Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister for Foreign Affairs,
In the light of articles 52 to 55 of the Constitution ;
In view of Act No. 2005-493 of 19 May 2005 authorising the approval of the Convention on Cybercrime and the Additional Protocol to this Convention on the criminalisation of acts of a racist and xenophobic nature committed through systems IT;
In light of the amended Decree No. 53-192 of 14 March 1953 on the ratification and publication of the international commitments entered into by France;
In view of Decree No. 67-636 of 23 July 1967 on the publication of the Convention European mutual assistance in criminal matters of 20 April 1959;
Having regard to Decree No 74-360 of 3 May 1974 on the publication of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950, Its Additional Protocols Nos. 1, 3, 4 and 5, signed on 20 March 1952, 6 May 1963, 16 September 1963 and 20 January 1966, as well as declarations and reservations made by the Government of the French Republic upon ratification ;
In view of Decree No. 74-743 of 21 August 1974 on the publication of the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, completed in Paris on 4 May 1896, revised in Berlin on 13 November 1908, completed at Bern on 20 March 1914 and revised in Rome on 2 June 1928, in Brussels on 26 June 1948, in Stockholm on 14 July 1967 and in Paris on 24 July 1971;
In view of Decree No. 81-76 of 29 January 1981 on the publication of the International Covenant on Rights Civil and political, open for signature in New York on 19 December 1966;
In light of Decree No. 86-736 of 14 May 1986 on the publication of the European Convention on Extradition, made in Paris on 13 December 1957;
In view of Decree No. 88-234 of 9 March 1988 for the publication of the International Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, done in Rome on October 26, 1961;
In light of Decree No. 91-386 of the 17 April 1991 on the publication of the Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, done in Strasbourg on 17 March 1978 and signed by France on 28 March 1990,
Décrète:
The Convention on Cybercrime, made in Budapest on 23 November 2001, will be published in the Official Gazette of the Republic French.
The Prime Minister and the Minister for Foreign Affairs shall each be responsible for The execution of this Decree, which shall be published in the Official Journal of the French Republic.
A N N E X E
CONVENTION ON CYBERCRIMINALITY
Preamble
Council of Europe member states and other signatory states,
Considering that the goal of the Council of Europe is to achieve a closer union among its members;
Recognizing the importance of intensifying cooperation with other States parties to the Convention;
Convinced of the need to pursue, as a matter of priority, a common criminal policy aimed at protecting the society from crime in cyberspace, In particular through the adoption of appropriate legislation and the improvement of international cooperation;
Conscious of the profound changes brought about by digitalisation, convergence and the permanent globalisation of computer networks ;
Concerned about the risk that computer networks and electronic information will also be used to commit criminal offences and that evidence of such infringements is stored and transmitted through these networks ;
Recognizing the need for cooperation between states and private industry in the fight against cybercrime, and the need to protect legitimate interests in the use and development of information technology ;
Believing that a well-fought fight against cybercrime requires international cooperation in criminal, rapid and effective criminal matters;
Convinced that this Convention is necessary to prevent acts affecting the The confidentiality, integrity and availability of computer systems, networks and data, as well as the fraudulent use of such systems, networks and data, by ensuring the criminalisation of such behaviour, as described in Convention, and the adoption of sufficient powers to enable an effective fight against such criminal offences, by facilitating detection, investigation and prosecution, both nationally and internationally, and by providing for Material provisions for rapid and reliable international cooperation;
Bearing in mind the need to ensure an appropriate balance between the interests of law enforcement and respect for fundamental human rights, such 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 others International human rights conventions, which reaffirm the right not to be concerned for their opinions, the right to freedom of expression, including the freedom to seek, obtain and communicate Information and ideas of all kinds, regardless of frontiers, as well as the right to privacy;
Also aware of the right to protection of personal data, as specified, for example, by the Convention 1981 of the Council of Europe for the protection of persons with regard to the automatic processing of personal data;
Considering the United Nations Convention on the Rights of the Child (1989) and the Convention International work on the worst forms of child labour (1999);
Taking into account the existing Council of Europe conventions on cooperation in criminal matters, as well as other similar treaties concluded between member states The Council of Europe and other States, and stressing that the purpose of this Convention is to supplement them with a view to making investigations and criminal proceedings relating to criminal offences in relation to systems and Computer data, as well as the collection of electronic evidence of a criminal offence;
Welcoming the recent initiatives aimed at improving international understanding and cooperation in the fight against Crime in cyberspace, including actions by the United Nations, the OECD, the European Union and the G8;
Recalling the Recommendations of the Committee of Ministers R (85) 10 on the practical application of the Convention European mutual legal assistance in criminal matters relating to letters rogatory for the supervision 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 police sector, No. R (95) 4 on the protection of personal data in the field of telecommunications services, in particular with regard to services R (89) 9 on computer-related crime, which provides national legislators with guidelines for defining certain computer-related offences, as well as R (95) 13 on procedural problems Information technology;
Having regard to Resolution No. 1, adopted by the European Ministers of Justice at their 21st Conference (Prague, 10 and 11 June 1997), which recommends that the Committee of Ministers support the Activities relating to cybercrime carried out by the European Committee on Crime Problems (CDPC) in order to approximate national criminal laws and to allow the use of effective investigative means IT, as well as Resolution No. 3, adopted at the 23rd Conference of European Ministers of Justice (London, 8 and 9 June 2000), which encourages the parties to negotiations to continue their efforts to find solutions Allowing the greatest number of States to be parties to the Convention and recognising the need for a rapid and effective mechanism for international cooperation which takes due account of the specific requirements of the fight against Cybercrime;
Taking also into account the action plan adopted by the Heads of State and Government of the Council of Europe at their 2nd Summit (Strasbourg, 10 and 11 October 1997) in order to find common responses to the Development of new information technologies, based on Council of Europe standards and values,
Have agreed as follows:
Chapter I
Terminology
Article 1
Definitions
For the purposes of this Convention,
has the expression " Computer system " Means any insulated device or set of interconnected or related devices, which ensures or which one or more elements ensure, in execution of a program, automated processing of data;
b the expression " 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 expression " Service provider " Means:
i any public or private entity that provides the users of its services with the ability to communicate with a computer system, and
ii any other entity that processes or stores computer data for that service Of communication or its users,
d " Traffic data " Means any data relating to a communication passing through a computer system, produced by the computer system as part of the communication chain, indicating the origin, destination, itinerary, time, date, size and Duration of the communication or the type of underlying service.
