articles 2 to 11 are punishable by effective, proportionate and deterrent sanctions, including custodial penalties.
2. Each Party shall ensure that legal persons held responsible under Article 12 are subject to effective, proportionate and deterrent criminal or non-criminal measures, including monetary penalties.
Section 2. - Procedural law
PART 1
er. - Common provisions
Article 14. - Scope of application of procedural law measures
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 specific investigations or criminal proceedings.
2. Unless otherwise provided in Article 21, each Party shall apply the powers and procedures referred to in paragraph 1
er of this article:
a. criminal offences established in accordance with articles 2 to 11 of this Convention;
b. all other criminal offences committed through a computer system; and
c to the collection of electronic evidence of any criminal offence.
3. a. Each Party may reserve the right to apply the measures referred to in Article 20 only to the offences or categories of offences specified in the reservation, provided that the range of such offences or categories of offences is not less than that of the offences to which it applies the measures referred to in Article 21. Each Party shall consider limiting such a reservation to allow the widest possible application of the measure referred to in Article 20.
b. Where a Party, because of the restrictions imposed by its existing legislation at the time of adoption of this Convention, is not in a position to apply the measures referred to in Articles 20 and 21 to communications transmitted to a service provider's computer system:
i. that is implemented for the benefit of a closed user group, and
ii. that does not use public telecommunications networks and is not connected to 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 limiting such a reservation to allow the widest possible application of the measure referred to in Articles 20 and 21.
Article 15. - Conditions and backups
1. Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this section are subject to the conditions and safeguards provided for in its domestic law, which shall ensure adequate protection of human rights and freedoms, in particular rights established in accordance with its obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe (1950)
2. Where appropriate, in the light of the nature of the procedure or the authority concerned, these conditions and safeguards include, inter alia, judicial supervision or other forms of independent supervision, reasons for the application and limitation of the scope and duration of the power or procedure in question.
3. To the extent that this is consistent with the public interest, in particular with the proper administration of justice, each Party shall examine the effect of powers and procedures in this section on the legitimate rights, responsibilities and interests of third parties.
PART 2. - Rapid storage of stored computer data
Article 16. - Rapid storage 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 otherwise impose the rapid storage of specified electronic data, including traffic data, stored by a computer system, in particular where there are reasons to believe that such data are particularly susceptible to loss or modification.
2. When a Party applies paragraph 1
er above, by means of an injunction ordering a person to retain specified stored data in his or her possession or control, that Party shall adopt such legislative and other measures as may be necessary to require that a person maintain and protect the integrity of such data for as long as necessary, for a maximum of ninety days, in order to allow the competent authorities to obtain their disclosure. A Party may provide that such an injunction be renewed thereafter.
3. Each Party shall adopt such legislative and other measures as may be necessary to oblige the data custodian or another person responsible for retaining the data to keep the secret of the implementation of such procedures for the duration of its domestic law.
4. The powers and procedures mentioned in this article shall be subject to articles 14 and 15.
Article 17. - Conservation and partial disclosure
rapid traffic data
1. In order to ensure the retention of traffic data pursuant to Article 16, each Party shall adopt the necessary legislative and other measures:
a. to ensure the timely storage of these traffic data, that only one or more service providers participated in the transmission of this communication; and
b. to ensure the timely disclosure to the competent authority of the Party, or to a person designated by that authority, of a sufficient quantity of traffic data to allow the Party to identify service providers and the way in which the communication was transmitted.
2. The powers and procedures mentioned in this article shall be subject to articles 14 and 15.
PART 3. - Injunction to produce
Article 18. - Injunction to produce
1. Each Party shall adopt the necessary legislative and other measures to enable its competent authorities to order:
a. a person present in his or her territory to disclose the specified computer data, in his or her possession or control, that is stored in a computer system or computer storage medium; and
b. a service provider providing services in the territory of the Party, to disclose the data in its possession or under its control relating to subscribers and concerning such services.
2. The powers and procedures mentioned in this article shall be subject to articles 14 and 15.
3. For the purposes of this section, the term "subscriber data" means any information, in the form of computer data or in any other form, held by a service provider and relating to subscribers to its services, other than traffic or content data, and allowing to establish:
a. the type of communication service used, the technical arrangements made in this regard and the period of service;
b. the identity, postal or geographic address and telephone number of the subscriber, and any other access number, billing and payment data, available on the basis of a contract or service arrangement;
c. any other information relating to the location of the communication equipment, available on the basis of a contract or service arrangement.
