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13174 Multilateral - Convention on Cybercrime


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13174

 

COMPUTER CRIME

 

 

 


Convention Between the
UNITED STATES OF AMERICA
and OTHER GOVERNMENTS

 

Done at Budapest November 23, 2001

 

 

 

 

 

 



 

 


NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”


 

 

 

 


MULTILATERAL

Computer Crime

Convention done at Budapest November 23, 2001;
Transmitted by the President of the United States of America
to the Senate November 17, 2003 (Treaty Doc. 108-11,
108th Congress, 1st Session);
Reported favorably by the Senate Committee on Foreign Relations
July 26, 2005 (Senate Executive Report No. 109-6,
109th Congress, 1st Session);
Advice and consent to ratification by the Senate
August 3, 2006;
Ratified by the President September 22, 2006;
Instrument of Ratification deposited September 29, 2006;
Entered into force January 1, 2007.

 

 

 

 

 

CONVENTION
ON CYBERCRIME
Preamble
The member States of the Council of Europe and the other States signatory hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity between its
members ;
Recognising the value of fostering co-operation with the other States parties to this Convention ;
Convinced of the need to pursue, as a matter of priority, a common criminal policy aimed at
the protection of society against cybercrime, inter alia, by adopting appropriate legislation and
fostering international co-operation ;
Conscious of the profound changes brought about by the digitalisation, convergence and
continuing globalisation of computer networks ;
Concerned by the risk that computer networks and electronic information may also be used for
committing criminal offences and that evidence relating to such offences may be stored and
transferred by these networks ;
Recognising the need for co-operation between States and private industry in combating
cybercrime and the need to protect legitimate interests in the use and development of infor-
mation technologies;
Believing that an effective fight against cybercrime requires increased, rapid and well-functio-
ning international co-operation in criminal matters ;
Convinced that the present Convention is necessary to deter action directed against the confi-
dentiality, integrity and availability of computer systems, networks and computer data as well
as the misuse of such systems, networks and data by providing for the criminalisation of such
conduct, as described in this Convention, and the adoption of powers sufficient for effectively
combating such criminal offences, by facilitating their detection, investigation and prosecution
at both the domestic and international levels and by providing arrangements for fast and
reliable international co-operation ;
Mindful of the need to ensure a proper balance between the interests of law enforcement and
respect for fundamental human rights as enshrined in the 1950 Council of Europe Convention
for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations
International Covenant on Civil and Political Rights and other applicable international human
rights treaties, which reaffirm the right of everyone to hold opinions without interference, as
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well as the right to freedom of expression, including the freedom to seek, receive, and impart
information and ideas of all kinds, regardless of frontiers, and the rights concerning the respect
for privacy ;
Mindful also of the right to the protection of personal data, as conferred, for example, by the
1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data;
Considering the 1989 United Nations Convention on the Rights of the Child and the 1999
International Labour Organization Worst Forms of Child Labour Convention ;
Taking into account the existing Council of Europe conventions on co-operation in the penal
field, as well as similar treaties which exist between Council of Europe member States and
other States, and stressing that the present Convention is intended to supplement those
conventions in order to make criminal investigations and proceedings concerning criminal
offences related to computer systems and data more effective and to enable the collection of
evidence in electronic form of a criminal offence ;
Welcoming recent developments which further advance international understanding and co-
operation in combating cybercrime, including action taken by the United Nations, the OECD,
the European Union and the G8;
Recalling Committee of Ministers Recommendations No. R (85) 10 concerning the practical
application of the European Convention on Mutual Assistance in Criminal Matters in respect
of letters rogatory for the interception of telecommunications, No. R (88) 2 on piracy in the
field of copyright and neighbouring rights, No. R (87) 15 regulating the use of personal data
in the police sector, No. R (95) 4 on the protection of personal data in the area of telecommu-
nication services, with particular reference to telephone services, as well as No. R (89) 9 on
computer-related crime providing guidelines for national legislatures concerning the definition
of certain computer crimes and No. R (95) 13 concerning problems of criminal procedural law
connected with information technology ;
Having regard to Resolution No. 1 adopted by the European Ministers of Justice at their 21st
Conference (Prague, 10 and 11 June 1997), which recommended that the Committee of
Ministers support the work on cybercrime carried out by the European Committee on Crime
Problems (CDPC) in order to bring domestic criminal law provisions closer to each other and
enable the use of effective means of investigation into such offences, as well as to Resolution
No. 3 adopted at the 23rd Conference of the European Ministers of Justice (London, 8 and 9
June 2000), which encouraged the negotiating parties to pursue their efforts with a view to
finding appropriate solutions to enable the largest possible number of States to become parties
to the Convention and acknowledged the need for a swift and efficient system of internatio-
nal co-operation, which duly takes into account the specific requirements of the fight against
cybercrime ;
Having also regard to the Action Plan adopted by the Heads of State and Government of the
Council of Europe on the occasion of their Second Summit (Strasbourg, 10 and 11 October
1997), to seek common responses to the development of the new information technologies
based on the standards and values of the Council of Europe;
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Have agreed as follows :
Chapter I — Use of terms
Article 1 — Definitions
For the purposes of this Convention :
a "computer system" means any device or a group of interconnected or related devices, one
or more of which, pursuant to a program, performs automatic processing of data ;
b "computer data" means any representation of facts, information or concepts in a form sui-
table for processing in a computer system, including a program suitable to cause a com-
puter system to perform a function ;
c "service provider" means :
i any public or private entity that provides to users of its service the ability to communicate
by means of a computer system, and
ii any other entity that processes or stores computer data on behalf of such communication
service or users of such service ;
d "traffic data" means any computer data relating to a communication by means of a computer
system, generated by a computer system that formed a part in the chain of communication,
indicating the communication's origin, destination, route, time, date, size, duration, or
type of underlying service.
Chapter II — Measures to be taken at the national level
Section 1 — Substantive criminal law
Title 1 — Offences against the confidentiality, integrity
and availability of computer data and systems
Article 2 — Illegal access
Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally, the access to the
whole or any part of a computer system without right. A Party may require that the offence
be committed by infringing security measures, with the intent of obtaining computer data or
other dishonest intent, or in relation to a computer system that is connected to another com-
puter system.
Article 3 — Illegal interception
Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally, the interception
without right, made by technical means, of non-public transmissions of computer data to,
from or within a computer system, including electromagnetic emissions from a computer system
carrying such computer data. A Party may require that the offence be committed with disho-
nest intent, or in relation to a computer system that is connected to another computer system.
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Article 4 — Data interference
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally, the damaging, dele-
tion, deterioration, alteration or suppression of computer data without right.
2 A Party may reserve the right to require that the conduct described in paragraph 1 result in
serious harm.
Article 5 — System interference
Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally, the serious hindering
without right of the functioning of a computer system by inputting, transmitting, damaging,
deleting, deteriorating, altering or suppressing computer data.
Article 6 — Misuse of devices
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally and without right:
a the production, sale, procurement for use, import, distribution or otherwise making avai-
lable of:
i a device, including a computer program, designed or adapted primarily for the pur-
pose of committing any of the offences established in accordance with the above
Articles 2 through 5 ;
ii a computer password, access code, or similar data by which the whole or any part of
a computer system is capable of being accessed,
with intent that it be used for the purpose of committing any of the offences established
in Articles 2 through 5; and
b the possession of an item referred to in paragraphs a.i or ii above, with intent that it be
used for the purpose of committing any of the offences established in Articles 2 through 5.
A Party may require by law that a number of such items be possessed before criminal
liability attaches.
2 This article shall not be interpreted as imposing criminal liability where the production, sale,
procurement for use, import, distribution or otherwise making available or possession referred
to in paragraph 1 of this article is not for the purpose of committing an offence established in
accordance with Articles 2 through 5 of this Convention, such as for the authorised testing or
protection of a computer system.
3 Each Party may reserve the right not to apply paragraph 1 of this article, provided that the
reservation does not concern the sale, distribution or otherwise making available of the items
referred to in paragraph 1 a.ii of this article.
Title 2 — Computer-related offences
Article 7 — Computer-related forgery
Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally and without right, the
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input, alteration, deletion, or suppression of computer data, resulting in inauthentic data with
the intent that it be considered or acted upon for legal purposes as if it were authentic, regard-
less whether or not the data is directly readable and intelligible. A Party may require an intent
to defraud, or similar dishonest intent, before criminal liability attaches.
Article 8 — Computer-related fraud
Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally and without right, the
causing of a loss of property to another person by :
a any input, alteration, deletion or suppression of computer data ;
b any interference with the functioning of a computer system,
with fraudulent or dishonest intent of procuring, without right, an economic benefit for
oneself or for another person.
Title 3 — Content-related offences
Article 9 — Offences related to child pornography
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally and without right, the
following conduct:
a producing child pornography for the purpose of its distribution through a computer system ;
b offering or making available child pornography through a computer system ;
c distributing or transmitting child pornography through a computer system ;
d procuring child pornography through a computer system for oneself or for another person ;
e possessing child pornography in a computer system or on a computer-data storage medium.
2 For the purpose of paragraph 1 above, the term "child pornography" shall include pornographic
material that visually depicts:
a a minor engaged in sexually explicit conduct;
b a person appearing to be a minor engaged in sexually explicit conduct ;
c realistic images representing a minor engaged in sexually explicit conduct.
3 For the purpose of paragraph 2 above, the term "minor" shall include all persons under 18 years
of age. A Party may, however, require a lower age-limit, which shall be not less than 16 years.
4 Each Party may reserve the right not to apply, in whole or in part, paragraphs 1, sub-para-
graphs d. and e, and 2, sub-paragraphs b. and c.
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Title 4 — Offences related to infringements of copyright and related rights
Article 10 — Offences related to infringements of copyright and related rights
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law the infringement of copyright, as defined under the
law of that Party, pursuant to the obligations it has undertaken under the Paris Act of 24 July
1971 revising the Bern Convention for the Protection of Literary and Artistic Works, the
Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Copyright
Treaty, with the exception of any moral rights conferred by such conventions, where such acts
are committed wilfully, on a commercial scale and by means of a computer system.
2 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law the infringement of related rights, as defined under
the law of that Party, pursuant to the obligations it has undertaken under the International
Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (Rome Convention), the Agreement on Trade-Related Aspects of Intellectual
Property Rights and the WIPO Performances and Phonograms Treaty, with the exception of
any moral rights conferred by such conventions, where such acts are committed wilfully, on a
commercial scale and by means of a computer system.
3 A Party may reserve the right not to impose criminal liability under paragraphs 1 and 2 of this
article in limited circumstances, provided that other effective remedies are available and that
such reservation does not derogate from the Party's international obligations set forth in the
international instruments referred to in paragraphs 1 and 2 of this article.
Title 5 — Ancillary liability and sanctions
Article 11 —Attempt and aiding or abetting
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally, aiding or abetting the
commission of any of the offences established in accordance with Articles 2 through 10 of the
present Convention with intent that such offence be committed.
2 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally, an attempt to commit
any of the offences established in accordance with Articles 3 through 5, 7, 8, and 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 — Corporate liability
1 Each Party shall adopt such legislative and other measures as may be necessary to ensure that
legal persons can be held liable for a criminal offence established in accordance with this
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Convention, committed for their benefit by any natural person, acting either individually or as
part of an organ of the legal person, who has a leading position within it, based on :
