|
RAPPORTEUR GROUP |
Legal co-operation |
GR-J(2024)2 |
15 January 2024[1] |
|
Convention on Cybercrime (ETS No. 185) Request by Mozambique to be invited to accede
Item to be considered by the GR-J at its meeting on 31 January 2024 |
1. By a letter No. 1746/GMNE/450/2023 dated 31 August 2023, received and registered at the Secretariat General on 14 November 2023, H.E. Ms Verónica Nataniel MACAMO DLHOVO, Minister of Foreign Affairs and Co-operation of the Republic of Mozambique, expressed to the Secretary General of the Council of Europe the interest of the Government of Mozambique 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 Mozambique 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 12 January 2024. 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 Mozambique 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, and by a Second Additional Protocol to the Convention on Cybercrime on enhanced co-operation and disclosure of electronic evidence (CETS No. 224) which was opened for signature on 12 May 2022. States having acceded to the Convention are entitled to accede to the Protocol (ETS No. 189) and to sign and ratify the Protocol CETS No. 224 without a specific invitation by the Committee of Ministers being necessary.
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 Mozambique to accede to the Convention on Cybercrime.
Appendix 1
COPY (*) Annex to letter JJ100/2023 dated 16 November 2023
______
(*) Letter registered at the Secretariat General on 14 November 2023 – Or. Port.
NON-OFFICIAL TRANSLATION (*) Annex to letter JJ100/2023 dated 16 November 2023
Republic of Mozambique
Ministry of Foreign Affairs and Cooperation
Office of the Minister
Reference n° 1746/GMNE/450/2023 Maputo, 31 August 2023
Subject: Manifestation of interest of the Republic of Mozambique in acceding to the Budapest Convention on Cybercrime
Your Excellency,
I have the honor to write to Your Excellency, on behalf of the Government of the Republic of Mozambique, to express the interest of the Republic in the accession to the Budapest Convention on Cybercrime (Cybercrime Offenses), of 23 November 2001, pursuant to Article 37 of the Convention.
The interest of the Republic of Mozambique in acceding to the Budapest Convention is based on its relevance in the international system for combating cybercrime, with emphasis on the following reasons:
· The need for the Republic of Mozambique to strengthen its capacity to combat cybercrime, through the consolidation of the information exchange network with international partners, in particular with member States of the Council of Europe and other States Parties to the Budapest Convention;
· The scope of the Budapest Convention at the level of the Member States of the European Union and its reference in the legislation in the area of cybersecurity of several States, including the Republic of Mozambique;
· The Budapest Convention constitutes one of the main references used in the elaboration of a future International Convention against the use of Information and Communication Technologies (ICT) for criminal purposes, now being prepared by the Ad Hoc Commission of the United Nations, in which the Republic of Mozambique has been participating;
· The Republic of Mozambique is committed to developing national legal instruments and technical mechanisms to combat cybercrime, and its accession to the Budapest Convention will allow it to participate as an Observer on the Convention Committee on Cybercrime, thus improving its technical and operational capacity in combating cybercrime.
Considering the current efforts and the urgent need for the Republic of Mozambique to strengthen the defense of its cyberspace, and recognising that this effort will never succeed without collaboration with other States, we look forward to receiving your positive response, which would be followed by the approval of the internal legal formalities necessary for the submission of the application for accession to the Budapest Convention.
Please accept, Your Excellency, the assurances of my highest consideration and esteem.
(signature)
Verónica Nataniel Macamo Dlhovo
Minister of Foreign Affairs and Cooperation
______
(*) Letter registered at the Secretariat General on 14 November 2023 – Or. Port.
Appendix 2
|
www.coe.int/cybercrime |
|
|
Strasbourg, 11 September 2023 |
T-CY (2023)11 Restricted |
Cybercrime Convention Committee (T-CY)
Co-operation with Mozambique
Note by the Secretariat
Contents
2 Co-operation with Mozambique
3.1 Substantive and procedural law
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] |
1 Introduction
The Government of Mozambique, by letter of the Minister of Foreign Affairs, H.E. Verónica Nataniel Macamo Dlhovo, dated 31 August 2023, 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 co-operation with Mozambique in cybercrime matters, including an overview of implementation of the principles of the Convention on Cybercrime.