PART 4. - Search and capture of stored computer data
Article 19. - Search and capture of stored computer data
1. Each Party shall adopt such legislative and other measures as may be necessary to enable its competent authorities to search or access in a similar manner:
a. a computer system or part of it and the computer data stored therein; and
b. a computer storage support to store data
on its territory.
2. Each Party shall adopt such legislative and other measures as may be necessary to ensure that, where its authorities search or access a specific computer system or part thereof in a similar manner, in accordance with paragraph 1
er.a, and have reason to believe that the data sought are stored in another computer system or in part of it located in its territory, and that these data are legally available from the initial system or available for this initial system, the said authorities are able to quickly extend the search or access in a way similar to the other system.
3. Each Party shall adopt such legislative and other measures as may be necessary to enable its competent authorities to capture or obtain in a similar manner the computer data for which access has been made pursuant to paragraphs 1
er or 2. These measures include the following prerogatives:
a. seize or obtain in a similar way a computer system or part thereof, or a computer storage medium;
b. produce and maintain a copy of these information technology data;
c. preserve the integrity of the relevant stored computer data;
d. render inaccessible or remove these computer data from the computer system consulted.
4. Each Party shall adopt such legislative and other measures as may be necessary to enable its competent authorities to order any person who is familiar with the operation of the computer system or the measures applied to protect the computer data that it contains to provide all the information reasonably necessary to enable the application of the measures referred to in paragraphs 1
er and 2.
5. The powers and procedures mentioned in this article must be submitted to articles 14 and 15.
PART 5. - Real-time data collection
Article 20. - Real-time collection of traffic data
1. Each Party shall adopt the necessary legislative and other measures to empower its competent authorities:
a. to be collected or registered by the application of existing technical means in its territory, and
b. require a service provider, as part of its existing technical capabilities:
i. to be collected or registered by the application of existing technical means in its territory, or
ii. to lend its assistance and assistance to the competent authorities to collect or record, in real time, traffic data associated with specific communications transmitted in its territory through a computer system.
2. Where a Party, on the basis of the established principles of its domestic legal order, cannot adopt the measures set out in paragraph 1.a, it may instead adopt the legislative and other measures necessary to ensure the real-time collection or recording of traffic data associated with specific communications transmitted in its territory by the application of existing technical means in that territory.
3. Each Party shall adopt such legislative and other measures as may be necessary to require a service provider to keep secrets as to whether any of the powers provided for in this article have been implemented and any information thereon.
4. The powers and procedures mentioned in this article shall be subject to articles 14 and 15.
Article 21. - Interception of content data
1. Each Party shall adopt the necessary legislative and other measures to empower its competent authorities with regard to a range of serious offences to be defined in domestic law:
a. to be collected or registered by the application of existing technical means in its territory, and
b. require a service provider, as part of its technical capacity:
i. to be collected or registered by the application of existing technical means in its territory, or
ii. to lend its assistance and assistance to the competent authorities to collect or record, in real time, data relating to the content of specific communications on its territory, transmitted through a computer system.
2. Where a Party, because of the principles established in its domestic legal order, cannot adopt the measures set out in paragraph 1.a, it may instead adopt the legislative and other measures necessary to ensure the real-time collection or recording of data relating to the content of specific communications transmitted in its territory by the application of existing technical means in that territory.
3. Each Party shall adopt such legislative and other measures as may be necessary to require a service provider to keep secrets as to whether any of the powers provided for in this article have been implemented and any information thereon.
4. The powers and procedures mentioned 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 its jurisdiction over any criminal offence established in accordance with Articles 2 to 11 of this Convention when the offence is committed:
a. on its territory; or
b. a ship flying 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 criminally punishable where it has been committed or if the offence falls within the territorial jurisdiction of any State.
2. Each Party may reserve the right not to apply, or apply only in specific cases or conditions, the rules of jurisdiction defined in paragraphs 1
er.b to 1
er.d of this article or in any part of these paragraphs.