Chapter II
Measures to be taken at the national level
Section 1
Hardware criminal law
TITLE I
OFFENCES AGAINST LA CONFIDENTIALITY, INTEGRITY AND AVAILABILITY OF DATA AND COMPUTER SYSTEMS
Article 2
Illegal Access
Each Party shall adopt such legislative and other measures as may be necessary To make a criminal offence, in accordance with its internal law, the intentional and unconditional access to all or part of a computer system. A Party may require that the offence be committed in violation of security measures, for the purpose of obtaining computer data or other criminal intent, or in connection with one computer system connected to another Computer system.
Article 3
Illegal interception
Each Party shall adopt such legislative and other measures as may be necessary to establish a criminal offence in accordance with its law Internal, intentional and unauthorized interception, by technical means, of computer data, in non-public transmissions, to, from or within a computer system, including broadcasts Electromagnetic data from a computer system carrying such computer data. A Party may require that the offence be committed in a criminal intent or in relation to a computer system connected to another computer system.
Article 4
Reached to the integrity of the Data
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as a criminal offence, in accordance with its domestic law, the fact, intentional and without the right to damage, delete, Deteriorate, alter or delete computer data.
2 A Party may reserve the right to require that the behaviour described in paragraph 1 cause serious damage.
Article 5
Infringement The integrity of the system
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, in accordance with its domestic law, the serious, wilful and unlawful interference with the Operation of a computer system, by the introduction, transmission, damage, deletion, alteration or deletion of computer data.
Article 6
Abus of devices
1 Each Party shall adopt such legislative and other measures as may be necessary to establish a criminal offence, in accordance with its domestic law, when committed intentionally and without the right:
Production, sale, obtaining for use, import, distribution or other forms of making available:
i of a device, including a computer program, primarily designed or adapted to enable the commission of one Offences established in accordance with sections 2 to 5 above;
ii a password, access code, or similar computer data to access all or part of a computer system,
with the intent that they are 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, with the intention that it be used to commit any of the offences referred to in Articles 2 to 5. A Party may require in domestic law that a certain number of these elements be held for criminal liability.
2 This article cannot be interpreted as imposing criminal liability when the production, The sale, obtaining for use, importation, distribution or other forms of making available referred to in paragraph 1 of this Article shall not be intended to commit an offence established in accordance with Articles 2 to 5 of the
3 Each Party may reserve the right not to apply paragraph 1 of this Article, provided that this reservation does not cover the Sale, distribution or other provision of the elements referred to in paragraph 1. A. Ii of this Article.
TITLE II
INFORMATICS INFRACTIONS
Article 7
Computer Falsification
Each Party shall adopt such legislative and other measures as may be necessary for Criminally criminating, in accordance with its domestic law, the intentional introduction, alteration, deletion or deletion of computer data, resulting in non-authentic data, with the intention of Taken into account or used for legal purposes as if they were authentic, whether or not they are directly readable and intelligible. A Party may require a fraudulent intention or similar criminal intent for criminal liability.
Article 8
Computer Fraud
Each Party shall adopt the Legislative and other measures which are necessary to establish as criminal offences, in accordance with its domestic law, intentional and without the right to cause heritage damage to others:
has by any introduction, alteration, Erasure or deletion of computer data;
b by any form of infringement of the operation of a computer system,
in the intention, fraudulent or criminal, of obtaining without rights an economic benefit for oneself or for Others.
TITLE III
INFRACTIONS WITH CONTENT
Article 9
Offences related to child pornography
1 Each Party shall adopt legislative and other measures Prove necessary in order to criminally criminally commit the following behaviour when committed intentionally and without the right:
has the production of child pornography for dissemination by A computer system;
b the provision or provision of child pornography through a computer system;
c the distribution or transmission of child pornography through a computer system;
d Procuring or procuring child pornography through a computer system;
e possessing child pornography in a computer system or a means of storing computer data.
2 To For the purposes of paragraph 1 above, the term " Child pornography " Includes any pornographic material that visually represents:
has a minor engaging in sexually explicit behaviour;
b a person who appears to be a minor sexually explicit;
c Realistic images representing a minor engaging in sexually explicit behaviour.