a a power of representation of the legal person ;
b an authority to take decisions on behalf of the legal person ;
c an authority to exercise control within the legal person.
2 In addition to the cases already provided for in paragraph 1 of this article, each Party shall take
the measures necessary to ensure that a legal person can be held liable where the lack of
supervision or control by a natural person referred to in paragraph 1 has made possible the
commission of a criminal offence established in accordance with this Convention for the benefit
of that legal person by a natural person acting under its authority.
3 Subject to the legal principles of the Party, the liability of a legal person may be criminal, civil
or administrative.
4 Such liability shall be without prejudice to the criminal liability of the natural persons who have
committed the offence.
Article 13 — Sanctions and measures
1 Each Party shall adopt such legislative and other measures as may be necessary to ensure that
the criminal offences established in accordance with Articles 2 through 11 are punishable by
effective, proportionate and dissuasive sanctions, which include deprivation of liberty.
2 Each Party shall ensure that legal persons held liable in accordance with Article 12 shall be subject
to effective, proportionate and dissuasive criminal or non-criminal sanctions or measures,
including monetary sanctions.
Section 2 — Procedural law
Title 1 — Common provisions
Article 14 — Scope of procedural provisions
1 Each Party shall adopt such legislative and other measures as may be necessary to establish the
powers and procedures provided for in this section for the purpose of specific criminal investi-
gations or proceedings.
2 Except as specifically provided otherwise in Article 21, each Party shall apply the powers and
procedures referred to in paragraph 1 of this article to :
a the criminal offences established in accordance with Articles 2 through 11 of this Convention ;
b other criminal offences committed by means of a computer system ; and
c the collection of evidence in electronic form of a criminal offence.
3 a Each Party may reserve the right to apply the measures referred to in Article 20 only to
offences or categories of offences specified in the reservation, provided that the range of
such offences or categories of offences is not more restricted than the range of offences
to which it applies the measures referred to in Article 21. Each Party shall consider restric-
ting such a reservation to enable the broadest application of the measure referred to in
Article 20.
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b Where a Party, due to limitations in its legislation in force at the time of the adoption of
the present Convention, is not able to apply the measures referred to in Articles 20 and 21
to communications being transmitted within a computer system of a service provider,
which system :
i is being operated for the benefit of a closed group of users, and
ii does not employ public communications networks and is not connected with another
computer system, whether public or private,
that Party may reserve the right not to apply these measures to such communications.
Each Party shall consider restricting such a reservation to enable the broadest application
of the measures referred to in Articles 20 and 21.
Article 15 — Conditions and safeguards
1 Each Party shall ensure that the establishment, implementation and application of the powers
and procedures provided for in this Section are subject to conditions and safeguards provided
for under its domestic law, which shall provide for the adequate protection of human rights
and liberties, including rights arising pursuant to obligations it has undertaken under the 1950
Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms,
the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable
international human rights instruments, and which shall incorporate the principle of propor-
tionality.
2 Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or
power concerned, inter alia, include judicial or other independent supervision, grounds justifying
application, and limitation of the scope and the duration of such power or procedure.
3 To the extent that it is consistent with the public interest, in particular the sound administration
of justice, each Party shall consider the impact of the powers and procedures in this section
upon the rights, responsibilities and legitimate interests of third parties.
Title 2 — Expedited preservation of stored computer data
Article 16 — Expedited preservation of stored computer data
1 Each Party shall adopt such legislative and other measures as may be necessary to enable its
competent authorities to order or similarly obtain the expeditious preservation of specified
computer data, including traffic data, that has been stored by means of a computer system, in
particular where there are grounds to believe that the computer data is particularly vulnerable
to loss or modification.
2 Where a Party gives effect to paragraph 1 above by means of an order to a person to preserve
specified stored computer data in the person's possession or control, the Party shall adopt such
legislative and other measures as may be necessary to oblige that person to preserve and
maintain the integrity of that computer data for a period of time as long as necessary, up to a
maximum of ninety days, to enable the competent authorities to seek its disclosure. A Party
may provide for such an order to be subsequently renewed.
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3 Each Party shall adopt such legislative and other measures as may be necessary to oblige the
custodian or other person who is to preserve the computer data to keep confidential the
undertaking of such procedures for the period of time provided for by its domestic law.
4 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Article 17 — Expedited preservation and partial disclosure of traffic data
1 Each Party shall adopt, in respect of traffic data that is to be preserved under Article 16, such
legislative and other measures as may be necessary to:
a ensure that such expeditious preservation of traffic data is available regardless of whether one
or more service providers were involved in the transmission of that communication ; and
b ensure the expeditious disclosure to the Party's competent authority, or a person designa-
ted by that authority, of a sufficient amount of traffic data to enable the Party to identify
the service providers and the path through which the communication was transmitted.
2 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Title 3 — Production order
Article 18 — Production order
1 Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to order:
a a person in its territory to submit specified computer data in that person's possession or
control, which is stored in a computer system or a computer-data storage medium ; and
b a service provider offering its services in the territory of the Party to submit subscriber
information relating to such services in that service provider's possession or control.
2 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
3 For the purpose of this article, the term "subscriber information" means any information
contained in the form of computer data or any other form that is held by a service provider,
relating to subscribers of its services other than traffic or content data and by which can be
established :
a the type of communication service used, the technical provisions taken thereto and the
period of service ;
b the subscriber's identity, postal or geographic address, telephone and other access number,
billing and payment information, available on the basis of the service agreement or arran-
gement;
c any other information on the site of the installation of communication equipment, available
