Strasbourg, 10 January 1997 Restricted

CM(97)4

For consideration at the 583rd meeting

of the Ministers' Deputies

(4 February 1997, B level, item 10.3)

EUROPEAN COMMITTEE ON CRIME PROBLEMS

(CDPC)

Bureau

(CDPC-BU)

Strasbourg, 21 - 22 November 1996

MEETING REPORT

Introduction

The Bureau of the CDPC met in Strasbourg on 21 and 22 November 1996 on the occasion of the 21st Criminological Research Conference, with Mr Jean-Dominique Schouwey (Switzerland) in the chair.

The list of participants is appended to this report (Appendix I).

The account of the proceedings follows the order of the annotated agenda for the meeting (doc. CDPC-BU (96) 10).

CM(97)4 - 2 -

Item 1: Committee of Experts on crime in cyber-space (PC-CY): terms of reference

At its last plenary session (June 1996), the CDPC decided to include "computer-related crime" as a new activity in its future work programme (first priority). The draft intergovernmental programme of activities for 1997, to be adopted by the Committee of Ministers in December 1996, provides for two meetings of a new committee of experts on crime in cyber-space (PC-CY).

The CDPC asked the Bureau to prepare terms of reference for this new committee. To this end, the Secretariat asked the Heads of Delegations to the CDPC to indicate whether their countries wish to participate in this new activity.

In the light of the information received, the Bureau adopted the terms of reference for Committee PC-CY as they are reproduced in Appendix II below.

Item 2: Committee of Experts on criminal law and criminological aspects of organised crime (PC-CO): terms of reference

At its last plenary session (June 1996), the CDPC decided to include "criminal law and criminological aspects of organised crime" as a new activity in its future work programme (second priority). The draft intergovernmental programme of activities for 1997, to be adopted by the Committee of Ministers in December 1996, provides for two meetings of a new committee of experts (PC-CO).

The CDPC asked the Bureau to prepare, after consultation with the Criminological Scientific Council, the terms of reference for this new committee. To this end, the Secretariat asked the Heads of Delegations to the CDPC to indicate whether their countries wish to participate in this activity.

In the light of the information received and having consulted the CSC (at a joint meeting on 20 November 1996), the Bureau adopted the terms of reference for Committee PC-CO as they are reproduced in Appendix III below.

Item 3: Committee of Experts on mediation in penal matters (PC-MP): amendment to terms of reference

Ireland (by letter of 2 October 1996) and Belgium (by letter of 23 October 1996) requested to be admitted to Committee PC-MP.

The budget provides for the participation of 15 experts. At the moment, there are 14. Hence, there is one vacant seat on the Committee.

In order to satisfy the requests by Ireland and Belgium, the Bureau decided to increase the Committee's membership from 15 to 16 and amend the terms of reference accordingly.

- 3 - CM(97)4

Item 4: Commercial sexual exploitation of children: follow-up to the World Congress (Stockholm, 27 to 31 August 1996)

The Secretariat informed the Bureau that a World Congress against commercial sexual exploitation of children had taken place in Stockholm from 27 to 31 August 1996. It adopted a Declaration and Agenda for Action which emphasises the need for legal means to fight sexual exploitation of children more effectively and improve international co-operation. In view of previous Council of Europe involvement (in particular Recommendation No. R (91) 11) a Council of Europe delegation, headed by the Secretary General and including a member of the CDPC Secretariat, attended the Congress. The Council of Europe had already been involved in the planning stage: it organised a regional consultation in April 1996.

The Bureau held an exchange of views on the possible follow-up to the Stockholm Congress, with a view to making appropriate recommendations to the Plenary. Among the measures which might be taken at European level with a view to implementing the Stockholm Agenda for Action, the Bureau considered:

- setting up a committee of experts on the practical aspects of judicial and police cooperation in the fight against sexual exploitation of children, including the problems of extraterritorial jurisdiction;

- entrusting Committee PC-OC with examining the practical difficulties arising in international legal co-operation with regard to cases involving sexual exploitation of children for commercial purposes;

- examining the problems of communication through Internet, by the new committee of experts on crime in cyber-space (PC-CY);

- examining the problems relating to the management of sex offenders in penal institutions, by the Council for Penological Cooperation (PC-CP);

- completing the survey on the implementation of Recommendation No. R (91) 11.

The Bureau decided to continue the discussion at its next meeting in March 1997, in the light of the plan of action which the European Union intends to adopt.