3 For the purposes of paragraph 2 above, the term " Minor " Means any person under the age of 18 years. A Party may, however, require a lower age limit, which must be at least 16 years.
4 A Party may reserve the right not to apply, in whole or in part, paragraphs 1 (d) and (e) and (2) (b) and (c
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, in accordance with its domestic law, infringements of intellectual property, as defined in the legislation of that Party, In accordance with its obligations under the Paris Act of 24 July 1971 on the revision of the Berne Convention for the Protection of Literary and Artistic Works, of the Agreement on the Commercial Aspects of Intellectual property rights and the WIPO intellectual property treaty, with the exception of any moral rights conferred by such conventions, when such acts are committed deliberately, on a commercial scale and through a system IT.
2 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, in accordance with its domestic law, infringement of related rights as defined in the legislation of that Party, In accordance with its obligations under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Convention of Rome), the Agreement on the Commercial Aspects of Intellectual Property Rights and the WIPO Performances and Phonograms Treaty, with the exception of any moral rights conferred by those Conventions, where such Acts are committed deliberately, on a commercial scale and by means of a computer system.
3 A Party may, under very limited 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 in accordance with the international instruments referred to in the Paragraphs 1 and 2 of this article.
TITLE V
OTHER FORM OF RESPONSIBILITY
AND SANCTIONS
Article 11
Attempt and complicity
1 Each Party shall adopt the legislative measures and In accordance with its domestic law, any complicity when committed intentionally for the commission of one of the offences established pursuant to 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 establish as criminal offences, in accordance with its domestic law, any Intentional attempt to commit any of the offences established pursuant to 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 This Article.
Article 12
Liability of legal persons
1 Each Party shall adopt such legislative and other measures as may be necessary to enable legal persons to Be held liable for offences established under this Convention when committed on their behalf by any natural person acting either individually or as a member of an organ of the person Moral, which exercises a leadership power within the body, founded:
has a power of representation of the legal person;
b on an authority to make decisions on behalf of the legal person;
c on an authority to exercise a Control within the legal entity.
2 In addition to the cases already provided for in paragraph 1 of this Article, each Party shall adopt such measures as may be necessary to ensure that a legal person can be held responsible when The absence of supervision or control by a natural person referred to in paragraph 1 has made it possible for the commission of offences established pursuant to this Convention on behalf of that legal person to In
with the legal principles of the Party, the liability of a legal entity may be criminal, civil or administrative.
4 Such liability shall be without prejudice to the Criminal liability of the natural persons who committed the offence.
Article 13
Sanctions and measures
1 Each Party shall adopt such legislative and other measures as may be necessary for Criminal offences established pursuant to Articles 2 to 11 be punishable by effective, proportionate and dissuasive penalties, including custodial sentences.
2 Each Party shall ensure that legal persons Officials under Article 12 shall be subject to effective, proportionate and dissuasive criminal or non-criminal sanctions or measures, including monetary penalties.
Section 2
Right Procedural
TITLE I
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 the purpose of specific criminal investigations or proceedings.
2 Except as otherwise provided in Article 21, each Party shall apply the powers and procedures referred to in the paragraph 1 of this Article:
to criminal offences established in accordance with Articles 2 to 11 of this Convention;
b to all other criminal offences committed by means of a computer system; and
c to the collection of evidence
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 Offences or categories of offences are no more than that of the offences to which they apply the measures referred to in Article 21. Each Party shall consider limiting such a reservation so as to permit the widest possible application of the measure referred to in Article 20.
b Where a Party, by reason of the restrictions imposed by its legislation in force at the Time for the adoption of this Convention, shall not be able to apply the measures referred to in Articles 20 and 21 to communications transmitted in a computer system of a service provider:
i which is implemented for the Profit of a closed user group, and
ii that does not use public telecommunications networks and is not connected to another computer system, be it public or private,
this Party may reserve the right not to Apply these measures to such communications. Each Party shall consider limiting such a reservation so as to permit the widest possible application of the measure referred to in Articles 20 and 21.
Article 15
Conditions and safeguards
1 Each Party shall ensure that the establishment, implementation and enforcement 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) and the International Covenant on Civil and Political Rights of the United Nations (1966), or other relevant international human rights instruments, which must incorporate the principle of Proportionality.
2 Where appropriate, having regard to the nature of the procedure or power concerned, such conditions and safeguards shall include, inter alia, judicial supervision or other forms of independent supervision, To justify the application and limitation of the scope and duration of the power or procedure in question.
3 To the extent that this is in the public interest, in particular the proper administration of justice, each Part examines the effect of the powers and procedures in this section on the legitimate rights, responsibilities and interests of third parties.
TITLE II
RESTRICTED DATA RAPID
STORAGE DATA
Item 16
Rapid retention 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 impose another The rapid retention of specified electronic data, including traffic data, stored by means of a computer system, in particular where there is reason to believe that such data are particularly susceptible to Loss or modification.
2 Where a Party makes application of paragraph 1 above, by means of an injunction ordering a person to keep specified stored data in its possession or control, that Party shall Adopt such legislative and other measures as may be necessary to oblige that person to maintain and protect the integrity of said data for as long as necessary, to the maximum of ninety days, in order to permit The competent authorities to obtain their disclosure. A Party may provide for such an injunction to be renewed thereafter.
