RAPPORTEUR GROUP

Legal co-operation

GR-J(2020)15

19 August 2020[1]

Convention on Cybercrime (ETS No. 185) – Request by New Zealand to be invited to accede   Item to be considered by the GR-J at its meeting on 15 September 2020

 

 

1.         By a letter received and registered at the Secretariat General on 10 June 2020, Rt Hon. Winston Peters, Deputy Prime Minister and Minister of Foreign Affairs of New Zealand, expressed to the Secretary General of the Council of Europe the interest of the Government of New Zealand 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, the Secretariat proceeded to a consultation of member States of the Council of Europe and non-member States which are Contracting States to the Convention, requesting them to communicate to the Secretariat whether their authorities would object to the accession of New Zealand 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 17 August 2020. No objection was communicated to the Secretariat.

3.         An information note of the Secretariat of the Cybercrime Convention Committee (T-CY) on co-operation with New Zealand appears in Appendix 2.

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 3.

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 New Zealand to accede to the Convention on Cybercrime.

Appendix 1

Appendix 2

www.coe.int/cybercrime

Strasbourg, 12 June 2019

T-CY (2020)19 Restricted

Cybercrime Convention Committee (T-CY)

Cooperation with New Zealand

Note by the Secretariat

 

1          Introduction

The Government of New Zealand, by letter Deputy Prime Minister and Minister of Foreign Affairs Winston Peters, has submitted a request for accession to the Budapest Convention on Cybercrime (ETS 185).

The purpose of the present note is to provide supplementary information on the state of cooperation with New Zealand in cybercrime matters, including an overview of implementation of the principles of the Budapest Convention.

2          Cooperation with New Zealand

The authorities of New Zealand have been cooperating with the Council of Europe on cybercrime matters on multiple occasions. For example:

-                         In 2017, 2018 and 2019, representatives of New Zealand – in cooperation with the Council of Europe and the Government of Australia – facilitated meetings of the cybercrime working group of the Pacific Island Law Officers’ Network (PILON);

-                         In 2017, a Council of Europe mission held meetings with the authorities of New Zealand in Wellington to discuss accession to the Budapest Convention;

-                         In 2017, a member of the CERT NZ participated as a trainer on cooperation between law enforcement and computer emergency response teams in a Council of Europe capacity building activity in Tonga;

-                         In 2017, representatives of New Zealand participated as ad-hoc observers in a plenary of the Cybercrime Convention Committee;

-                         At the Octopus Conference 2019, experts from New Zealand shared their experience on cooperation in emergency situations.

Accession to the Budapest Convention is also referred to in “New Zealand’s Cyber Security Strategy 2019” adopted by the Government of New Zealand in 2019.

3          Cybercrime legislation

3.1       Substantive and procedural criminal law

Substantive criminal law provisions on cybercrime are currently covered primarily by articles 248 to 252 (“Crimes involving computers”) of the Crimes Act 1961 as amended in 2003 and 2011, which broadly correspond to Articles 2 (illegal access), 4 (data interference), 5 (system interference), 6 (misuse of devices) and 8 (fraud). Offences related to child pornography are covered by the Crimes Act and the Films, Videos, and Publications Classification Act. A range of measures have been taken by the authorities of New Zealand to address online child sexual violence beyond the requirements of Article 9 of the Budapest Convention.

Specific powers to investigate cybercrime and collect electronic evidence have been included in the Search and Surveillance Act 2012 which, among other things, provides for production orders, search and seizure, and interception powers. Powers for “physical” measures are also available for electronic measures by analogy.

The authorities of New Zealand are currently considering a number of legislative changes in view of accession to the Budapest Convention, including with regard to preservation orders, mutual assistance in criminal matters and elements of substantive criminal law.

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.”

New Zealand is Party to a number of international human rights treaties, including:

 

-                         International Covenant on Civil and Political Rights, 1966

-                         International Covenant on Economic, Social and Cultural Rights, 1966

-                         International Convention on the Elimination of All Forms of Racial Discrimination, 1965

-                         Convention on the Elimination of All Forms of Discrimination Against Women, 1979

-                         Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

-                         UN Convention on the Rights of the Child, 1989

New Zealand de facto abolished capital punishment in 1961 and formally in 1989.

Procedural powers are limited by rule of law safeguards. The Bill of Rights Act 1990 establishes, in section 25, a set of minimum rights that apply to criminal procedures, and the Criminal Procedure Act 2011 contains several sections that are linked to the fair trial principle.

New Zealand adopted a Privacy Act in 1993. A new Privacy Bill is currently before the Parliament the purpose if which is “to promote people’s confidence that their personal information is secure and will be treated properly.

4          Conclusion

The authorities of New Zealand have been cooperating with the Council of Europe in cybercrime matters for several years and have shown consistent interest in accession to the Budapest Convention.

Most of the substantive and procedural law provisions of the Budapest Convention seem to be available, and procedural powers are limited by the conditions and safeguards foreseen by Article 15 of this Convention.  Additional legislative changes in view of accession are under consideration.

5          Contact

In case of need for additional information please contact:

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 3 – Chart of signatures and ratifications of Convention CETS No.185

CHART OF SIGNATURES AND RATIFICATIONS OF TREATY 185

Convention on Cybercrime

Status as of 11/08/2020

Title	Convention on Cybercrime
Reference	ETS No.185
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 including at least 3 member States of the Council of Europe

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				A.
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.
North Macedonia	23/11/2001	15/09/2004	01/01/2005				A.
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	08/03/2019	01/07/2019				A.
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.
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		05/06/2018 a	01/10/2018		R.		A.
Australia		30/11/2012 a	01/03/2013		R.		A.
Benin				4
Brazil				4
Burkina Faso				4
Cabo Verde		19/06/2018 a	01/10/2018				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		16/03/2020	01/07/2020		R		A
Costa Rica		22/09/2017 a	01/01/2018			D.	A.
Dominican Republic		07/02/2013 a	01/06/2013			D.	A.
Ghana		03/12/2018 a	01/04/2019				A.
Guatemala				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		29/06/2018 a	01/10/2018				A
Niger				4
Nigeria				4
Panama		05/03/2014 a	01/07/2014				A.
Paraguay		30/07/2018 a	01/11/2018				A
Peru		26/08/2019 a	01/12/2019		R.	D.	A.
Philippines		28/03/2018 a	01/07/2018				A
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.
Tunisia				4
United States of America	23/11/2001	29/09/2006	01/01/2007		R.	D.	A.

Total number of signatures not followed by ratifications	3
Total number of ratifications/accessions	65

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.