Item 5: European strategy for children: nomination of a CDPC representative

On 24 January 1996, the Parliamentary Assembly adopted Recommendation 1286 (1996) on a European Strategy for Children. The Committee of Ministers requested the European Committee on Legal Cooperation (CDCJ) and the Steering Committee on Social Policy (CDPS) to give an opinion on the Assembly Recommendation, the latter in collaboration with the steering committees which had representatives on the Childhood

CM(97)4 - 4 -

Policies Project Coordinating Committee. The CDPS decided to convene a planning meeting in February 1997 for the purpose of discussing practical proposals in relation to the implementation of the European strategy for children. As the CDPC was represented on the Childhood Policies Project Coordinating Committee (by Mrs C. SOMERHAUSEN), it has been invited to designate a representative to take part in the proposed planning meeting.

The Bureau designated Ms C SOMERHAUSEN, the former representative of the CDPC on the Childhood Policies Project Coordinating Committee, to take part in the proposed planning meeting.

The Bureau took note of the opinion of the European Committee on Legal Co-operation (CDCJ) on Assembly Recommendation 1286 (1996) on a European strategy for children, as reproduced in Appendix III to document CDCJ (96) 40.

It shared the CDCJ's concern that the setting up of a permanent multidisciplinary intergovernmental structure to deal with all issues relating to children as proposed in paragraph 10.i of the Recommendation, might eventually lead to overlap with work being carried out by other committees dealing with children's issues. In order to avoid such overlap, the tasks of a possible structure as described in paragraph 10.i would need to be clearly defined in relation to other intergovernmental bodies of the Council of Europe.

As regards the obligation for the multidisciplinary structure to draw up a (general) annual report on the state of Europe's children (paragraph 10.ii of the Assembly Recommendation), the Bureau also shared the view of the CDCJ that it would be preferable to prepare, if necessary, a report on a specific topic which was felt to be of particular importance to member States (e.g. sexual exploitation and abuse of children).

Item 6: Police ethics: advisability of setting up a committee of experts

The Bureau was informed that, within the programme of co-operation with countries in Central and Eastern Europe, a multilateral seminar on "Police ethics in a democratic society" had been held in Strasbourg from 10 to 12 June 1996. One of the conclusions of this seminar was that there was a need for a European Code of Police Ethics.

The Bureau held an exchange of views on the advisability of setting up, within the intergovernmental programme of activities, a committee on police matters which could be entrusted inter alia with the preparation of such a European Code of Police Ethics.

It noted that maltreatment of detained persons in police stations was a concern frequently expressed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in its reports, and that the Council's co-operation programmes focused increasingly on questions of policing. It might therefore be appropriate for the CDPC to set up a committee for a study of these problems and other related police matters.

- 5 - CM(97)4

The Bureau decided to consider this matter further at its next meeting in March 1997.

Item 7: Publications relating to CDPC activities

With a view to increasing the general public's awareness of European crime problems in general and CDPC activities in particular, the Secretariat has approached Council of Europe Publishing (formerly Council of Europe Press) who agreed to include in its programme of publications (a) a book on "crime policy in Europe" and (b) a book on "probation in Europe". This implies i.a. that it will bear the publishing costs.

The first would be a collection of articles on subjects relating to crime policy, drawing partially on the reports prepared for the 5th Conference on Crime Policy. Other contributions would be sought from authors representing the different geographic areas of Europe. The Scientific Criminological Council has already agreed to prepare the plan of the book and to advise the Secretariat on potential contributors. The book would aim at reaching a large audience all over Europe.

The second book would be an update to an earlier work first published in 1982 by the European Conference on Probation, containing a description of probation systems in Europe. The update has been done at the University of Tilburg under the responsibility of Professor Anton van Kalmthout. The Scientific Criminological Council has agreed to read the draft and, if appropriate, to recommend its publication by the Council of Europe.

The Bureau expressed a favourable opinion on these plans and agreed to the publication of the two books, subject to editorial supervision by the Criminological Scientific Council.

Item 8: Items for information

The Bureau took note of information provided on the following activities:

- report on the 45th plenary session: decisions by the Committee of Ministers

- 46th plenary session: confirmation of dates (2 - 6 June 1997)

- 12th Conference of Directors of Prison Administration: new dates (25 - 28 November 1997)

- new CDPC activities: implementation of the European rules on community sanctions (PC-ER) and prison overcrowding (PC-SP)

- operation of European conventions in the penal field (PC-OC)

- Multidisciplinary Group on Corruption (GMC)

CM(97)4 - 6 -

- EU Convention on Extradition

- draft Protocol No. 12 to the European Convention on Human Rights securing certain additional rights to persons deprived of their liberty

- judicial co-operation in the prosecution of offences of a racist or xenophobic nature

- mutual evaluation programme for anti-money laundering measures in Central and Eastern Europe

- "Octopus" Project on money laundering and organised crime.