3 Each Party shall adopt such legislative and other measures as may be necessary to require the custodian of the data or other person in charge of maintaining The
and procedures referred to in this Article shall be subject to Articles 14 and 15.
The powers and procedures referred to in this Article shall be subject to Articles 14 and 15.
1 In order to ensure the retention of traffic data pursuant to Article 16, each Party shall adopt the Legislative and other measures that are necessary:
to ensure the rapid retention of traffic data, whether one or more service providers have participated in the transmission of this communication; And
b to ensure prompt disclosure to the competent authority of the Party, or to a person designated by that authority, of sufficient traffic data to permit identification by the Party of suppliers of The
and procedures referred to in this Article must be submitted to Articles 14 and 15.
TITLE III
INJUNCTION OF PRODUCE
Article 18
Injunction to produce
1 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order
Its territory to communicate the specified computer data, in its possession or control, that are stored in a computer system or computer storage medium; and
b to a service provider offering The powers and procedures referred to in this Article shall be subject to the provisions of this Article.
2 The powers and procedures referred to in this Article must be submitted to the Articles 14 and 15.
3 For the purposes of this Article, the expression " 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 of its services, other than traffic or content data, and Establish:
has 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 number Access, billing and payment data, available on the basis of a contract or service arrangement;
c any other information relating to the location of the communications equipment, available on the Base of a contract or service arrangement.
TITLE IV
PERQUISITION AND DATA SEIZURE
STORED INFORMATION
Article 19
Search and enter 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 to a computer system or part thereof, and to Computer data stored there; and
b to a computer storage medium for storing
computer data on its territory.
2 Each Party shall adopt the necessary legislative and other measures To ensure that, when its authorities search or access in a manner similar to a specific computer system or part thereof, in accordance with paragraph 1. A, and have reason to believe that the data sought is stored in another computer system or part thereof located in its territory, and that the data are legally accessible from the initial system or Available for this initial system, the said authorities shall be able to rapidly extend the search or access in a similar way to the other system.
3 Each Party shall adopt such legislative and other measures as may be necessary To empower its competent authorities to seize or obtain in a similar manner the computer data for which access has been made pursuant to paragraphs 1 or 2. These measures include the following prerogatives:
Obtain in a similar way a computer system or part thereof, or a computer storage medium;
b realize and retain a copy of this computer data;
c preserve the integrity of stored computer data
4 Each Party shall adopt such legislative and other measures as may be necessary to enable its competent authorities to order To any person who is familiar with the operation of the computer system or the measures applied to protect the computer data which it contains to provide all the information reasonably necessary, in order to enable the application of Measures referred to in paragraphs 1 and 2.
5 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
TITLE V
COLLECTION IN REAL TIME
OF DATA DATA
Article 20
Real-time traffic data collection
1 Each Party adopts legislative and other measures that are necessary to empower its competent authorities:
has to collect or register by The application of existing technical means on its territory, and
b to oblige a service provider, within the framework of its existing technical capabilities:
i to collect or register by applying existing technical means On its territory, or
ii to lend to the competent authorities its assistance and assistance in collecting or recording, in real time,
traffic data associated with specific communications transmitted over its territory By means of a computer system.
2 Where a Party, because 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 Shall be necessary to ensure the real-time collection or recording of traffic data associated with specific communications transmitted within its territory by the application of existing technical means on this Territory.
3 Each Party shall adopt such legislative and other measures as may be necessary to oblige a service provider to keep secret the fact that any of the powers provided for in this Article have been executed as well as Any information on this subject.
4 The powers and procedures referred to in this section must be referred to in sections 14 and 15.
Section 21
Content Data Interception
1 Each Party shall adopt such legislative and other measures as may be necessary to enable its competent authorities with regard to a range of serious infringements to be defined in domestic law:
has to collect or register by The application of existing technical means on its territory, and
b to oblige a service provider, within the framework of its technical capabilities:
i to collect or register through the application of existing technical means on its Territory, or
ii to lend to the competent authorities its assistance and assistance in collecting or recording,
in real time, the data relating to the specific communications content on its territory, transmitted by means of a
2 Where a Party, due to the principles established in its domestic legal order, cannot adopt the measures set out in paragraph 1. A, it may instead adopt such legislative and other measures as may be necessary to ensure the collection or recording in real time of the data relating to the content of specific communications transmitted on 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 oblige a service provider to keep secret the fact that any of the powers And any information on this subject.
4 The powers and procedures referred to in this Article shall be submitted to Articles 14 and 15.
Section 3
Jurisdiction
Article 22
Competence
1 Each Party shall adopt such legislative and other measures as may be necessary to establish its jurisdiction in respect of any criminal offence established in accordance with Articles 2 to 11 of this Convention, where the offence is committed:
on its territory; or
b on board a ship flying the flag of that Party; or
c on board an aircraft registered under the laws of that Party; or
d By one of its nationals, if the offence is criminally punishable where it has been committed or if the offence is not within the territorial jurisdiction of any State.
2 Each Party may reserve the right not to apply or to apply In specific cases or conditions, the rules of jurisdiction laid down in paragraphs 1. B to 1. D of this Article or any part thereof.