on the basis of the service agreement or arrangement.
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Title 4 — Search and seizure of stored computer data
Article 19 — Search and seizure of stored computer data
Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to search or similarly access:
a a computer system or part of it and computer data stored therein ; and
b a computer-data storage medium in which computer data may be stored
in its territory.
2 Each Party shall adopt such legislative and other measures as may be necessary to ensure that
where its authorities search or similarly access a specific computer system or part of it, pursuant
to paragraph 1.a, and have grounds to believe that the data sought is stored in another com-
puter system or part of it in its territory, and such data is lawfully accessible from or available
to the initial system, the authorities shall be able to expeditiously extend the search or similar
accessing to the other system.
3 Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to seize or similarly secure computer data accessed according to para-
graphs 1 or 2. These measures shall include the power to :
a seize or similarly secure a computer system or part of it or a computer-data storage
medium ;
b make and retain a copy of those computer data;
c maintain the integrity of the relevant stored computer data ;
d render inaccessible or remove those computer data in the accessed computer system.
4 Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to order any person who has knowledge about the functioning of the
computer system or measures applied to protect the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the measures referred to
in paragraphs 1 and 2.
5 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Title 5 — Real-time collection of computer data
Article 20 — Real-time collection of traffic data
1 Each Party shall adopt such legislative and other measures as may be necessary to empower its
competent authorities to :
a collect or record through the application of technical means on the territory of that Party, and
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b compel a service provider, within its existing technical capability:
i to collect or record through the application of technical means on the territory of that
Party ; or
ii to co-operate and assist the competent authorities in the collection or recording of,
traffic data, in real-time, associated with specified communications in its territory trans-
mitted by means of a computer system.
2 Where a Party, due to the established principles of its domestic legal system, cannot adopt the
measures referred to in paragraph 1.a, it may instead adopt legislative and other measures as
may be necessary to ensure the real-time collection or recording of traffic data associated with
specified communications transmitted in its territory, through the application of technical
means on that territory.
3 Each Party shall adopt such legislative and other measures as may be necessary to oblige a ser-
vice provider to keep confidential the fact of the execution of any power provided for in this
article and any information relating to it.
4 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Article 21 — Interception of content data
1 Each Party shall adopt such legislative and other measures as may be necessary, in relation to
a range of serious offences to be determined by domestic law, to empower its competent
authorities to :
a collect or record through the application of technical means on the territory of that Party, and
b compel a service provider, within its existing technical capability:
i to collect or record through the application of technical means on the territory of that
Party, or
ii to co-operate and assist the competent authorities in the collection or recording of,
content data, in real-time, of specified communications in its territory transmitted by
means of a computer system.
2 Where a Party, due to the established principles of its domestic legal system, cannot adopt the
measures referred to in paragraph 1.a, it may instead adopt legislative and other measures as
may be necessary to ensure the real-time collection or recording of content data on specified
communications in its territory through the application of technical means on that territory.
3 Each Party shall adopt such legislative and other measures as may be necessary to oblige a ser-
vice provider to keep confidential the fact of the execution of any power provided for in this
article and any information relating to it.
4 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
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Section 3 - Jurisdiction
Article 22 -Jurisdiction
1 Each Party shall adopt such legislative and other measures as may be necessary to establish
jurisdiction over any offence established in accordance with Articles 2 through 11 of this
Convention, when the offence is committed :
a in its territory ; or
b on board a ship flying the flag of that Party ; or
c on board an aircraft registered under the laws of that Party; or
d by one of its nationals, if the offence is punishable under criminal law where it was com-
mitted or if the offence is committed outside the territorial jurisdiction of any State.
2 Each Party may reserve the right not to apply or to apply only in specific cases or conditions
the jurisdiction rules laid down in paragraphs 1.b through 1.d of this article or any part thereof.
3 Each Party shall adopt such measures as may be necessary to establish jurisdiction over the
offences referred to in Article 24, paragraph 1, of this Convention, in cases where an alleged
offender is present in its territory and it does not extradite him or her to another Party, solely
on the basis of his or her nationality, after a request for extradition.
4 This Convention does not exclude any criminal jurisdiction exercised by a Party in accordance
with its domestic law.
5 When more than one Party claims jurisdiction over an alleged offence established in accor-
dance with this Convention, the Parties involved shall, where appropriate, consult with a view
to determining the most appropriate jurisdiction for prosecution.
Chapter III - International co-operation
Section 1 - General principles
Title 1 - General principles relating to international co-operation
Article 23 - General principles relating to international co-operation
The Parties shall co-operate with each other, in accordance with the provisions of this chapter,
and through the application of relevant international instruments on international co-opera-
tion in criminal matters, arrangements agreed on the basis of uniform or reciprocal legislation,
and domestic laws, to the widest extent possible for the purposes of investigations or procee-
dings concerning criminal offences related to computer systems and data, or for the collection
of evidence in electronic form of a criminal offence.
Title 2 - Principles relating to extradition
Article 24 - Extradition
1 a This article applies to extradition between Parties for the criminal offences established in
accordance with Articles 2 through 11 of this Convention, provided that they are puni-
shable under the laws of both Parties concerned by deprivation of liberty for a maximum
period of at least one year, or by a more severe penalty.
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b Where a different minimum penalty is to be applied under an arrangement agreed on the
basis of uniform or reciprocal legislation or an extradition treaty, including the European
Convention on Extradition (ETS No. 24), applicable between two or more parties, the
minimum penalty provided for under such arrangement or treaty shall apply.
2 The criminal offences described in paragraph 1 of this article shall be deemed to be included as
extraditable offences in any extradition treaty existing between or among the Parties. The