Item 9: Other business

a) Request for observer status on Committee PC-PR

By letter dated 18 November 1996, "Magistrats européens pour la démocratie et les libertés" (MEDEL) requested to be admitted as an observer to Committee PC-PR.

MEDEL is a European association of judges and public prosecutors which enjoys consultative status with the Council of Europe and with which the Secretariat co-operates within the framework of the programmes of co-operation with Central and Eastern European countries.

Satisfied that MEDEL could usefully contribute to the work of Committee PC-PR, the Bureau decided to admit this organisation as an observer to the Committee.

b) Meeting of European Ministers of Justice (Prague, 11 June 1997)

At the invitation of the Czech authorities, an informal meeting of European Ministers of Justice is scheduled to take place in Prague on 11 June 1997, to consider "links between corruption and organised crime".

The Bureau was informed of the intention of the Minister of Justice of the Czech Republic to host a formal two-day Conference (which would be the 21st) instead: it would be held on 10 and 11 June 1997.

The Bureau welcomed the initiative and fully endorsed it. It considered that the importance and topicality of the Conference theme merited giving it a more thorough attention than could be given to it at a one-day informal meeting, particularly in view of the work already being carried out within the Octopus Project and by the newly created committee of experts on the penal law and criminological aspects of organised crime (PC-CO) which is expected to have its first meeting in early 1997. Moreover, the holding of a formal Conference would enable Ministers to adopt a resolution at the issue of their deliberation, thus giving political impetus and providing guidance to the activities of the CDPC in this field.

- 7 - CM(97)4

c) Organisation and procedure of plenary sessions

Mrs M. Bonn, member of the Bureau, invited her colleagues to discuss questions of organisation and procedure of the CDPC's plenary sessions relating to such matters as the approval of draft conventions and recommendations, the role of observers, the election procedure and the distribution of working documents, with a view to adapting these procedures to changed circumstances in the light of the recent increase in the steering committee's membership.

Because of lack of time, the Bureau decided to postpone consideration of these questions until its next meeting in March 1997.

d) Conventions in the penal field

At its 33rd meeting from 30 September to 2 October 1996, Committee PC-OC discussed the advisability of including provisions on international legal co-operation, in particular on mutual assistance, in sectorial conventions in the penal field: it considered that this practice ran counter to the effectiveness of international co-operation, especially because practitioners faced practical difficulties in dealing with different provisions in the various treaties. It was pointed out that a number of existing instruments already include provisions on mutual assistance specific to certain fields (e.g. drug-related crime, money laundering). A proliferation of such instruments should be avoided. Convention ETS 30 was in the process of being updated in order to take care of new developments both in crime and in European co-operation. Committee PC-OC believes that, for reasons of efficiency and unity of action, any intended developments in international legal co-operation in Europe should be examined within the PC-OC.

The Bureau decided to give further consideration to this matter at its next meeting in March 1997. It will then decide whether this matter should be included in the agenda of the CDPC's next plenary session.

Item 10: Next Bureau meeting

The Bureau decided to hold its next meeting in Paris on 6 and 7 March. On that occasion, it will also hold a joint meeting with the Bureau of the CDCJ for examining the draft Framework Convention against Corruption which is currently being prepared by the Multidisciplinary Group on Corruption (GMC).

- 9 - CM(97)4

APPENDIX I / ANNEXE I

LIST OF PARTICIPANTS / LISTE DES PARTICIPANTS

AUSTRIA/AUTRICHE

Mr R. MIKLAU, Bundesministerium für Justiz, WIEN - Apologised/Excusé

FRANCE

M. Ph. LABREGERE, Ministère de la Justice, PARIS - Apologised/Excusé

HUNGARY / HONGRIE

Mr K. BÁRD, Ministry of Justice, BUDAPEST

ITALY/ITALIE

M. V. ESPOSITO, Ministère des Affaires Etrangères, ROME

MALTA / MALTE

Mr J. FILLETTI, The Law Courts, VALLETTA

NETHERLANDS/PAYS-BAS

Mrs M. BONN, Ministry of Justice, THE HAGUE

SWITZERLAND / SUISSE

M. J.-D. SCHOUWEY, Département Fédéral de Justice et Police, BERNE - Chairman of the CDPC / Président du CDPC

SECRETARIAT

Mr H.-J. BARTSCH, Head of the Division of Crime Problems/Chef de la Division des Problèmes Criminels