3 Each Party shall adopt such measures as may be necessary to establish its jurisdiction in respect of any infringement referred to in Article 24 (1) of this Article. Convention, where the alleged offender is present in his territory and cannot be extradited to another Party on the sole basis of his nationality, after an extradition request.
4 This Convention does not exclude any jurisdiction In criminal proceedings by a Party in accordance with its domestic law.
5 Where several Parties claim jurisdiction over an alleged offence covered by this Convention, the Parties concerned shall consult each other, where such In order to determine how best to prosecute.
Chapter III
International Cooperation
Section 1
General Principles
TITLE I
GENERAL PRINCIPLES FOR
-OPERATION INTERNATIONAL
Article 23
General Principles of International Cooperation
The Parties shall cooperate with each other, in accordance with the provisions of this Chapter, in application of the instruments 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 Procedures for criminal offences relating to computer systems and data or for collecting evidence in electronic form of a criminal offence.
TITLE II
PRINCIPLES OF EXTRADITION
Article 24
Extradition
1 a This Article applies to extradition between the 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 a custodial sentence for a maximum period of at least 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 Convention on Extradition (ETS No. 24), or an arrangement based on uniform or reciprocal legislation, the minimum penalty laid down in that Treaty
2 The criminal offences described in paragraph 1 of this article shall be considered to be included as extraditable offences in any extradition treaty existing between or among the Parties. The Parties undertake to include such offences as extraditable offences in any extradition treaty that may be concluded between or among them.
3 Where a Party makes extradition conditional on the existence of a And receives a request for the extradition of another Party with which it has not concluded an extradition treaty, it may consider this Convention as the legal basis for extradition in relation to any criminal offence Referred to in paragraph 1 of this Article.
4 Parties which do not make extradition conditional on the existence of a treaty shall recognize the criminal offences referred to in paragraph 1 of this Article as extraditable offences Extradition.
5 Extradition shall be subject to the conditions laid down in the domestic law of the requested Party or by the extradition treaties in force, including the grounds on which the requested Party may refuse Extradition.
6 If extradition for a criminal offence referred to in paragraph 1 of this article is refused only on the basis of the nationality of the person sought or because the requested Party considers it competent for that purpose The requested Party shall submit the case, at the request of the requesting Party, to its competent authorities for the purpose of prosecution, and shall report, in due course, to the applicant Party. The authorities shall take their decision and conduct the investigation and the proceedings in the same manner as for any other offence of a comparable nature, in accordance with the law of that Party.
7 a Each Party shall 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
b) The Secretary General of the Council of Europe shall establish and maintain a register of the authorities so designated by the Parties. Each Party shall ensure, on an ongoing basis, the accuracy of the data in the register.
TITLE III
GENERAL PRINCIPLES RELATED TO THE RETIREMENT
Article 25
General Principles of Mutual Assistance
1 The Parties agree to the widest possible support for investigations or proceedings relating to criminal offences relating to computer systems and data, or in order to gather evidence in the form of information
2 Each Party shall also adopt such legislative and other measures as may be necessary to fulfil the obligations set out in Articles 27 to 35.
3 Each Party may, in an emergency, To make a request for assistance or communications relating thereto by means of rapid communication, such as fax or electronic mail, provided that such means provide sufficient security and Authentication (including, if necessary, encryption), with subsequent official confirmation if required by the requested State. The Requested State shall accept the request and respond to it by any of these rapid means of communication.
4 Unless otherwise expressly provided for in the articles of this Chapter, mutual assistance shall be subject to the conditions laid down by the Internal law of the requested Party or the relevant mutual assistance treaties, including the grounds on which the requested Party may refuse cooperation. The requested Party shall not exercise its right to refuse mutual assistance in respect of the offences referred to in Articles 2 to 11 on the sole ground that the request relates to an offence which it considers to be of a fiscal
. Provisions of this Chapter, the requested Party is authorized to make mutual assistance conditional upon the existence of dual criminality, this condition shall be regarded as satisfied if the conduct constituting the offence, for which mutual assistance is Required, is qualified as a criminal offence by its domestic law, whether or not domestic law classis the offence in the same category of offences or whether it designates it by the same terminology as the law of the requesting Party.
Article 26
Spontaneous information
1 A Party may, within the limits of its domestic law and in the absence of a prior request, communicate to another Party information obtained in connection with Its own investigations where it considers that this could assist the receiving Party in initiating or carrying out investigations or proceedings concerning criminal offences established in accordance with this Convention, or where such information May lead to a request for cooperation made by that Party under this Chapter.
2 Before providing such information, the Party providing the information may request that they remain confidential or that they are not Used under certain conditions. If the receiving Party cannot grant the request, it shall inform the other Party, which shall then determine whether the information in question should nevertheless be provided. If the receiving Party accepts the information under the prescribed conditions, it will be bound by the information.
TITLE IV
PROCEDURES FOR REQUESTS FOR THE ABSENCE OF AGREEMENTS APPLICABLE INTERNATIONAL
Article 27
Procedures for Mutual Assistance Requests
in the Absence of Applicable International Agreements
1 In the absence of a self-help 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 shall not apply where a treaty, arrangement or legislation of this kind exists, unless the Parties concerned decide to apply instead all or part of the remainder of this Article.