3. Each Party shall adopt such measures as may be necessary to establish its jurisdiction over any offence referred to in Article 24, paragraph 1
erof this Convention, where the alleged perpetrator of the offence is present in his or her territory and cannot be extradited to another Party solely for his or her nationality, after an extradition request.
4. This Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with its domestic law.
5. Where a number of Parties claim jurisdiction over an alleged offence referred to in this Convention, the Parties concerned shall, where appropriate, consult in order to determine the best position to prosecute.
CHAPTER III. - International cooperation
Section 1
re. - General principles
PART 1
er. - General principles
on International Cooperation
Article 23. General principles
International Cooperation
Parties shall cooperate with each other, in accordance with the provisions of this chapter, in accordance with relevant international instruments on international cooperation in criminal matters, arrangements based on uniform or reciprocal legislation and their national law, to the widest extent possible, for the purposes of investigations or proceedings relating to criminal offences related to computer systems and data or to collect evidence, in electronic form, of a criminal offence.
PART 2. - Extradition principles
Article 24. - Extradition
1. a. This Article applies to extradition between Parties for criminal offences defined in accordance with Articles 2 to 11 of this Convention, provided that they are punishable under the laws of the two Parties concerned by deprivation of liberty for a period of not less than one year, or by a more severe penalty.
b Where a different minimum penalty is required, on the basis of an extradition treaty as applicable between two or more parties, including the European Extradition Convention (TEC 24), or an arrangement based on uniform or reciprocal legislation, the minimum penalty provided for by that treaty or arrangement shall apply.
2. The criminal offences described in paragraph 1
er of this Article shall be considered to be included as offences that may give rise to extradition in any extradition treaty existing between or among the Parties. Parties undertake to include such offences as offences that may give rise to extradition in any extradition treaty that may be concluded between or among them.
3. When a Party conditions extradition to the existence of a treaty and receives a request for extradition from another Party with which it has not entered into an extradition treaty, it may consider this Convention as a legal basis for extradition in respect of any criminal offence referred to in paragraph 1
er of this article.
4. Parties that do not condition extradition to the existence of a treaty recognize the criminal offences referred to in paragraph 1
er of this article as offences that may give rise to extradition.
5. Extradition shall be subject to the conditions prescribed by the domestic law of the requested Party or by the extradition treaties in force, including the grounds for which the requested Party may refuse extradition.
6. If extradition for a criminal offence referred to in paragraph 1
er of this article shall be refused only on the basis of the nationality of the person sought or because the requested Party considers itself competent for that offence, the requested Party shall submit the case, at the request of the requesting Party, to its competent authorities for the purposes of prosecution, and shall report, in due course, on the outcome of the case to the requesting Party. The authorities in question will make their decision and conduct the investigation and proceedings in the same manner as for any other offence of a comparable nature, in accordance with the legislation of that Party.
7. a. Each Party shall communicate to the Secretary General of the Council of Europe, at the time of signature or deposit of its instrument of ratification, acceptance, approval or accession, the name and address of each authority responsible for sending or receiving an application for extradition or provisional arrest, in the absence of a treaty.
b. The Secretary General of the Council of Europe shall establish and maintain a register of authorities so designated by the Parties. Each Party must ensure the accuracy of the data in the registry on an ongoing basis.
PART 3. - General principles on mutual assistance
Article 25. - General principles on mutual assistance
1. The Parties shall accord the widest possible assistance for the purposes of investigations or proceedings relating to criminal offences related to computer systems and data, or to collect evidence in electronic form of a criminal offence.
2. Each Party shall also adopt the necessary legislative and other measures to fulfil the obligations set out in articles 27 to 35.
3. Each Party may, in the event of an emergency, make a request for assistance or communications related to it by means of rapid communication, such as fax or e-mail, provided that these means provide sufficient security and authentication conditions (including, if necessary, encryption), with subsequent official confirmation if the requested State so requires. The requested State accepts the request and responds to it by any of these quick means of communication.
4. Unless otherwise expressly provided for in the articles of this chapter, mutual assistance shall be subject to the conditions established by the domestic law of the requested Party or by the applicable mutual assistance treaties, including the grounds on which the requested Party may refuse cooperation. The requested Party shall not exercise its right to refuse assistance in respect of the offences referred to in Articles 2 to 11 on the sole ground that the application relates to an offence that it considers to be of a fiscal nature.