Mr C. CUNHA, Principal Administrative Officer/Administrateur Principal

Mr M. LEZERTUA, Principal Administrative Officer/Administrateur Principal

Mr W. RAU, Principal Administrative Officer/Administrateur Principal

Mr P. CSONKA, Administrative Officer/Administrateur

- 11 - CM(97)4

APPENDIX II

SPECIFIC TERMS OF REFERENCE

DECISION CDPC/103/211196

1. Name of the Committee: COMMITTEE OF EXPERTS ON CRIME IN CYBER-SPACE (PC-CY)

2. Type of the Committee: Committee of Experts

3. Source of terms of reference: European Committee on Crime Problems (CDPC)

4. Terms of reference:

a. The fast developments in the field of information technology have a direct bearing on all sections of modern society. The integration of telecommunication and information systems, enabling the storage and transmission, regardless of distance, of all kinds of communication opens a whole range of new possibilities. These developments were boosted by the emergence of information super-highways and networks, including the Internet, through which virtually anybody will be able to have access to any electronic information service irrespective of where in the world he is located. By connecting to communication and information services users create a kind of common space, called "cyber-space", which is used for legitimate purposes but may also be the subject of misuse. These "cyber-space offences" are either committed against the integrity, availability, and confidentiality of computer systems and telecommunication networks or they consist of the use of such networks of their services to commit traditional offences. The transborder character of such offences, e.g. when committed through the Internet, is in conflict with the territoriality of national law enforcement authorities.

b. The criminal law must therefore keep abreast of these technological developments which offer highly sophisticated opportunities for misusing facilities of the cyber-space and causing damage to legitimate interests. Given the cross-border nature of information networks, a concerted international effort is needed to deal with such misuse. Whilst Recommendation No (89) 9 resulted in the approximation of national concepts regarding certain forms of computer misuse, only a binding international instrument can ensure the necessary efficiency in the fight against

CM(97)4 - 12 -

these new phenomena. In the framework of such an instrument, in addition to measures of international co-operation, questions of substantive and procedural law, as well as matters that are closely connected with the use of information technology, should be addressed.

c. The Committee's terms of reference are as follows:

Examine, in the light of Recommendations No R (89) 9 on computer-related crime and No R (95) 13 concerning problems of criminal procedural law connected with information technology, in particular the following subjects:

i) cyber-space offences, in particular those committed through the use of telecommunication networks, e.g. the Internet, such as illegal money transactions, offering illegal services, violation of copyright, as well as those which violate human dignity and the protection of minors;

ii) other substantive criminal law issues where a common approach may be necessary for the purposes of international co-operation such as definitions, sanctions and responsibility of the actors in cyber-space, including Internet service providers;

iii) the use, including the possibility of transborder use, and the applicability of coercive powers in a technological environment, e.g. interception of telecommunications and electronic surveillance of information networks, e.g. via the Internet, search and seizure in information-processing systems (including Internet sites), rendering illegal material inaccessible and requiring service providers to comply with special obligations, taking into account the problems caused by particular measures of information security, e.g. encryption ;

iv) the question of jurisdiction in relation to information technology offences, e.g. to determine the place where the offence was committed (locus delicti) and which law should accordingly apply, including the problem of ne bis idem in the case of multiple jurisdictions and the question how to solve positive jurisdiction conflicts and how to avoid negative jurisdiction conflicts;

v) questions of international co-operation in the investigation of cyber-space offences, in close co-operation with the Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC).

The Committee should draft a binding legal instrument, as far as possible, on the items i) - v), with particular emphasis on international questions and, if appropriate, accessory recommendations regarding specific issues. The Committee may make suggestions on other issues in the light of technological developments.