2 a Each Party shall designate one or Several central authorities responsible for sending or responding to requests for assistance, to execute them or to transmit them to the competent authorities for their execution;
b Central authorities communicate directly with each other 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 in Application of 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 ensure the accuracy of the data contained in the Register.
3 Requests for assistance under this Article shall be executed 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 provided for in Article 25 (4), mutual assistance may be refused by the requested Party:
a if the request relates to an offence that the Party Is of a political nature or is related to a political offence; or
b if the requested Party considers that access to the request could affect its sovereignty, security, public order or Other essential interests.
5 The requested Party may stay the execution of the application if it is likely to prejudice investigations or proceedings conducted by its authorities.
6 Before refusing or postponing its cooperation, the Requested Party shall consider, after having consulted the requesting Party, whether the request may be granted in part, or subject to such conditions as it deems necessary.
7 The requested Party shall promptly inform the Party Applicant for the continuation of the request for assistance. It must give reasons for its possible refusal to grant it or the possible postponement of the request. The requested Party shall also inform the requesting Party of any ground making the execution of the assistance impossible or likely to cause significant delay.
8 The requesting Party may request that the requested Party keep Confidential the fact and subject of any request made under this Chapter, except to the extent necessary for the execution of the said application. If the requested Party cannot grant this request for confidentiality, it shall promptly inform the requesting Party, which shall then determine whether the request should nevertheless be enforced.
9 a In case of emergency, the authorities Court of the requesting Party may direct requests for assistance or related communications directly to their counterparts in the requested Party. In such a case, a copy shall be sent simultaneously to the central authorities of the requested Party through the central authority of the requesting Party.
b Any request or communication under this paragraph may be made by The intermediary of the International Criminal Police Organization (Interpol).
c Where an application has been made under this Article and where the authority is not competent to deal with it, it shall transmit it to The competent national authority and shall inform the requesting Party directly.
d Applications or communications made pursuant to this paragraph, which do not involve coercive measures, may be transmitted directly by the 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 efficiency, requests made under this paragraph shall be addressed to its central authority.
Article 28
Confidentiality and Restriction Use
1 In the absence of a treaty of mutual assistance or arrangement based on uniform or reciprocal legislation in force between the requesting Party and the requested Party, the provisions of this Article Apply. They shall not apply where a treaty, arrangement or legislation of this kind exists, unless the Parties concerned decide to apply in place all or part of this Article.
2 The requested Party may make Communication of information or material in response to an application:
(a) Provided that they remain confidential when the request for mutual assistance cannot be complied with in the absence of this condition; or
(b) On the condition that they do not Shall not be used for the purposes of investigations or proceedings other than those indicated in the application.
3 If the requesting Party cannot meet one of the conditions set out in paragraph 2, it shall promptly inform the requested Party, which shall Then determines whether the information should nevertheless be provided. If the requesting Party accepts this condition, it shall be bound by it.
4 Any Party that provides information or material subject to one of the conditions set out in paragraph 2 may require the other Party to provide it with Details, in relation to this condition, as to the use of this information or material.
Section 2
Specific provisions
TITLE I
ENTRAIDE IN
OF PROVISIONAL ARRANGEMENTS
Article 29
Rapid retention of stored computer data
1 A Party may request another Party to order or otherwise enforce the rapid retention of data stored using a computer system In the territory of that other Party, and on the subject of which the requesting Party intends to submit a request for assistance for search or access by a similar means, seizure or obtaining by means
2 A request for conservation made pursuant to paragraph 1 shall specify:
has the authority that requests the retention;
b the offence subject to the investigation or proceeding A brief description of the facts of the case;
c the stored computer data to be retained and the nature of their relationship to the offence;
d all available information to identify the custodian of the data Computer stored 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 assistance for search or access by a similar means, The seizure or obtaining by a similar means or the disclosure of the information stored.
3 After receiving the request of another Party, the requested Party shall take all appropriate measures to proceed without delay to The retention of the specified data in accordance with its internal law. In order to be able to respond to such a request, dual criminality is not required as a prerequisite for conservation.
4 A Party that requires dual criminality as a condition for responding to a request for mutual assistance in respect of 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 request for conservation under this Article where it has reason to believe that, at the time of disclosure, the condition of dual criminality may not be satisfied.
5 In addition, a request for Retention may be refused only:
a if the request relates to an offence that the requested Party considers to be of a political nature or a political offence; or
b if the requested Party considers that the fact Access to the application could affect its sovereignty, security, public order or other essential interests.
6 Where the requested Party believes that simple retention will not be sufficient to ensure future availability Data, or compromise the confidentiality of the applicant's investigation, or otherwise adversely affect the requesting Party, it shall promptly inform the requesting Party, which shall then decide whether to execute the application.
7 All In response to a request referred to in paragraph 1 shall be valid for a period of not less than sixty days in order to allow the requesting Party to submit an application for search or access by a similar means, The seizure or obtaining by a similar means, or 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 request.
Article 30
Quick disclosure of retained data
1 Where, by executing a request for the retention of traffic data in respect of a specific communication under Article 29, the requested Party discovers that a service provider in another State has Participated in the transmission of this communication, the requested Party shall promptly disclose to the requesting Party sufficient traffic data for the purpose of identifying that service provider and the way in which the Communication has been transmitted.