5. Where, in accordance with the provisions of this chapter, the Requested Party is authorized to subordinate the existence of a double criminality, this condition shall be deemed to be satisfied if the conduct constituting the offence, for which the mutual assistance is required, is qualified as a criminal offence under its domestic law, whether or not the domestic law classifies the offence in the same category of offences or that it designates it by the same terminology or not.
Article 26. - Spontaneous information
1. A Party may, within the limits of its domestic law and in the absence of a prior request, provide to another Party information obtained under its own investigations where it considers that this may help the recipient Party to initiate or carry out investigations or proceedings relating to criminal offences established in accordance with this Convention, or where such information may result in a request for cooperation made by that Party under this chapter.
2. Before providing such information, the Party providing it may request that it remain confidential or that it be used only under certain conditions. If the recipient Party is not entitled to this request, it shall inform the other Party of this request, which shall then determine whether the information in question should nevertheless be provided. If the recipient Party accepts the information under the prescribed conditions, it will be bound by them.
PART 4. - Procedures for mutual assistance requests
in the absence of applicable international agreements
Article 27. - Procedures for mutual assistance requests
in the absence of applicable international agreements
1. In the absence of a mutual assistance treaty or arrangement based on uniform or reciprocal legislation in force between the requesting Party and the requested Party, the provisions of paragraphs 2 to 9 of this Article shall apply. They do not apply where such a treaty, arrangement or legislation exists, unless the Parties concerned decide to apply instead all or part of the rest of that article.
2. a. Each Party shall designate one or more central authorities to send or respond to, execute or transmit requests to the competent authorities for their execution;
b. Central authorities communicate directly with each other;
c. Each Party, at the time of signature or deposit of its instruments of ratification, acceptance, approval or accession, shall communicate to the Secretary-General of the Council of Europe the names and addresses of the authorities designated under this paragraph;
d. The Secretary General of the Council of Europe shall establish and maintain a register of the central authorities designated by the Parties. Each Party shall continuously monitor the accuracy of the data in the registry.
3. Requests for assistance under this Article shall be carried out in accordance with the procedure specified by the requesting Party, except where it is incompatible with the law of the requested Party.
4. In addition to the conditions or grounds for refusal under Article 25, paragraph 4, mutual assistance may be refused by the requested Party:
a. if the application relates to an offence that the requested Party considers to be political or political in nature; or
b. if the requested Party considers that access to the request would be likely to affect its sovereignty, security, public order or other essential interests.
5. The Requested Party may suspend the execution of the request if it may prejudice investigations or procedures conducted by its authorities.
6. Before denying or deferring its cooperation, the requested Party shall consider, after consultation with the requesting Party, whether it may be granted partial application or subject to such conditions as it deems necessary.
7. The requested Party shall promptly inform the requesting Party of its intention to provide the request for assistance. It must justify its possible refusal to do so or the possible adjournment of the application. The requested Party shall also inform the requesting Party of any reason that renders the execution of the assistance impossible or likely to delay it significantly.
8. The requesting Party may request that the requested Party keep confidential the fact and subject to any request made under this chapter, except to the extent necessary for the execution of that request. If the requested Party cannot grant this request for confidentiality, it shall promptly inform the requesting Party, which shall then determine whether the request must nevertheless be implemented.
9. a. In the event of an emergency, the judicial authorities of the requesting Party may direct to their counterparts in the requested Party requests for assistance or communications thereon. In such a case, copy is sent simultaneously to the central authorities of the requested Party through the central authority of the requesting Party.
b. Any request or communication made under this paragraph may be made through the International Criminal Police Organization (Interpol).
c. When a request has been made pursuant to paragraph (a) of this article and when the authority is not competent to process it, it shall forward it to the competent national authority and inform the requesting Party directly.
d. Requests or communications made pursuant to this paragraph that do not imply a coercion may be transmitted directly by the competent authorities of the requesting Party to the competent authorities of the requested Party.
e. Each Party may inform the Secretary General of the Council of Europe, at the time of signature or deposit of its instrument of ratification, acceptance, approval or accession, that, for reasons of effectiveness, the requests made under this paragraph shall be addressed to its central authority.