Parties undertake to include such offences as extraditable offences in any extradition treaty to
be concluded between or among them.
3 If a Party that makes extradition conditional on the existence of a treaty receives a request for
extradition from another Party with which it does not have an extradition treaty, it may consider
this Convention as the legal basis for extradition with respect to any criminal offence referred
to in paragraph 1 of this article.
4 Parties that do not make extradition conditional on the existence of a treaty shall recognise the
criminal offences referred to in paragraph 1 of this article as extraditable offences between
themselves.
5 Extradition shall be subject to the conditions provided for by the law of the requested Party or
by applicable extradition treaties, including the grounds on which the requested Party may
refuse extradition.
6 If extradition for a criminal offence referred to in paragraph 1 of this article is refused solely on
the basis of the nationality of the person sought, or because the requested Party deems that it
has jurisdiction over the offence, the requested Party shall submit the case at the request of the
requesting Party to its competent authorities for the purpose of prosecution and shall report
the final outcome to the requesting Party in due course. Those authorities shall take their deci-
sion and conduct their investigations and proceedings in the same manner as for any other
offence of a comparable nature under the law of that Party.
7 a Each Party shall, at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, communicate to the Secretary General of the Council
of Europe the name and address of each authority responsible for making or receiving
requests for extradition or provisional arrest in the absence of a treaty.
b The Secretary General of the Council of Europe shall set up and keep updated a register of
authorities so designated by the Parties. Each Party shall ensure that the details held on the
register are correct at all times.
Title 3 — General principles relating to mutual assistance
Article 25 — General principles relating to mutual assistance
1 The Parties shall afford one another mutual assistance to the widest extent possible for the
purpose of investigations or proceedings concerning criminal offences related to computer sys-
tems and data, or for the collection of evidence in electronic form of a criminal offence.
2 Each Party shall also adopt such legislative and other measures as may be necessary to carry
out the obligations set forth in Articles 27 through 35.
3 Each Party may, in urgent circumstances, make requests for mutual assistance or communica-
tions related thereto by expedited means of communication, including fax or e-mail, to the
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extent that such means provide appropriate levels of security and authentication (including the
use of encryption, where necessary), with formal confirmation to follow, where required by
the requested Party. The requested Party shall accept and respond to the request by any such
expedited means of communication.
4 Except as otherwise specifically provided in articles in this chapter, mutual assistance shall be
subject to the conditions provided for by the law of the requested Party or by applicable
mutual assistance treaties, including the grounds on which the requested Party may refuse co-
operation. The requested Party shall not exercise the right to refuse mutual assistance in rela-
tion to the offences referred to in Articles 2 through 11 solely on the ground that the request
concerns an offence which it considers a fiscal offence.
5 Where, in accordance with the provisions of this chapter, the requested Party is permitted to
make mutual assistance conditional upon the existence of dual criminality, that condition shall
be deemed fulfilled, irrespective of whether its laws place the offence within the same cate-
gory of offence or denominate the offence by the same terminology as the requesting Party,
if the conduct underlying the offence for which assistance is sought is a criminal offence under
its laws.
Article 26 — Spontaneous information
1 A Party may, within the limits of its domestic law and without prior request, forward to another
Party information obtained within the framework of its own investigations when it considers
that the disclosure of such information might assist the receiving Party in initiating or carrying
out investigations or proceedings concerning criminal offences established in accordance with
this Convention or might lead to a request for co-operation by that Party under this chapter.
2 Prior to providing such information, the providing Party may request that it be kept confidential
or only used subject to conditions. If the receiving Party cannot comply with such request, it
shall notify the providing Party, which shall then determine whether the information should
nevertheless be provided. If the receiving Party accepts the information subject to the conditions,
it shall be bound by them.
Title 4— Procedures pertaining to mutual assistance requests
in the absence of applicable international agreements
Article 27 — Procedures pertaining to mutual assistance requests in the absence of applicable
international agreements
1 Where there is no mutual assistance treaty or arrangement on the basis of uniform or reciprocal
legislation in force between the requesting and requested Parties, the provisions of paragraphs 2
through 9 of this article shall apply. The provisions of this article shall not apply where such
treaty, arrangement or legislation exists, unless the Parties concerned agree to apply any or all
of the remainder of this article in lieu thereof.
2 a Each Party shall designate a central authority or authorities responsible for sending and ans-
wering requests for mutual assistance, the execution of such requests or their transmission to
the authorities competent for their execution.
15
b The central authorities shall communicate directly with each other;
c Each Party shall, at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, communicate to the Secretary General of the Council of
Europe the names and addresses of the authorities designated in pursuance of this paragraph ;
d The Secretary General of the Council of Europe shall set up and keep updated a register of
central authorities designated by the Parties. Each Party shall ensure that the details held
on the register are correct at all times.
3 Mutual assistance requests under this article shall be executed in accordance with the procedures
specified by the requesting Party, except where incompatible with the law of the requested
Party.
4 The requested Party may, in addition to the grounds for refusal established in Article 25, para-
graph 4, refuse assistance if:
a the request concerns an offence which the requested Party considers a political offence or
an offence connected with a political offence, or
b it considers that execution of the request is likely to prejudice its sovereignty, security,
ordre public or other essential interests.
5 The requested Party may postpone action on a request if such action would prejudice criminal
investigations or proceedings conducted by its authorities.
6 Before refusing or postponing assistance, the requested Party shall, where appropriate after
having consulted with the requesting Party, consider whether the request may be granted par-
tially or subject to such conditions as it deems necessary.
7 The requested Party shall promptly inform the requesting Party of the outcome of the execu-
tion of a request for assistance. Reasons shall be given for any refusal or postponement of the
request. The requested Party shall also inform the requesting Party of any reasons that render
impossible the execution of the request or are likely to delay it significantly.