- 13 - CM(97)4

5. Membership of the Committee:

a. One expert appointed by the Government of each of the following member States: Belgium, Bulgaria, Czech Republic, Estonia, Finland, France, Germany, Greece, Italy, Latvia, Netherlands (*), Portugal (*), Sweden, "The Former Yugoslav Republic of Macedonia",

(*) participate at their own expense

as well as two scientific experts appointed by the Secretariat.

b. The Council of Europe's budget bears the travel expenses of one expert from each of the above-mentioned member States (save Netherlands and Portugal), as well as those of the two scientific experts.

c. Members' desirable qualifications: prosecutors or judges dealing with computer crime cases, experts in the field of substantive and procedural law aspects of computer crime, experts having carried out research in this field; persons appointed should also have international experience and sufficient knowledge of the technical aspects of computer crime. Members of previous Council of Europe expert committees on computer-related crime would be preferable.

d. The Commission of the European Communities and the Secretariat General of the Council of the European Union may send a representative to meetings of the Committee, without the right to vote or defrayal of expenses.

e. The following States or Organisations may send a representative to meetings of the Committee, without the right to vote or defrayal of expenses:

- United States of America, Canada, Japan

f. The Bureau of the CDPC may authorise the admission of other observers to the Committee.

6. Working structures and methods:-

7. Duration:

These terms of reference will expire on 31 December 1999.

- 15 - CM(97)4

APPENDIX III

SPECIFIC TERMS OF REFERENCE

DECISION CDPC/104/211196

1. Name of Committee: COMMITTEE OF EXPERTS ON CRIMINAL LAW AND CRIMINOLOGICAL ASPECTS OF ORGANISED CRIME

(PC-CO)

2. Type of Committee: Committee of experts

3. Source of terms

of reference: European Committee on Crime Problems (CDPC)

4. Terms of reference:

The term "organised crime" is widely used nowadays. No internationally recognised definition exists, but legal definitions of, or references to, organised crime, i.e. offences committed by structured groups in an organised manner, can be found in the legislation of several member States.

It is difficult to ascertain, not only the existence of criminal organisations, but also their features, including their modus operandi. A better knowledge of how such organisations are operating is essential for fighting them effectively. That knowledge should be shared amongst member States. However, common criteria need to be established to obtain comparable national data on organised crime. By analysing these data, an integrated European approach (strategy) could be developed, with a view to overcoming the differences in the legal systems of member States concerning organised crime. This analysis may also result in recommendations regarding law enforcement structures and investigation methods.

C. The Committee's terms of reference are as follows:

Examine, in the light of Recommendation N° R (96) 8 on crime policy in a time of change, with a view to preparing a report and, if appropriate, recommendations, the following questions :

a) Characteristics of organised crime

1. analysis, with a view to providing explanation, of the current situation of organised crime, from a qualitative as well as a quantitative viewpoint, with particular emphasis on:

CM(97)4 - 16 -

- the political, social (environmental) economic, legal and regulatory factors that facilitate the emergence and/or unrelenting level of organised crime;

- the description of offences committed, including the modus operandi of the organisations committing these offences (taking into account their national or transnational character);

- the description of the degree of organisation (e.g. ad hoc criminal groups, structured criminal networks, mafia-type organisations);

- the description of offenders (young people or adults, nationals or aliens, legal persons, national or transnational).

b) Measures with a view to preventing and combating organised crime

Assessment of the domestic responses to organised crime, implemented or envisaged, the resources necessary for them (material as well as know-how), and the means of information and evaluation available. In this context, in particular the following should be taken into account, in relation to the phenomena referred to under (a) above :

- legislative measures;

- social (prevention) measures (e.g. social and economic policy, education, information, welfare);

- situational (prevention) measures (e.g. measures to reduce the opportunities and means of committing offences);

-improvement in the working of the criminal justice system (e.g. training and specialisation, simplification of procedures, elaboration of new investigative techniques or intervention of new actors such as financial institutions).

c) Study of national legislation in relation to organised crime

To the extent that it appears necessary for preventing or combating organised crime, national legislations in this area should be studied in order to :

- identify existing solutions that could serve as examples;

- ascertain the criteria used in national legislations to qualify offences as "committed in an organised manner", "conspiracy" or "association de malfaiteurs" with a view to overcoming the difficulties arising, e.g. in international co-operation, from the differences in these concepts, for example by establishing common criteria;

- 17 - CM(97)4

- identify lacunae in international co-operation instruments and possible solutions which could be included in such instruments, taking into account the work carried out by the Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC);

- prepare common procedural principles, especially in relation to banking secrecy, the admissibility of certain types of evidence or the length and effect of statutory limitation periods;

- define common objectives of criminal policy in relation to organised crime.

5. Membership of the Committee:

a. - One expert appointed by the Government of each of the following member States: Albania, Austria (*), Belgium (*), Bulgaria, Czech Republic, Estonia, France (*), Hungary, Latvia, Lithuania, Malta, Poland, Portugal (*), Slovenia, Spain, "The Former Yugoslav Republic of Macedonia",