Article 28. - Confidentiality and restriction of use
1. In the absence of a mutual assistance treaty or arrangement based on uniform or reciprocal legislation in force between the requesting Party and the requested Party, the provisions of this Article shall apply. They do not apply where such a treaty, arrangement or legislation exists, unless the Parties concerned decide to apply instead all or part of this article.
2. The requested Party may subordinate the communication of information or material in response to a request:
a. provided that they remain confidential when the request for assistance could not be met in the absence of that condition; or
b. provided that they are not used for investigations or proceedings other than those set out in the application.
3. If the requesting Party cannot meet any of the conditions set out in paragraph 2, it shall promptly inform the requested Party, which then determines whether the information must be provided. If the requesting Party accepts this condition, it will be bound by it.
4. Any Party that provides information or material submitted to any of the conditions set out in paragraph 2 may require the other Party to provide information, in relation to that condition, with respect to the use of such information or equipment.
Section 2. - Specific provisions
PART 1
er. - Intermediate measures
Article 29. - Rapid storage of stored computer data
1. A Party may request another Party to order or otherwise impose the rapid storage of data stored by means of a computer system located in the territory of that other Party, and in respect of which the requesting Party intends to submit a request for assistance for the search or access by a similar means, for the seizure or obtaining of such data by a similar means, or for the disclosure of such data.
2. A conservation application made pursuant to paragraph 1 shall specify:
a. the authority requesting conservation;
b. the offence under investigation or criminal proceedings and a brief statement of the facts related to it;
c. stored computer data and the nature of their connection to the offence;
d. all available information to identify the custodian of stored computer data or the location of the computer system;
e. the need for the conservation measure; and
f. the fact that the Party intends to submit a request for mutual assistance for the search or access by a similar means, for the seizure or for obtaining by a similar means, or for the disclosure of stored computer data.
3. After receiving the request from another Party, the Requested Party shall take all appropriate measures to ensure that the specified data is stored promptly in accordance with its domestic law. In order to meet such a request, double criminality is not required as a precondition for conservation.
4. A Party that requires dual criminalization as a condition for responding to a mutual assistance request for search or similar access, seizure or obtaining by a similar means or the disclosure of stored data may, for offences other than those established in accordance with Articles 2 to 11 of this Convention, reserve the right to refuse the retention application under this Article in the event that it has reasons to believe that, at the time of disclosure, the dual condition of
5. In addition, a conservation application may be refused only:
a. if the application relates to an offence that the requested Party considers to be political or political in nature; or
b. if the requested Party considers that access to the request would be likely to affect its sovereignty, security, public order or other essential interests.
6. Where the Requested Party considers that simple storage will not be sufficient to ensure the future availability of the data, or will compromise the confidentiality of the inquiry of the Requesting Party, or otherwise harm the requesting Party, it shall promptly inform the Requesting Party, which then decides whether the request should be carried out.
7. Any conservation made in response to an application referred to in paragraph 1
er shall be valid for a period of not less than sixty days to allow the requesting Party to submit a request for the search or access by a similar means, for the seizure or for obtaining by a similar means, or for the disclosure of the data. After receiving such a request, the data must continue to be retained pending the adoption of a decision on the application.
Article 30. - Rapid disclosure of retained data
1. When, by applying for the storage of traffic data relating to a specific communication pursuant to Article 29, the Requested Party finds that a service provider in another State has participated in the transmission of that communication, the Requested Party shall promptly disclose to the requesting Party a sufficient amount of traffic data, for the purpose of identifying that service provider and the way in which the communication was transmitted.
2. Disclosure of traffic data pursuant to paragraph 1
er may be refused only:
a. if the application relates to an offence that the requested Party considers to be political or political in nature; or
b. if it considers that access to the application would be likely to affect its sovereignty, security, public order or other essential interests.
PART 2. - Investigative powers
Article 31. - Entraide regarding access to stored data
1. A Party may request another Party to search or access similarly, to seize or obtain similarly, to disclose data stored using a computer system located in the territory of that other Party, including data retained in accordance with Article 29.
2. The requested Party shall comply with the request by applying the international instruments, arrangements and legislation referred to in Article 23, and in accordance with the relevant provisions of this chapter.
3. The request must be met as quickly as possible in the following cases:
a. there are reasons to believe that the relevant data are particularly sensitive to the risks of loss or modification; or
b. the instruments, arrangements and legislation referred to in paragraph 2 provide for rapid cooperation.