8 The requesting Party may request that the requested Party keep confidential the fact of any
request made under this chapter as well as its subject, except to the extent necessary for its
execution. If the requested Party cannot comply with the request for confidentiality, it shall
promptly inform the requesting Party, which shall then determine whether the request should
nevertheless be executed.
9 a In the event of urgency, requests for mutual assistance or communications related thereto
may be sent directly by judicial authorities of the requesting Party to such authorities of
the requested Party. In any such cases, a copy shall be sent at the same time to the cen-
tral authority of the requested Party through the central authority of the requesting Party.
b Any request or communication under this paragraph may be made through the International
Criminal Police Organisation (Interpol).
c Where a request is made pursuant to sub-paragraph a. of this article and the authority is
not competent to deal with the request, it shall refer the request to the competent natio-
nal authority and inform directly the requesting Party that it has done so.
d Requests or communications made under this paragraph that do not involve coercive
action may be directly transmitted by the competent authorities of the requesting Party to
the competent authorities of the requested Party.
16
e Each Party may, at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, inform the Secretary General of the Council of Europe
that, for reasons of efficiency, requests made under this paragraph are to be addressed to
its central authority.
Article 28 — Confidentiality and limitation on use
1 When there is no mutual assistance treaty or arrangement on the basis of uniform or recipro-
cal legislation in force between the requesting and the requested Parties, the provisions of this
article shall apply. The provisions of this article shall not apply where such treaty, arrangement
or legislation exists, unless the Parties concerned agree to apply any or all of the remainder of
this article in lieu thereof.
2 The requested Party may make the supply of information or material in response to a request
dependent on the condition that it is:
a kept confidential where the request for mutual legal assistance could not be complied with
in the absence of such condition, or
b not used for investigations or proceedings other than those stated in the request.
3 If the requesting Party cannot comply with a condition referred to in paragraph 2, it shall
promptly inform the other Party, which shall then determine whether the information should
nevertheless be provided. When the requesting Party accepts the condition, it shall be bound
by it.
4 Any Party that supplies information or material subject to a condition referred to in paragraph 2
may require the other Party to explain, in relation to that condition, the use made of such
information or material.
Section 2 — Specific provisions
Title 1 — Mutual assistance regarding provisional measures
Article 29 — Expedited preservation of stored computer data
A Party may request another Party to order or otherwise obtain the expeditious preservation
of data stored by means of a computer system, located within the territory of that other Party
and in respect of which the requesting Party intends to submit a request for mutual assistance
for the search or similar access, seizure or similar securing, or disclosure of the data.
2 A request for preservation made under paragraph 1 shall specify:
a the authority seeking the preservation ;
b the offence that is the subject of a criminal investigation or proceedings and a brief sum-
mary of the related facts;
c the stored computer data to be preserved and its relationship to the offence ;
d any available information identifying the custodian of the stored computer data or the
location of the computer system ;
17
e the necessity of the preservation ; and
f that the Party intends to submit a request for mutual assistance for the search or similar
access, seizure or similar securing, or disclosure of the stored computer data.
3 Upon receiving the request from another Party, the requested Party shall take all appropriate
measures to preserve expeditiously the specified data in accordance with its domestic law. For
the purposes of responding to a request, dual criminality shall not be required as a condition
to providing such preservation.
4 A Party that requires dual criminality as a condition for responding to a request for mutual
assistance for the search or similar access, seizure or similar securing, or disclosure of stored
data may, in respect of offences other than those established in accordance with Articles 2
through 11 of this Convention, reserve the right to refuse the request for preservation under
this article in cases where it has reasons to believe that at the time of disclosure the condition
of dual criminality cannot be fulfilled.
5 In addition, a request for preservation may only be refused if:
a the request concerns an offence which the requested Party considers a political offence or
an offence connected with a political offence, or
b the requested Party considers that execution of the request is likely to prejudice its sove-
reignty, security, ordre public or other essential interests.
6 Where the requested Party believes that preservation will not ensure the future availability of
the data or will threaten the confidentiality of or otherwise prejudice the requesting Party's
investigation, it shall promptly so inform the requesting Party, which shall then determine
whether the request should nevertheless be executed.
7 Any preservation effected in response to the request referred to in paragraph 1 shall be for a
period not less than sixty days, in order to enable the requesting Party to submit a request for
the search or similar access, seizure or similar securing, or disclosure of the data. Following the
receipt of such a request, the data shall continue to be preserved pending a decision on that
request.
Article 30 — Expedited disclosure of preserved traffic data
1 Where, in the course of the execution of a request made pursuant to Article 29 to preserve
traffic data concerning a specific communication, the requested Party discovers that a service
provider in another State was involved in the transmission of the communication, the reques-
ted Party shall expeditiously disclose to the requesting Party a sufficient amount of traffic data
to identify that service provider and the path through which the communication was trans-
mitted.
2 Disclosure of traffic data under paragraph 1 may only be withheld if:
a the request concerns an offence which the requested Party considers a political offence or
an offence connected with a political offence ; or
b the requested Party considers that execution of the request is likely to prejudice its sove-
reignty, security, ordre public or other essential interests.
18
Title 2 — Mutual assistance regarding investigative powers
Article 31 — Mutual assistance regarding accessing of stored computer data
1 A Party may request another Party to search or similarly access, seize or similarly secure, and
disclose data stored by means of a computer system located within the territory of the requested
Party, including data that has been preserved pursuant to Article 29.
2 The requested Party shall respond to the request through the application of international
instruments, arrangements and laws referred to in Article 23, and in accordance with other
relevant provisions of this chapter.
3 The request shall be responded to on an expedited basis where :
a there are grounds to believe that relevant data is particularly vulnerable to loss or modifica-
tion ; or
b the instruments, arrangements and laws referred to in paragraph 2 otherwise provide for
expedited co-operation.
Article 32 — Trans-border access to stored computer data with consent or where publicly
available
