|
RAPPORTEUR GROUP |
Legal co-operation |
GR-J(2017)16 |
24 August 2017[1] |
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Convention on Cybercrime (ETS No. 185) – Request by Cabo Verde to be invited to accede
Item to be considered by the GR-J at its meeting on 14 September 2017 |
1. By letter dated 8 February 2016, received and registered at the Secretariat General on 18 February 2016, Mr Jorge Borges, Ambassador of Cabo Verde to the Kingdom of Belgium and the European Union, informed the Secretary General about the wish of the Government of Cabo Verde to be invited to accede to the Convention on Cybercrime (ETS No. 185) (see Appendix 1).
2. According to Article 37, paragraph 1, of the Convention and in line with the practice of the Council of Europe as revised in March 2015, the Secretariat proceeded to a consultation of member States of the Council of Europe and non-member States which are Parties to the Convention, requesting them to communicate to the Secretariat whether their authorities would object to the accession of Cabo Verde to the Convention on Cybercrime if the request to be invited to accede was formally submitted to the Committee of Ministers. The deadline for replying was 2 June 2016. Some States communicated their objections to the Secretariat. Following these objections, Cabo Verde provided the requested additional information on 21 March 2017 (see Appendix 2) and the objections were withdrawn on 8 June 2017.
3. An information note of the Secretariat of the Cybercrime Convention Committee (T-CY) on co‑operation with Cabo Verde appears in Appendix 3.
4. The relevant provisions of the Convention on Cybercrime can be summarised as follows.
a. Summary of the Convention
5. The Convention on Cybercrime (ETS No. 185) was opened for signature by the member States of the Council of Europe and by non-member States having participated in its elaboration, in Budapest, on 23 November 2001. It entered into force on 1 July 2004. The chart of signatures and ratifications appears in Appendix 4.
6. The Convention is the first international treaty on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. It also provides a series of procedural powers, such as the search for computer networks and the interception of data. Its main objective, set out in the preamble, is “to pursue a common criminal policy aimed at the protection of society against cybercrime, inter alia by adopting appropriate legislation and fostering international co-operation”.
7. The Convention has been complemented by an Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (ETS No. 189), which was opened for signature on 28 January 2003 and entered into force on 1 March 2006. States having acceded to the Convention are entitled to accede to the Protocol thereto.
b. Procedure for accession
8. Article 37, paragraph 1, of the Convention on Cybercrime provides that:
"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 participated 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.”
9. Given the above, the Deputies may wish to invite Cabo Verde to accede to the Convention on Cybercrime.
Appendix 1
Appendix 2
Appendix 3
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www.coe.int/cybercrime |
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Strasbourg, 16 March 2016 |
T-CY (2016)8E Restricted |
Cybercrime Convention Committee (T-CY)
Co-operation with Cape Verde
Note by the Secretariat
The Government of Cape Verde, by letter of the Ambassador of Cape Verde in Brussels dated 8 February 2016, submitted a request for accession to the Budapest Convention on Cybercrime as well as to Data Protection Convention 108. The purpose of the present note is to provide supplementary information on the state of co-operation with Cape Verde in cybercrime matters, including an overview of implementation of the principles of the Budapest Convention.
2. Co-operation with Cape Verde
Co-operation between the Council of Europe and Cape Verde in cybercrime matters has been somewhat limited so far.
In March 2014, representatives of Cape Verde participated in a regional workshop on cybercrime legislation in Ghana organised by the Council of Europe in co-operation with other organisations.[2] That led to discussions with the authorities regarding possible accession to the Budapest Convention.
In November 2014, the Parliament of Cape Verde approved accession to the Budapest Convention (Resolution 116/VIII/2014).
Moreover, Cape Verde is co-operating with other Parties to the Budapest Convention in cybercrime matters. For example, with the support of Portugal, training for prosecutors and legal officers on cybercrime and electronic evidence was organised in April 2014. Cape Verde participated in a workshop on cybercrime for countries of Portuguese-speaking countries of Africa in Mozambique organised by the US Department of State and the Department of Justice in August 2015.