Article 32. - Cross-border access to stored data, with consent or when accessible to the public
A Party may, without the authorization of another Party:
a. access to publicly accessible (open source) stored data, regardless of the geographic location of such data; or
b. access, or receive, by means of a computer system located in its territory, computer data stored in another State, if the Party obtains the legal and voluntary consent of the person legally authorized to disclose this data to it through that computer system.
Article 33. - Stupid in the collection
real-time traffic data
1. Parties agree to mutual assistance in the real-time collection of traffic data, associated with communications specified in their territory, transmitted through a computer system. Subject to the provisions of paragraph 2, such assistance shall be governed by the conditions and procedures laid down in domestic law.
2. Each Party shall grant such assistance at least in respect of criminal offences for which the real-time collection of traffic data would be available in a similar domestic case.
Article 34. - Interception support
data on content
Parties shall agree with each other, to the extent permitted by their applicable treaties and domestic laws, for the collection or recording in real-time of data relating to the content of specific communications transmitted through a computer system.
PART 3. - Network 24/7
Rule 35. - Network 24/7
1. Each Party designates a contact point that can be reached 24 hours a day, seven days a week, to provide immediate assistance for investigations into criminal offences related to computer systems and data, or to collect evidence in electronic form of a criminal offence. This assistance will include facilitation, or, where domestic law and practice permit, direct implementation of the following:
a. technical advice;
b. data retention in accordance with articles 29 and 30;
c. collection of evidence, provision of legal information, and location of suspects.
2. a. The point of contact of a Party shall have the means to correspond with the point of contact of another Party under an accelerated procedure.
b. If the point of contact designated by a Party does not depend on the authority or authorities of that Party responsible for international assistance or extradition, the point of contact shall ensure that it is able to act in coordination with that or those authorities, according to an expedited procedure.
3. Each Party will ensure that a trained and equipped staff is available to facilitate the operation of the network.
CHAPTER IV. - Final clauses
Article 36. - Signature and entry into force
1. This Convention is open for signature by the Member States of the Council of Europe and the non-member States that participated in its elaboration.
2. This Convention shall be 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
er and 2.
4. For any signatory State that subsequently expresses its consent to be bound by the Convention, 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 expression of its consent to be bound by the Convention, in accordance with the provisions of paragraphs 1
er 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 may, after consulting the Contracting States to the Convention and obtaining the unanimous consent, invite any non-member State of the Council, having not participated in its preparation, to accede to this Convention. The decision shall be taken by a majority under Article 20.d of the Statute of the Council of Europe and unanimously by representatives of the Contracting States entitled to sit on the Committee of Ministers.
2. For any State adhering to the Convention, in accordance with paragraph 1
er above, the Convention will 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 to the Secretary General of the Council of Europe.
Article 38. - Territorial application
1. Any State may, at the time of signature or at the time of deposit of its instrument of ratification, acceptance, approval or accession, designate the territory or territories to which this Convention shall apply.
2. Any State may, at any other time thereafter, by declaration addressed to the Secretary-General of the Council of Europe, extend the application of this Convention to any other territory designated in the declaration. The Convention shall enter into force in respect of that territory 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 pursuant to the preceding two paragraphs may be withdrawn, with respect to any territory designated in that declaration, by notification addressed to the Secretary-General of the Council of Europe. The withdrawal shall take effect 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 39. - Effects of the Convention
1. The purpose of this Convention is to supplement the applicable multilateral or bilateral treaties or agreements between the Parties, including the provisions:
- the European Extradition Convention, opened for signature on 13 December 1957 in Paris (STE No. 24);
- the European Convention on Mutual Assistance in Criminal Matters, opened for signature on 20 April 1959 in Strasbourg (STE No. 30);
- Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, opened for signature on 17 March 1978 in Strasbourg (STE No. 99).
2. If two or more Parties have already entered into an agreement or treaty on matters covered by this Convention, or if they have otherwise established their relations on these matters, or if they will do so in the future, they also have the ability to apply the agreement or treaty or to establish their relations accordingly, instead of this Convention. However, where the Parties establish their relations with respect to the substances covered by this Convention in a different manner than that provided for therein, they will do so in a manner that is not inconsistent with the purposes and principles of the Convention.
