www.coe.int/TCY

 

 

 

 

 

Strasbourg, 21 June 2015

T-CY (2015)03

Cybercrime Convention Committee (T-CY)

 

Assessing implementation of the Budapest Convention on Cybercrime

 

Questionnaire on Sanctions and Measures (Article 13)

 

Adopted by the 13th Plenary of the T-CY on 16 June 2015

 

 

 

 

1                        Criminal sanctions

 

1.1                 General provisions

 

Q 1.1.1      Please summarise the text of your general provisions regarding criminal liability and sanctions

 

Intent, negligence/recklessness
Aggravating/mitigating circumstances
Conditions for suspended sentences
Minimum/maximum penalty
Alternative or cumulative sanctions
Multiple crimes, recidivism
Incitement, aiding, abetting and attempt
Sentences if by summary trial / by indictment
Other general provisions

 

1.2                 Criminal sanctions for specific offences

 

Q 1.2.1      Sanctions for illegal access to a computer system

 

Budapest Convention Art. 2 Illegal access to a computer system	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 computer system.
Corresponding domestic provision:
Intent, negligence/recklessness
Aggravating circumstances
Minimum, maximum penalty
Attempt
Sanctions for legal persons[1]
Additional comments

 

 

 

 

 

 

Q 1.2.2      Sanctions for illegal interception

 

Budapest Convention Art. 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 dishonest intent, or in relation to a computer system that is connected to another computer system.
Corresponding domestic provision:
Intent, negligence/recklessness
Aggravating circumstances
Minimum/maximum penalty
Attempt
Sanctions for legal persons[2]
Additional comments

 

Q 1.2.3      Sanctions for data interference

 

Budapest Convention Art. 4 Data interference	1Each 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, deletion, deterioration, alteration or suppression of computer data without right.   2A Party may reserve the right to require that the conduct described in paragraph 1 result in serious harm.
Corresponding domestic provision:
Intent, negligence/recklessness
Aggravating circumstances
Minimum/maximum penalty
Attempt
Sanctions for legal persons[3]
Additional comments

 

 

 

 

 

 

 

Q 1.2.4      Sanctions for system interference

 

Budapest Convention Art. 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.
Corresponding domestic provision:
Intent, negligence/recklessness
Aggravating circumstances
Minimum/maximum penalty
Attempt
Sanctions for legal persons[4]
Additional comments

 

Q 1.2.5      Sanctions for misuse of devices

 

Budapest Convention Art. 6 Misuse of Devices	See appendix
Corresponding domestic provision:
Intent, negligence/recklessness
Aggravating circumstances
Minimum/maximum penalty
Attempt
Sanctions for legal persons[5]
Additional comments

 

Q 1.2.6      Sanctions for computer-related forgery

 

Budapest Convention Art. 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 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, regardless 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.
Corresponding domestic provision:
Intent, negligence/recklessness
Aggravating circumstances
Minimum/maximum penalty
Attempt
Sanctions for legal persons[6]
Additional comments

 

Q 1.2.7      Sanctions for computer-related fraud

 

Budapest Convention Art. 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:   aany input, alteration, deletion or suppression of computer data; bany 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.
Corresponding domestic provision:
Intent, negligence/recklessness
Aggravating circumstances
Minimum/maximum penalty
Attempt
Sanctions for legal persons[7]
Additional comments

 

Q 1.2.8      Sanctions for child pornography

 

Budapest Convention Art. 9  Child pornography	See appendix
Corresponding domestic provision:
Intent, negligence/recklessness
Aggravating circumstances
Minimum/maximum penalty
Attempt
Sanctions for legal persons[8]
Additional comments

 

 

 

 

 

 

 

Q 1.2.9      Sanctions for Offences related to infringements of copyright and related rights

 

 

 

Budapest Convention Art. 10  Offences related to infringements of copyright and related rights	See appendix
Corresponding domestic provision:
Intent, negligence/recklessness
Aggravating circumstances
Minimum/maximum penalty
Attempt
Sanctions for legal persons[9]
Additional comments

 

 

 

Q 1.2.10  Are there any domestic guidelines for prosecutors or judges when imposing certain criminal sanctions, specifically for the crimes covered by Articles 2-11 Budapest Convention?

 

 

Q 1.2.11  Does national legislation allow for using a combination of several criminal sanctions (e.g deprivation of liberty, fines) against natural persons for crimes described in Articles 2-11 Budapest Convention and under what circumstances?

 

 

 

1.3                 Liability of legal persons[10]

 

 

Q 1.3.1      Are legal persons liable for the crimes corresponding to those covered by Articles 2-11 Budapest Convention? 

 

 

Q 1.3.2      What are the corresponding applicable sanctions?

 

 

 

 

 

 

 

 

 

 

2                        Other measures

 

2.1                 Confiscation[11]

 

Q 2.1.1      Does national legislation allow for confiscation of the instrumentalities that have been used to commit a criminal offence?

 

 

Q 2.1.2      What are the legal requirements?

 

 

Q 2.1.3      Does national legislation allow for the confiscation of the proceeds of crime, including from third persons?