The “Seventh Cabo Verde-EU political dialogue meeting at ministerial level” in October 2015 identified cybercrime as a priority area for co-operation.
The accession request of Cape Verde states that “Cape Verde will be fully committed to adopt legislative and other measures as may necessary, under its domestic law, to converge with these two (2) Conventions” (that is, Budapest Convention and Convention 108).
Legal and other measures against cybercrime are part of the Cyber Security Strategy adopted by the Government of Cape Verde in February 2016.
The Secretariat of the T-CY received additional information by email from the Embassy of Cape Verde in Brussels dated 10 March 2016, regarding legislative developments, including a copy of the draft law on cybercrime which was pending approval by the Government.[3]
3.1. Substantive and procedural laws
The legislation in force covers some aspects of the Budapest Convention, such as computer fraud or child pornography in the Penal Code or interception of communications in the Criminal Procedure Code. Decree-Law 7/2005 (legal framework on networks and electronic communications and Decree-Law 33/2007 (legal framework of the electronic signature and e-commerce) provide complementary regulations and have been inspired by European Union standards.
The draft Law on Cybercrime transmitted to the T-CY Secretariat closely follows the legislation of Portugal and – once adopted – would bring the domestic law of Cape Verde in line with the Budapest Convention.
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Provisions of Budapest Convention |
Equivalent in domestic legislation |
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Definitions (Art. 1) |
Article 2 Draft Law on Cybercrime |
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Substantive law |
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Illegal access (Art. 2) |
Article 6 Draft Law on Cybercrime |
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Illegal interception (Art 3) |
Article 7 Draft Law on Cybercrime |
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Data interference (Art. 4) |
Article 4 Draft Law on Cybercrime |
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System interference (Art. 5) |
Article 5 Draft Law on Cybercrime |
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Misuse of devices (Art. 6) |
Article 3 nr 4, Article 4 nr 3, Article 5 nr 2, Article 6 nr 2 and Article 7 nr 3 Draft law on Cybercrime |
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Forgery (Art. 7) |
Article 3 Draft Law on Cybercrime |
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Fraud (Art. 8) |
Article 212 Penal Code |
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Child pornography (Art. 9) |
Article 9 Draft Law on Cybercrime and Article 150 Penal Code |
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Copyright and related rights (Art. 10) |
Article 8 Draft Law on Cybercrime |
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Attempt and aiding or abetting (Art. 11) |
Articles 21 and 22 Penal Code (attempt), Articles 26 and 27 Penal Code (aiding and abetting) |
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Corporate liability (Art. 12) |
Article 10 Draft Law on Cybercrime |
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Procedural law |
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Expedited preservation (Art. 16) |
Article 13 Draft Law on Cybercrime |
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Expedited preserv. & partial disclosure (Art. 17) |
Article 14 Draft Law on Cybercrime |
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Production order (Art. 18) |
Article 15 Draft Law on Cybercrime |
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Search and seizure (Art 19) |
Articles 16, 17 and 18 Draft Law on Cybercrime |
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Real-time collection of traffic data (Art. 20) |
Article 19, No. 3 Draft Law on Cybercrime |
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Interception of content data (Art. 21) |
Article 19 Draft Law on Cybercrime |
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International co-operation |
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Extradition (Art. 24) |
Articles 31 to 68 Law 6/VII/2011 (on international co-operation in criminal matters) |
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General principles relating to mutual legal assistance (Art. 25) |
Article 21 Draft Law on Cybercrime |
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Expedited preservation of stored computer data (Art. 29) |
Articles 23 and 24 Draft Law on Cybercrime |
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Expedited disclosure of preserved traffic data (Art. 30) |
Articles 23 and 24 Draft Law on Cybercrime |
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Mutual assistance regarding accessing of stored computer data (Art. 31) |
Article 25 Draft Law on Cybercrime |
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Trans-border access to stored computer data with consent or where publicly available (Art. 32) |
Article 26 Draft Law on Cybercrime |
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Mutual assistance in the real-time collection of traffic data (Art. 33) |
Article 27 and Article 19, No.3 Draft law on Cybercrime |
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Mutual assistance in the interception of content data (Art. 34) |
Article 27 Draft Law on Cybercrime |
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24/7 Network (Art. 35) |
Article 22 Draft Law on Cybercrime |
3.2. Safeguards and conditions
Article 15 of the Budapest Convention requires Parties to:
“… 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 proportionality.”