3. Nothing in this Convention affects other rights, restrictions, obligations and responsibilities of a Party.
Article 40. - Statements
By written declaration addressed to the Secretary General of the Council of Europe, any State may, at the time of signature or deposit of its instrument of ratification, acceptance, approval or accession, declare that it is presumed to require, where appropriate, one or more additional elements as provided for in Articles 2, 3, 6, paragraph 1
er.b, 7, 9, paragraph 3, and 27, paragraph 9.e.
Article 41. - Federal Clause
1. A federal State may reserve the right to honour the obligations contained in Chapter II of this Convention to the extent that they are consistent with the fundamental principles governing the relations between its central government and the constituent States or other similar territorial entities, provided that it is in a position to cooperate on the basis of Chapter III.
2. When making a reservation under paragraph 1
era federal State shall not use the terms of such a reservation to substantially exclude or diminish its obligations under Chapter II. In any event, it has extensive and effective means to implement the measures provided for in that chapter.
3. With regard to the provisions of this Convention, the application of which falls within the legislative competence of each of the constituent States or other similar territorial entities, which are not, under the constitutional system of the federation, required to take legislative measures, the federal government shall, with its favourable opinion, bring such provisions to the attention of the competent authorities of the constituent States, encouraging them to adopt appropriate measures to implement them.
Article 42. - Reservations
By written notification addressed to the Secretary General of the Council of Europe, any State may, at the time of signature or deposit of its instrument of ratification, acceptance, approval or accession, declare that it shall prevail over the reservation or reservations provided for in Article 4, paragraph 2, to Article 6, paragraph 3, to Article 9, paragraph 4, to Article 10, paragraph 3, to Article 11, paragraph 3,
er. No other reservation can be made.
Article 43. - Status and withdrawal of reservations
1. A Party that has made a reservation in accordance with Article 42 may withdraw it in whole or in part by notification addressed to the Secretary General of the Council of Europe. Such withdrawal shall take effect on the date of receipt of such notification by the Secretary-General. If the notification indicates that the withdrawal of a reservation must take effect on a specific date, and if that date is after the date on which the Secretary-General receives the notification, the withdrawal shall take effect at that later date.
2. A Party that made a reservation such as those referred to in Article 42 withdraws that reservation, in whole or in part, as soon as circumstances permit.
3. The Secretary-General of the Council of Europe may periodically request Parties that have made one or more reservations such as those mentioned in Article 42 of the information on the prospects for their withdrawal.
Article 44. - Amendments
1. Amendments to this Convention may be proposed by each 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 that have taken part in the elaboration of this Convention, and to any State that has acceded to or has been invited to accede to it, in accordance with the provisions of Article 37.
2. Any amendment proposed by a Party shall be communicated to the European Committee for Criminal Problems (CDPC), which shall submit its opinion to the Committee of Ministers on the amendment.
3. The Committee of Ministers shall consider the proposed amendment and the notice submitted by the SCCP and, after consultation with non-member States 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 communicated to the Parties for acceptance.
5. Any amendment adopted in accordance with paragraph 3 of this article shall enter into force on the thirtieth day after all Parties have informed the Secretary-General of their acceptance.
Article 45. - Settlement of disputes
1. The European Committee for Criminal Problems of the Council of Europe (CDPC) is kept informed of the interpretation and application of this Convention.
2. In the event of a dispute between the Parties on the interpretation or application of this Convention, the Parties shall endeavour to reach a settlement of the dispute by negotiation or by any other peaceful means of their choice, including the submission of the dispute to the SCCP, an arbitral tribunal that shall take decisions that bind the Parties to the dispute, or to the International Court of Justice, in accordance with an agreement between the Parties concerned.
Article 46. - Concertation of the Parties
1. Parties shall consult periodically, as appropriate, to facilitate:
a. the effective use and implementation of this Convention, including the identification of any problems in this regard, as well as the effects of any declaration or reservation made in accordance with this Convention;
b. the exchange of information on important legal, political or technical developments in the field of computer crime and the collection of evidence in electronic form;
c. consideration of the possibility of supplementing or amending the Convention.
2. The European Committee for Criminal Problems (CDPC) is kept periodically informed of the outcome of the consultations referred to in paragraph 1.