 

 

Q 2.1.4      What are the legal requirements?

 

 

2.2                 Additional measures

 

Q 2.2.1      Does domestic legislation provide for additional measures?

 

 

3                        Statistics on sanctions and measures

 

Q 3.1.1      Please provide, if available data/statistics on sanction and measures.

 

4                        Examples of sanctions and measures

 

4.1                 Typical examples of sanctions for natural persons

 

Q 4.1.1      Please provide examples of sanctions for natural persons, including court rulings, if available.

 

 

4.2                 Typical examples of sanctions for legal persons

 

Q 4.2.1      Please provide examples of sanctions for legal persons, including court rulings, if available.

 

 

4.3                 Practice concerning confiscation

 

Q 4.3.1      Please provide examples regarding confiscation, including court rulings, if available.

 

Appendix: Extracts of the Budapest Convention on Cybercrime

 

Article 13 – Sanctions and measures

 

1Each 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.

 

2Each 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.

 

Explanatory Report

Sanctions and measures (Article 13)

128. This article is closely related to Articles 2-11, which define various computer- or computer-related crimes that should be made punishable under criminal law. In accordance with the obligations imposed by those articles, this provision obliges the Contracting Parties to draw consequences from the serious nature of these offences by providing for criminal sanctions that are 'effective, proportionate and dissuasive' and, in the case of natural persons, include the possibility of imposing prison sentences.

129. Legal persons whose liability is to be established in accordance with Article 12 shall also be subject to sanctions that are 'effective, proportionate and dissuasive', which can be criminal, administrative or civil in nature. Contracting Parties are compelled, under paragraph 2, to provide for the possibility of imposing monetary sanctions on legal persons.

130. The article leaves open the possibility of other sanctions or measures reflecting the seriousness of the offences, for example, measures could include injunction or forfeiture. It leaves to the Parties the discretionary power to create a system of criminal offences and sanctions that is compatible with their existing national legal systems.

 

Substantive criminal law provisions

 

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 computer 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 dishonest intent, or in relation to a computer system that is connected to another computer system.

 

Article 4 –Data interference

 

1Each 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, deletion, deterioration, alteration or suppression of computer data without right.

 

2A 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

 

1Each 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:

 

athe production, sale, procurement for use, import, distribution or otherwise making available of:

 

ia device, including a computer program, designed or adapted primarily for the purpose of committing any of the offences established in accordance with the above Articles 2 through 5;

 

iia 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

 

bthe 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.

 

2This 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.

 

3Each 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.

 

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 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, regardless 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:

 

aany input, alteration, deletion or suppression of computer data;

 

bany 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.

 

Article 9 –Offences related to child pornography

 

1Each 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:

 

aproducing child pornography for the purpose of its distribution through a computer system;

 

boffering or making available child pornography through a computer system;

 

cdistributing or transmitting child pornography through a computer system;

 

dprocuring child pornography through a computer system for oneself or for another person;

 

epossessing child pornography in a computer system or on a computer-data storage medium.

 

2For the purpose of paragraph 1 above, the term “child pornography” shall include pornographic material that visually depicts:

 

aa minor engaged in sexually explicit conduct;

 

ba person appearing to be a minor engaged in sexually explicit conduct;

 

crealistic images representing a minor engaged in sexually explicit conduct.

 

3For 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.

 

4Each Party may reserve the right not to apply, in whole or in part, paragraphs 1, sub-paragraphs d. and e, and 2, sub-paragraphs b. and c.

 

Title 4 – Offences related to infringements of copyright and related rights

 

Article 10 –Offences related to infringements of copyright and related rights

 

1Each 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.

 

2Each 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.

 

3A 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.

 

 

Article 11 –Attempt and aiding or abetting

 

1Each 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.

 

2Each 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.

3Each Party may reserve the right not to apply, in whole or in part, paragraph 2 of this article.

 

 

 

 

 

[1] Reply only required if this question is not covered under question 1.3 below.

[2] Reply only required if this question is not covered under question 1.3 below.

[3] Reply only required if this question is not covered under question 1.3 below.

[4] Reply only required if this question is not covered under question 1.3 below.

[5] Reply only required if this question is not covered under question 1.3 below.

[6] Reply only required if this question is not covered under question 1.3 below.

[7] Reply only required if this question is not covered under question 1.3 below.

[8] Reply only required if this question is not covered under question 1.3 below.

[9] Reply only required if this question is not covered under question 1.3 below.

[10] Replies only required in case this question has not been answered under question 1.2 above.

[11] For the meaning of this and other terms of this section, see Article 1 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism http://conventions.coe.int/Treaty/EN/Treaties/Html/198.htm:

a   "proceeds" means any economic advantage, derived from or obtained, directly or indirectly, from criminal offences. It may consist of any property as defined in sub‑paragraph b of this article;

b   "property" includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title to or interest in such property;

c   "instrumentalities" means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences;

d   "confiscation" means a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property;

 

However, your domestic definitions prevail when answering these questions.