In Cape Verde, the procedural powers foreseen in the draft law regarding search, seizure, production orders, and interception of data are subject to court orders (Articles 16, 17, 18 and 19 of the Draft Law on Cybercrime). These safeguards are also present in the general procedural law (Articles 234 to 258 of the Code of Penal Procedure). Additional conditions apply to interceptions as the most intrusive measure (Article 19 Draft Law on Cybercrime and Article 255 of the Code of Penal Procedure). These safeguards are directly inspired by Articles 42 and 43 of the Constitution of the Republic of Cabo Verde.
The Constitution of Cape Verde provides for the protection of fundamental rights and freedoms, including safeguards applicable to criminal investigations (see Articles 34 and 35).
Cape Verde is Party to a number of international human rights treaties such as the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention against Torture and Cruel, Inhuman or Degrading Treatment of Punishment and others.
The death penalty is not foreseen. The last execution was performed in 1835.
Cape Verde has adopted data protection legislation and is also requesting accession to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS 108).
Information and communication technologies play an important role for the socio-economic development of Cape Verde, but this comes along with increasing risks such as cybercrime.
The Government of Cape Verde has taken, therefore, a number of decisions regarding cybercrime, cybersecurity and the protection of personal data.
These include the preparation of a draft law on cybercrime which would bring domestic law largely in line with the Budapest Convention.
In its accession request, the authorities expressed their commitment to adopt legislation. It is assumed that Cape Verde would not complete the accession to the Convention prior to the necessary legislation having been adopted.
Although Cape Verde has benefitted from some training on cybercrime and electronic evidence further capacity building would be necessary.
Given the expressed commitment to implement the Budapest Convention, Cape Verde may thus become a priority country for capacity building projects implemented by the Council of Europe and serve as an example for Portuguese-speaking countries of Africa.
In case of need for additional information please contact:
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Alexander Seger Executive Secretary Cybercrime Convention Committee Directorate General of Human Rights and Rule of Law Council of Europe, Strasbourg, France |
Tel +33-3-9021-4506 Fax +33-3-9021-5650 Email [email protected] |
Appendix 4
Chart of signatures and ratifications of Convention 185
Convention on Cybercrime
Status as of 23/08/2017
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Title |
Convention on Cybercrime |
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|
Reference |
CETS No.185 |
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|