3. CPC shall facilitate, as appropriate, the consultations referred to in paragraph 1 and adopt the necessary measures to assist Parties in their efforts to supplement or amend the Convention. At the latest, following a three-year period from the date of entry into force of this Convention, the SCCP shall, in cooperation with the Parties, undertake a review of all provisions of the Convention and propose, as appropriate, the appropriate amendments.
4. Except where the Council of Europe supports them, the costs incurred by applying the provisions of paragraph 1
er are supported by Parties, in the way they determine.
5. Parties shall be assisted by the Secretariat of the Council of Europe in the performance of their functions under this Article.
Article 47. - Denunciation
1. Any Party may, at any time, denounce this Convention by notification to the Secretary-General of the Council of Europe.
2. The denunciation shall take effect 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.
Rule 48. - Notification
The Secretary General of the Council of Europe shall notify the Member States of the Council of Europe, the non-member States that have taken part in the elaboration of this Convention, and any State that has acceded to or has been invited to accede to it:
a. any signature;
b. the deposit of any instrument of ratification, acceptance, approval or accession;
c. any effective date of this Convention in accordance with its Articles 36 and 37;
d. any statement made under section 40 or any reservation made under section 42;
e. any other act, notification or communication relating to this Convention.
In faith, the undersigned, duly authorized to do so, have signed this Convention.
Done in Budapest, on 23 November 2001, in French and English, both texts being equally authentic, in a single copy which will be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies thereof to each member State of the Council of Europe, to the non-member States that participated in the elaboration of the Convention and to any State invited to accede to it.
BELGIUM ROYAUME
RESERVES
In accordance with Article 22 of the Convention, the Government of Belgium reserves the possibility to apply Article 22.1c of the Convention only if the following specific condition is fulfilled: Article 36 of the Act of 27 June 1937 concerning the regulation of air navigation considers the offences committed on board a Belgian aircraft in flight to be committed in Belgium.
In accordance with Article 42 of the Convention, Belgium reserves the right to apply Article 22.1.d of the Convention only to the Belgian person who has committed a criminal offence outside the territory of the Kingdom, where the latter is classified as a crime or offence under Belgian law and that the act is punishable by the law of the country where it was committed and that its author is found in Belgium. Belgium reserves the right to prosecute, if the victim of the offence is foreign, only in the event of a prior complaint of the offence, his family or an official opinion of the foreign authority from the place of the offence.
BELGIUM ROYAUME
Statements
In accordance with Article 2 of the Convention, the Government of Belgium declares that it does not criminalize the behaviours provided for in Article 2, with respect to the "internal hacking" provided for in Article 550bis, § 2 of the Criminal Code, only when such behaviour is committed in a fraudulent intention or intended to harm.
In accordance with Article 7 of the Convention, the Government of Belgium declares to criminalize the behaviours provided for in Article 7 only when they are committed in fraudulent intent or intended to harm.
In accordance with Article 24.7.a of the Convention, the Government of Belgium declares that the authority responsible for sending or receiving a request for extradition or provisional arrest, in the absence of a treaty, is the Federal Public Service Justice, International Criminal Cooperation Branch, Boulevard de Waterloo 115, 1000 Brussels, fax: +32 (0)2 210 57 98 (until the end of 2012).
In accordance with Article 27.2 of the Convention, the Government of Belgium declares that the authority responsible for sending or responding to requests for assistance, executing or transmitting them to the competent authorities for their execution is the Federal Public Service Justice, International Criminal Cooperation Branch, Boulevard de Waterloo 115, 1000 Brussels, fax: +32 (0)2 210 57 98 (until the end of 2012).
In accordance with Article 35 of the Convention, the Belgian Government shall designate as a point of contact 24/7 the following service:
Federal Judicial Police
Direction for Combating Economic and Financial Crime
Federal Computer Crime Unit (FCCU)
Tel : +32-2-743-73-84 24 hours a day, 7 days a week.
+32-2-743-74-74 (Secretariat) Monitored during work hours.
Fax: +32-2-733-56-16 Must phone prior to sending a fax.
E-mail : Permanence@fccu.be 24 hours a day, 7 days a week (Must phone prior to sending an e-mail) .
Convention on Cybercrime, held in Budapest on 23 November 2001