A Party may, without the authorisation of another Party :
a access publicly available (open source) stored computer data, regardless of where the data
is located geographically ; or
b access or receive, through a computer system in its territory, stored computer data
located in another Party, if the Party obtains the lawful and voluntary consent of the per-
son who has the lawful authority to disclose the data to the Party through that computer
system.
Article 33 — Mutual assistance in the real-time collection of traffic data
1 The Parties shall provide mutual assistance to each other in the real-time collection of traffic
data associated with specified communications in their territory transmitted by means of a
computer system. Subject to the provisions of paragraph 2, this assistance shall be governed
by the conditions and procedures provided for under domestic law.
2 Each Party shall provide such assistance at least with respect to criminal offences for which
real-time collection of traffic data would be available in a similar domestic case.
Article 34 — Mutual assistance regarding the interception of content data
The Parties shall provide mutual assistance to each other in the real-time collection or recor-
ding of content data of specified communications transmitted by means of a computer system
to the extent permitted under their applicable treaties and domestic laws.
Title 3 — 24/7 Network
Article 35 — 24/7 Network
1 Each Party shall designate a point of contact available on a twenty-four hour, seven-day-a-week
basis, in order to ensure the provision of immediate assistance for the purpose of investigations
19
or proceedings concerning criminal offences related to computer systems and data, or for the
collection of evidence in electronic form of a criminal offence. Such assistance shall include
facilitating, or, if permitted by its domestic law and practice, directly carrying out the following
measures:
a the provision of technical advice ;
b the preservation of data pursuant to Articles 29 and 30;
c the collection of evidence, the provision of legal information, and locating of suspects.
2 a A Party's point of contact shall have the capacity to carry out communications with the
point of contact of another Party on an expedited basis.
b If the point of contact designated by a Party is not part of that Party's authority or authori-
ties responsible for international mutual assistance or extradition, the point of contact shall
ensure that it is able to co-ordinate with such authority or authorities on an expedited
basis.
3 Each Party shall ensure that trained and equipped personnel are available, in order to facilitate
the operation of the network.
Chapter IV — Final provisions
Article 36 — Signature and entry into force
1 This Convention shall be open for signature by the member States of the Council of Europe
and by non-member States which have participated in its elaboration.
2 This Convention is subject to ratification, acceptance or approval. Instruments of ratification,
acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
3 This Convention shall enter into force on the first day of the month following the expiration of
a period of three months after the date on which five States, including at least three member
States of the Council of Europe, have expressed their consent to be bound by the Convention
in accordance with the provisions of paragraphs 1 and 2.
4 In respect of any signatory State which subsequently expresses its consent to be bound by it,
the Convention shall enter into force on the first day of the month following the expiration of
a period of three months after the date of the expression of its consent to be bound by the
Convention in accordance with the provisions of paragraphs 1 and 2.
Article 37 — Accession to the Convention
1 After the entry into force of this Convention, the Committee of Ministers of the Council of Europe,
after consulting with and obtaining the unanimous consent of the Contracting States to the
Convention, may invite any State which is not a member of the Council and which has not parti-
cipated in its elaboration to accede to this Convention. The decision shall be taken by the majority
provided for in Article 20.d. of the Statute of the Council of Europe and by the unanimous vote
of the representatives of the Contracting States entitled to sit on the Committee of Ministers.
2 In respect of any State acceding to the Convention under paragraph 1 above, the Convention
shall enter into force on the first day of the month following the expiration of a period of three
months after the date of deposit of the instrument of accession with the Secretary General of
the Council of Europe.
20
Article 38 — Territorial application
1 Any State may, at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, specify the territory or territories to which this Convention
shall apply.
2 Any State may, at any later date, by a declaration addressed to the Secretary General of the
Council of Europe, extend the application of this Convention to any other territory specified in
the declaration. In respect of such territory the Convention shall enter into force on the first
day of the month following the expiration of a period of three months after the date of receipt
of the declaration by the Secretary General.
3 Any declaration made under the two preceding paragraphs may, in respect of any territory
specified in such declaration, be withdrawn by a notification addressed to the Secretary
General of the Council of Europe. The withdrawal shall become effective on the first day of the
month following the expiration of a period of three months after the date of receipt of such
notification by the Secretary General.
Article 39 — Effects of the Convention
1 The purpose of the present Convention is to supplement applicable multilateral or bilateral
treaties or arrangements as between the Parties, including the provisions of:
- the European Convention on Extradition, opened for signature in Paris, on 13 December 1957
(ETS No. 24) ;
- the European Convention on Mutual Assistance in Criminal Matters, opened for signature
in Strasbourg, on 20 April 1959 (ETS No. 30) ;
- the Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters,
opened for signature in Strasbourg, on 17 March 1978 (ETS No. 99).
2 If two or more Parties have already concluded an agreement or treaty on the matters dealt
with in this Convention or have otherwise established their relations on such matters, or should
they in future do so, they shall also be entitled to apply that agreement or treaty or to regu-
late those relations accordingly. However, where Parties establish their relations in respect of
the matters dealt with in the present Convention other than as regulated therein, they shall do
so in a manner that is not inconsistent with the Convention's objectives and principles.
3 Nothing in this Convention shall affect other rights, restrictions, obligations and responsibilities
of a Party.
Article 40 — Declarations
By a written notification addressed to the Secretary General of the Council of Europe, any
State may, at the time of signature or when depositing its instrument of ratification, accep-
tance, approval or accession, declare that it avails itself of the possibility of requiring additio-
nal elements as provided for under Articles 2, 3, 6 paragraph 1.b, 7, 9 paragraph 3, and 27,
paragraph 9.e.
Article 41 — Federal clause
1 A federal State may reserve the right to assume obligations under Chapter II of this Convention
consistent with its fundamental principles governing the relationship between its central
government and constituent States or other similar territorial entities provided that it is still able
to co-operate under Chapter III.
21
2 When making a reservation under paragraph 1, a federal State may not apply the terms of
such reservation to exclude or substantially diminish its obligations to provide for measures set