Opening of the treaty |
Budapest, 23/11/2001 - Treaty open for signature by the member States and the non-member States which have participated in its elaboration and for accession by other non-member States |
|||||||||||||
|
Entry into Force |
01/07/2004 - 5 Ratifications |
|||||||||||||
|
Members of Council of Europe |
||||||||||||||
|
Signature |
Ratification |
Entry into Force |
Notes |
R. |
D. |
A. |
T. |
C. |
O. |
|||||
|
Albania |
23/11/2001 |
20/06/2002 |
01/07/2004 |
A. |
||||||||||
|
Andorra |
23/04/2013 |
16/11/2016 |
01/03/2017 |
R. |
D. |
A. |
||||||||
|
Armenia |
23/11/2001 |
12/10/2006 |
01/02/2007 |
A. |
||||||||||
|
Austria |
23/11/2001 |
13/06/2012 |
01/10/2012 |
R. |
D. |
A. |
||||||||
|
Azerbaijan |
30/06/2008 |
15/03/2010 |
01/07/2010 |
R. |
D. |
A. |
T. |
|||||||
|
Belgium |
23/11/2001 |
20/08/2012 |
01/12/2012 |
R. |
D. |
A. |
||||||||
|
Bosnia and Herzegovina |
09/02/2005 |
19/05/2006 |
01/09/2006 |
A. |
||||||||||
|
Bulgaria |
23/11/2001 |
07/04/2005 |
01/08/2005 |
R. |
D. |
A. |
||||||||
|
Croatia |
23/11/2001 |
17/10/2002 |
01/07/2004 |
A. |
||||||||||
|
Cyprus |
23/11/2001 |
19/01/2005 |
01/05/2005 |
A. |
||||||||||
|
Czech Republic |
09/02/2005 |
22/08/2013 |
01/12/2013 |
R. |
D. |
A. |
||||||||
|
Denmark |
22/04/2003 |
21/06/2005 |
01/10/2005 |
R. |
A. |
T. |
||||||||
|
Estonia |
23/11/2001 |
12/05/2003 |
01/07/2004 |
A. |
||||||||||
|
Finland |
23/11/2001 |
24/05/2007 |
01/09/2007 |
R. |
D. |
A. |
||||||||
|
France |
23/11/2001 |
10/01/2006 |
01/05/2006 |
R. |
D. |
A. |
||||||||
|
Georgia |
01/04/2008 |
06/06/2012 |
01/10/2012 |
D. |
||||||||||
|
Germany |
23/11/2001 |
09/03/2009 |
01/07/2009 |
R. |
D. |
A. |
||||||||
|
Greece |
23/11/2001 |
25/01/2017 |
01/05/2017 |
R. |
D. |
A. |
||||||||
|
Hungary |
23/11/2001 |
04/12/2003 |
01/07/2004 |
R. |
D. |
A. |
||||||||
|
Iceland |
30/11/2001 |
29/01/2007 |
01/05/2007 |
R. |
A. |
|||||||||
|
Ireland |
28/02/2002 |
|||||||||||||
|
Italy |
23/11/2001 |
05/06/2008 |
01/10/2008 |
A. |
||||||||||
|
Latvia |
05/05/2004 |
14/02/2007 |
01/06/2007 |
R. |
A. |
|||||||||
|
Liechtenstein |
17/11/2008 |
27/01/2016 |
01/05/2016 |
R. |
D. |
A. |
||||||||
|
Lithuania |
23/06/2003 |
18/03/2004 |
01/07/2004 |
R. |
D. |
A. |
||||||||
|
Luxembourg |
28/01/2003 |
16/10/2014 |
01/02/2015 |
A. |
||||||||||
|
Malta |
17/01/2002 |
12/04/2012 |
01/08/2012 |
D. |
||||||||||
|
Monaco |
02/05/2013 |
17/03/2017 |
01/07/2017 |
R. |
||||||||||
|
Montenegro |
07/04/2005 |
03/03/2010 |
01/07/2010 |
55 |
R. |
A. |
||||||||
|
Netherlands |
23/11/2001 |
16/11/2006 |
01/03/2007 |
A. |
T. |
|||||||||
|
Norway |
23/11/2001 |
30/06/2006 |
01/10/2006 |
R. |
D. |
A. |
||||||||
|
Poland |
23/11/2001 |
20/02/2015 |
01/06/2015 |
R. |
A. |
|||||||||
|
Portugal |
23/11/2001 |
24/03/2010 |
01/07/2010 |
D. |
A. |
|||||||||
|
Republic of Moldova |
23/11/2001 |
12/05/2009 |
01/09/2009 |
D. |
A. |
T. |
||||||||
|
Romania |
23/11/2001 |
12/05/2004 |
01/09/2004 |
A. |
||||||||||
|
Russian Federation |
||||||||||||||