2 Disclosure of traffic data pursuant to paragraph 1 may be refused only:
a if the request relates to an offence which the requested Party considers to be of a political nature Or related to an offence of a political nature; or
b if it considers that access to the application might prejudice its sovereignty, security, public order or other essential interests.
TITLE II
RETIREMENT OF INVESTING POWERS
Article 31
Support for access to stored data
1 A Party may request another Party to search or access Similar, to enter or otherwise obtain, to disclose data stored by means of a computer system located in the territory of that other Party, including data kept in accordance with Article 29
Satisfy the application by applying the international instruments, arrangements and laws referred to in Article 23, and by complying with the relevant provisions of this Chapter.
3 The application must also be satisfied As soon as possible in the following cases:
has reason 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 the Paragraph 2 provides for rapid cooperation.
Article 32
Cross-border access to stored data, with consent
or when they are publicly available
A Party may, without The authorization of another Party:
has access to publicly available stored data (open source), regardless of the geographic location of the data; or
b access to, or receive by, a system Computer 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 such data by means of that system IT.
Article 33
Real-time
data collection of traffic data
1 The Parties agree to assist in the real-time collection of data relating to the Traffic, associated with specified communications within their territory, transmitted through a computer system. Subject to the provisions of paragraph 2, mutual 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 collection in Real time traffic data would be available in a similar case at the internal level.
Article 34
Content Data Interception Entries
Parties shall provide mutual assistance, to the extent permitted by their applicable domestic treaties and laws, for the collection or real-time recording of data relating to the content of specific communications transmitted by means of a system IT.
TITLE III
NETWORK 24/7
Article 35
Network 24/7
1 Each Party designates a reachable point of contact 24 hours a day, seven days a week, to ensure 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, if internal law and practice allow, direct application of the following measures:
has provided technical advice;
b data retention, in accordance with sections 29 and 30 ;
c collection of evidence, input 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 in accordance with a procedure If
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 The authorities, under an expedited procedure.
3 Each Party will ensure that a trained and equipped staff is available to facilitate network operation.
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 non-member States that have participated in its elaboration.
2 This Convention is Subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
3 This Convention shall enter into force on the first day of the month following the expiration of a period of three months After the date on which five States, including at least three member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of paragraphs 1 and 2.
4 For any signatory State which Will subsequently express its consent to be bound by the Convention, it shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Convention, In accordance with paragraphs 1 and 2.
Article 37
Accession to the Convention
1 After the entry into force of this Convention, the Committee of Ministers of the Council of Europe May, after consulting the Contracting States to the Convention and having obtained the unanimous consent of the Contracting States, invite any non-member State of the Council, having not participated in its elaboration, to accede to this Convention. The decision shall be taken by a majority provided for in Article 20.d of the Statute of the Council of Europe and unanimously by the representatives of the Contracting States entitled to sit on the Committee of Ministers.
2 For any State acceding to the Convention, In accordance with paragraph 1 above, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.
Article 38
Territorial application
1 Any State may, at the time of signature or at the time of deposit of its instrument of ratification, acceptance, approval or accession, designate the 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 Designated territory 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
Of the two preceding paragraphs may be withdrawn, in respect of 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 such notification by the Secretary General.
Article 39
Effects of the Convention
1 The purpose of this Convention is to supplement existing multilateral or bilateral treaties or agreements between the Parties, including the provisions:
-of the European Convention on Extradition, open To the signature on 13 December 1957, in Paris (ETS No. 24);
-of the European Convention on Mutual Assistance in Criminal Matters, opened for signature on 20 April 1959 in Strasbourg (ETS No. 30);
-of the Additional Protocol to the Convention European mutual legal assistance in criminal matters, opened for signature on 17 March 1978 in Strasbourg (ETS No. 99).
2 If two or more Parties have already concluded an agreement or a treaty on matters dealt with by this Convention, or if They have otherwise established their relations on these subjects, or if they will do so in the future, they also have the right to apply the said Agreement or Treaty or to establish their relations accordingly, instead of this Convention. However, where the Parties establish their relations relating to the matters covered by this Convention in a manner different from that provided for, they shall do so in a manner that is not inconsistent with the objectives and Convention principles.
3 Nothing in this Convention affects any other rights, restrictions, obligations and responsibilities of a Party.
Article 40
Declarations
By declaration Written to the Secretary General of the Council of Europe, any State may, at the time of signature or the deposit of its instrument of ratification, acceptance, approval or accession, declare that it avails itself of the right to require, the case One or more additional elements as provided for in Articles 2, 3, 6 (1). 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 the Chapter of this Convention to the extent that they are Compatible with the fundamental principles governing relations between its central government and the constituent states or other similar territorial entities, provided that it is able to cooperate on the basis of Chapter III
When making a reservation provided for in paragraph 1, a federal State shall not use the terms of such a reservation to exclude or substantially reduce its obligations under Chapter II. In any event, it shall have an extensive and effective means for the implementation of the measures provided for in that Chapter.
3 With regard to the provisions of that Convention, the application of which falls within the legislative competence of Each of the constituent states or other similar territorial entities, which are not, by virtue of the constitutional system of the federation, required to take legislative measures, the Federal Government, with its favourable opinion, shall Provisions to 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 takes precedence over the reservation (s) Article 4 (2), Article 6 (3), Article 9 (4), Article 10 (3), Article 11 (3), Article 14 (3), Article 22 (2), Article 29 (4) and Article 41 (1). No other reservation may be made.