forth in Chapter II. Overall, it shall provide for a broad and effective law enforcement capabi-
lity with respect to those measures.
3 With regard to the provisions of this Convention, the application of which comes under the
jurisdiction of constituent States or other similar territorial entities, that are not obliged by the
constitutional system of the federation to take legislative measures, the federal government
shall inform the competent authorities of such States of the said provisions with its favourable
opinion, encouraging them to take appropriate action to give them effect.
Article 42 — Reservations
By a written notification addressed to the Secretary General of the Council of Europe, any
State may, at the time of signature or when depositing its instrument of ratification, accep-
tance, approval or accession, declare that it avails itself of the reservation(s) provided for in
Article 4, paragraph 2, Article 6, paragraph 3, Article 9, paragraph 4, Article 10, paragraph 3,
Article 11, paragraph 3, Article 14, paragraph 3, Article 22, paragraph 2, Article 29, paragraph 4,
and Article 41, paragraph 1. No other reservation may be made.
Article 43 — Status and withdrawal of reservations
1 A Party that has made a reservation in accordance with Article 42 may wholly or partially with-
draw it by means of a 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 states that the withdrawal of a reservation is to take effect on a date
specified therein, and such date is later than the date on which the notification is received by
the Secretary General, the withdrawal shall take effect on such a later date.
2 A Party that has made a reservation as referred to in Article 42 shall withdraw such reserva-
tion, in whole or in part, as soon as circumstances so permit.
3 The Secretary General of the Council of Europe may periodically enquire with Parties that have
made one or more reservations as referred to in Article 42 as to the prospects for withdrawing
such reservation(s).
Article 44 — Amendments
1 Amendments to this Convention may be proposed by any Party, and shall be communicated
by the Secretary General of the Council of Europe to the member States of the Council of
Europe, to the non-member States which have participated in the elaboration of this Convention
as well as to any State which has acceded to, or has been invited to accede to, this Convention
in accordance with the provisions of Article 37.
2 Any amendment proposed by a Party shall be communicated to the European Committee on
Crime Problems (CDPC), which shall submit to the Committee of Ministers its opinion on that
proposed amendment.
3 The Committee of Ministers shall consider the proposed amendment and the opinion submitted
by the CDPC and, following consultation with the 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 para-
graph 3 of this article shall be forwarded to the Parties for acceptance.
5 Any amendment adopted in accordance with paragraph 3 of this article shall come into force on the
thirtieth day after all Parties have informed the Secretary General of their acceptance thereof.
22
Article 45 — Settlement of disputes
1 The European Committee on Crime Problems (CDPC) shall be kept informed regarding the
interpretation and application of this Convention.
2 In case of a dispute between Parties as to the interpretation or application of this Convention,
they shall seek a settlement of the dispute through negotiation or any other peaceful means of
their choice, including submission of the dispute to the CDPC, to an arbitral tribunal whose
decisions shall be binding upon the Parties, or to the International Court of Justice, as agreed
upon by the Parties concerned.
Article 46 — Consultations of the Parties
1 The Parties shall, as appropriate, consult periodically with a view to facilitating :
a the effective use and implementation of this Convention, including the identification of
any problems thereof, as well as the effects of any declaration or reservation made under
this Convention ;
b the exchange of information on significant legal, policy or technological developments
pertaining to cybercrime and the collection of evidence in electronic form ;
c consideration of possible supplementation or amendment of the Convention.
2 The European Committee on Crime Problems (CDPC) shall be kept periodically informed
regarding the result of consultations referred to in paragraph 1.
3 The CDPC shall, as appropriate, facilitate the consultations referred to in paragraph 1 and take the
measures necessary to assist the Parties in their efforts to supplement or amend the Convention.
At the latest three years after the present Convention enters into force, the European Committee
on Crime Problems (CDPC) shall, in co-operation with the Parties, conduct a review of all of
the Convention's provisions and, if necessary, recommend any appropriate amendments.
4 Except where assumed by the Council of Europe, expenses incurred in carrying out the provi-
sions of paragraph 1 shall be borne by the Parties in the manner to be determined by them.
5 The Parties shall be assisted by the Secretariat of the Council of Europe in carrying out their
functions pursuant to this article.
Article 47 — Denunciation
1 Any Party may, at any time, denounce this Convention by means of a notification addressed
to the Secretary General of the Council of Europe.
2 Such denunciation shall become effective on the first day of the month following the expira-
tion of a period of three months after the date of receipt of the notification by the Secretary
General.
Article 48 — Notification
The Secretary General of the Council of Europe shall notify the member States of the Council of
Europe, the non-member States which have participated in the elaboration of this Convention
as well as any State which has acceded to, or has been invited to accede to, this Convention of:
a any signature ;
b the deposit of any instrument of ratification, acceptance, approval or accession ;
c any date of entry into force of this Convention in accordance with Articles 36 and 37;
d any declaration made under Article 40 or reservation made in accordance with Article 42 ;
e any other act, notification or communication relating to this Convention.
23
In witness whereof the undersigned, being
duly authorised thereto, have signed this
Convention.
Done at Budapest, this 23rd day of
November 2001, in English and in French,
both texts being equally authentic, in a
single copy which shall be deposited in the
archives of the Council of Europe. The
Secretary General of the Council of Europe
shall transmit certified copies to each
member State of the Council of Europe, to
the non-member States which have partic-
ipated in the elaboration of this Convention,
and to any State invited to accede to it.
En foi de quoi, les soussignés, dument
autorisés a cet effet, ont signé la présente
Convention.
Fait a Budapest, le 23 novembre 2001, en
français et en anglais, les deux textes
faisant également foi, en un seul exemplai-
re qui sera déposé dans les archives du
Conseil de l'Europe. Le Secretaire Général
du Conseil de l'Europe en communiquera
copie certifiée conforme a chacun des Etats
membres du Conseil de l'Europe, aux Etats
non membres qui ont participé a l'élabora-
tion de la Convention et a tout Etat invite
a y adhérer.
Certified a true copy of the sole original
document, in English and in French, de-
posited in the archives of the Council of
Europe.
Strasbourg, 18 janvier 2002
Copie certifiée conforme a l'exemplaire
original unique en langues française et
anglaise, déposé dans les archives du
Conseil de l'Europe.
The Director General of Legal Affairs Le Directeur Général des Affaires Juridiques
of the Council of Europe, du Conseil de l'Europe,
Guy DE VEL
24
NOTE: English text of Convention will be printed in this publication.



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