|
San Marino |
17/03/2017 |
|||||||||||||
|
Serbia |
07/04/2005 |
14/04/2009 |
01/08/2009 |
55 |
A. |
|||||||||
|
Slovak Republic |
04/02/2005 |
08/01/2008 |
01/05/2008 |
R. |
D. |
A. |
||||||||
|
Slovenia |
24/07/2002 |
08/09/2004 |
01/01/2005 |
A. |
||||||||||
|
Spain |
23/11/2001 |
03/06/2010 |
01/10/2010 |
D. |
A. |
|||||||||
|
Sweden |
23/11/2001 |
|||||||||||||
|
Switzerland |
23/11/2001 |
21/09/2011 |
01/01/2012 |
R. |
D. |
A. |
||||||||
|
“The former Yugoslav Republic of Macedonia” |
23/11/2001 |
15/09/2004 |
01/01/2005 |
A. |
||||||||||
|
Turkey |
10/11/2010 |
29/09/2014 |
01/01/2015 |
|||||||||||
|
Ukraine |
23/11/2001 |
10/03/2006 |
01/07/2006 |
R. |
D. |
A. |
||||||||
|
United Kingdom |
23/11/2001 |
25/05/2011 |
01/09/2011 |
R. |
A. |
|||||||||
|
Non-Members of Council of Europe |
||||||||||||||
|
Signature |
Ratification |
Entry into Force |
Notes |
R. |
D. |
A. |
T. |
C. |
O. |
|||||
|
Argentina |
||||||||||||||
|
Australia |
30/11/2012 a |
01/03/2013 |
R. |
A. |
||||||||||
|
Canada |
23/11/2001 |
08/07/2015 |
01/11/2015 |
R. |
D. |
A. |
||||||||
|
Chile |
20/04/2017 a |
01/08/2017 |
R. |
D. |
A. |
|||||||||
|
Colombia |
4 |
|||||||||||||
|
Costa Rica |
||||||||||||||
|
Dominican Republic |
07/02/2013 a |
01/06/2013 |
D. |
A. |
||||||||||
|
Ghana |
4 |
|||||||||||||
|
Israel |
09/05/2016 a |
01/09/2016 |
R. |
A. |
||||||||||
|
Japan |
23/11/2001 |
03/07/2012 |
01/11/2012 |
R. |
D. |
A. |
||||||||
|
Mauritius |
15/11/2013 a |
01/03/2014 |
A. |
|||||||||||
|
Mexico |
||||||||||||||
|
Morocco |
||||||||||||||
|
Nigeria |
4 |
|||||||||||||
|
Panama |
05/03/2014 a |
01/07/2014 |
A. |
|||||||||||
|
Paraguay |
4 |
|||||||||||||
|
Peru |
4 |
|||||||||||||
|
Philippines |
||||||||||||||
|
Senegal |
16/12/2016 a |
01/04/2017 |
A. |
|||||||||||
|
South Africa |
23/11/2001 |
|||||||||||||
|
Sri Lanka |
29/05/2015 a |
01/09/2015 |
R. |
D. |
A. |
|||||||||
|
Tonga |
09/05/2017 a |
01/09/2017 |
A. |
|||||||||||
|
United States of America |
23/11/2001 |
29/09/2006 |
01/01/2007 |
R. |
D. |
A. |
||||||||
|
Total number of signatures not followed by ratifications |
4 |
|
Total number of ratifications/accessions |
55 |
Notes
(55) Date of signature by the state union of Serbia and Montenegro.
(4) Since 2013 the decision to invite a non-member State to accede to the treaty is valid five years as from its adoption. See the following Chart.
a: Accession s: Signature without reservation as to ratification su: Succession r: Signature "ad referendum".
R.: Reservations D.: Declarations, Denunciations, Derogations A.: Authorities T.: Territorial Application C.: Communication O.: Objection.
Source : Treaty Office on http://conventions.coe.int - * Disclaimer.
[1] This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.
[2] https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680303ec7
[3] Law no 8/IX/2017 on cybercrime was adopted by the National Assembly of Cabo Verde on 25 January 2017 and published in the Official Gazette on 20 March 2017.