Article 43
Status and withdrawal of reserves
1 A Party that has made a reservation in accordance with section 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 later than the date on which the Secretary General receives the notification, the withdrawal shall take effect at that later
. Party which has made a reservation such as those referred to in Article 42 withdraws this reservation, in whole or in part, as soon as circumstances permit.
3 The Secretary General of the Council of Europe may periodically request the Parties Having made one or more reservations such as those referred to in Article 42 of the information on the prospects for their withdrawal.
Article 44
Amendments
1 Amendments to the present 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 non-member States which have taken part in the elaboration of this Convention, as well as to Any State which 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 on Crime Problems (CDPC), which shall submit to the Committee The
of Ministers shall consider the proposed amendment and the opinion submitted by the CDPC and, after consultation with the non-member States party 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 Thirtieth day after all Parties have informed the Secretary General of their acceptance.
Article 45
Dispute Settlement
1 The European Committee for Criminal Problems of the Council Of Europe (CDPC) shall be 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 achieve a Settlement of the dispute through negotiation or by any other peaceful means of their choice, including the submission of the dispute to the CDPC, to a arbitral tribunal which will take decisions binding the Parties to the dispute, or to the International Court of Justice, according to an agreement between the Parties concerned.
Article 46
Cooperation of the Parties
1 The Parties shall consult periodically, as appropriate, to facilitate:
The effective work of this Convention, including the identification of any problems in this field, as well as the effects of any declaration or reservation made in accordance with this Convention;
b exchange of information on new developments Significant legal, political or technical developments in the area of computer crime and the collection of evidence in electronic form;
c considering whether to complete or amend the Convention.
2 The Committee European Criminal Problems (CDPC) shall be kept regularly informed of the outcome of the consultations referred to in paragraph 1.
3 The CDPC shall, if necessary, facilitate the consultations referred to in paragraph 1 and adopt the necessary measures To assist Parties in their efforts to complete or amend the Convention. No later than three years after the entry into force of this Convention, the CDPC shall, in cooperation with the Parties, undertake a review of all the provisions of the Convention and shall propose, where appropriate, the
costs arising from the application of the provisions of paragraph 1 shall be borne by the Parties, in the manner in which they determine.
5 The Parties shall be responsible for: 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 the This Convention shall be notified to the Secretary General of the Council of Europe.
2 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.
Article 48
Notification
The Secretary General of the Council of Europe notifies the member states of the Council of Europe, to non-member states involved in the elaboration of This Convention, as well as any State which has acceded to or has been invited to accede to it:
has any signature;
b the deposit of any instrument of ratification, acceptance, approval or accession;
c any date of entry into force Of this Convention, in accordance with Articles 36 and 37;
d any declaration made under Article 40 or any reservation made pursuant to Article 42;
e any other act, notification or communication relating to
In witness whereof, the undersigned, duly authorized to that effect, have signed this Convention.
Done at Budapest, on November 23, 2001, in English and French, 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 to each member state of the Council of Europe, to the non-member states which participated in the elaboration Convention and any State invited to accede to it.
DECLARATIONS AND RESERVES
DE LA REPUBLIC FRANÇAISE
Article 9 (2) (b)
Child Pornography
France will apply Article 9 (1) to Any pornographic material which visually represents a person, who appears to be a minor engaged in sexually explicit behaviour, provided that it is not established that the person was eighteen years of age on the day of Fixation or recording of its image.
Article 21
Interception of content data
France will apply the measures provided for in Article 21 only if the infringement prosecuted is Punished by imprisonment for two years or more.
Article 22
Jurisdiction
France states that it reserves the right not to establish its jurisdiction when The offence does not fall within the territorial jurisdiction of any State. France further states that, where the offence is criminally punishable where it has been committed, the prosecution can only be carried out at the request of the public prosecutor and must be preceded by a complaint by the victim or his successors in title, or An official denunciation by the authority of the country where the act was committed (art. 22 [1] [d]).
Article 24
Extradition Requests
France states that:
-the Ministry of Foreign Affairs will be the responsible authority for sending and receiving an application Extradition in the absence of a treaty (Ministry of Foreign Affairs, 37, Quai d' Orsay, 75700 Paris 07 SP);
-the prosecutor of the territorially competent republic will be the responsible authority for sending and receiving an application Provisional arrest in the absence of a treaty.
Article 27
Requests for help
France indicates that, even in an emergency:
-requests for mutual assistance from the judicial authorities French and intended for foreign judicial authorities are transmitted through the Ministry of Justice (Ministry of Justice, 13 Place Vendôme, 75042 Paris Cedex 01);
-requests for mutual assistance from the authorities Foreign judicial authorities for the French judicial authorities are transmitted through diplomatic channels (Ministry of Foreign Affairs, 37, Quai d' Orsay, 75700 Paris 07 SP).
Article 35
Point of contact
France is the point of contact for the Central Office for the Fight against Information and Communication Technology (11, rue des Saussaies, 75800 Paris).
Done at Paris, May 23, 2006.
Jacques Chirac
By the President of the Republic:
The Prime Minister,
Dominique de Villepin
Le Foreign Minister,
Philippe Douste-Blazy