2 Co-operation with Mozambique
The authorities of Mozambique have been co-operating with the Council of Europe on cybercrime since 2017 in a number of activities. Current co-operation includes, in particular, support to the reform of domestic legislation on cybercrime and electronic evidence.
|
Date |
Place |
Title |
|
10 – 12 July 2017 |
Port Louis, Mauritius |
East Africa Regional Conference on Cybercrime and Electronic Evidence organised with GPEN |
|
5 – 7 February 2018 |
Lisbon, Portugal |
Forum on Cybercrime |
|
16 – 18 October 2018 |
Addis-Ababa, Ethiopia |
African Forum on Cybercrime – Policies and legislation, International Co-operation and Capacity building |
|
11-12 April 2019 |
Praia, Cabo Verde, |
International Conference Fight against Cybercrime – the Public Prosecution Services of the CPLP in the Global Context - and 2nd Meeting of the Cybercrime Forum |
|
19 – 20 November 2019 |
Santa Maria, Sal Island, Cabo Verde |
International Conference Cybercrime and Electronic Evidence: Harmonization of Legislation and the Budapest Convention in the Community of Portuguese-Speaking Countries (CPLP) |
|
20 – 22 November 2019 |
Strasbourg, France |
Octopus Conference 2019 |
|
27 April 2020 |
Online |
Webinar on Global State of Cybercrime Legislation |
|
12 June 2020 |
Online |
Cybercrime and terrorism: The criminal justice response Co-organised by the UNCCT and COE |
|
9 November 2020 |
Online |
Effective Access to Electronic Evidence: towards a new Protocol to the Budapest Convention, co-organised by the International Association of Prosecutors – IAP and COE |
|
18-20 November 2020 |
Online |
International Conference on Cybercrime for the CPLP countries and online meeting of the Ministers of Justice of the CPLP countries |
|
24-26 November 2020 |
Online |
Advisory on cybercrime legislation and introductory training on cybercrime and electronic evidence for prosecutors |
|
13 May 2021 |
Online |
Second Additional Protocol: First Webinar on Enhanced Co-operation and Disclosure of Electronic Evidence, in co-operation with IAP |
|
28-30 June 2021 |
Online |
Second African Forum on Cybercrime |
|
20-22 July 2021 |
Online |
Streamlining parallel financial investigation in cybercrime cases. Trends and challenges (in co-operation with PACED Project) |
|
17-18 November 2021 |
Online |
Octopus Conference 2021 |
|
10-11 November 2022 |
San Jose, Costa Rica |
International Conference on promoting the role of women in preventing, investigating, and prosecuting cybercrime |
|
6-7 March 2023 |
Bouznika, Morocco |
International Conference on Strengthening Co-operation on Cybercrime and E-evidence in Africa |
|
23-25 May 2023 |
Brasilia, Brazil |
Forum de Cibercrime & International Conference on Budapest Convention and Second Additional Protocol |
|
Date |
Place |
Title |
|
July 2023 |
Desk study |
Report on the legal framework on cybercrime and electronic evidence in Mozambique |
|
4 September 2023 |
Online |
Debriefing call on the conclusions of the desk study (restricted meeting with the national task force working on the legislative reform) |
|
20-22 September 2023 |
Maputo, Mozambique |
Workshop on cybercrime and electronic evidence legislation (part of the wider support on legislative reform) |
|
25-29 September 2023 |
Port Louis, Mauritius |
Regional case simulation exercise |
3 Cybercrime legislation
3.1 Substantive and procedural law
In November and December 2019, the following laws were published in the Official Gazette:
§ Law no. 24/2019 on the new Penal Code (entry into force 24 December 2020);
§ Law no. 25/2019 on the new Code of Criminal Procedure (entry into force 26 December 2020);
§ Law no. 21/2019 of the Law on International Legal and Judicial Co-operation in Criminal Matters.
With the new Penal Code, Mozambique broadly meets the requirements of the Budapest Convention in terms of substantive criminal law.
The new Code of Criminal Procedure includes general provisions on production orders, search and seizure and other powers, but these are not specific to cybercrime and electronic evidence.
The Law on International Co-operation in Criminal Matters sets out general principles on extradition, mutual assistance and other measures, but does not provide for the specific measures of the Budapest Convention.
In early 2023, the Government of Mozambique established a task force to work on legislative amendments in co-operation with the Council of Europe (under the GLACY+ project). By mid-2023, a legislative analysis was completed and a workshop with national stakeholders, in particular on specific amendments of the Code of Criminal Procedure and on the Law on International Co-operation in Criminal Matters took place on 20-22 September 2023. By the end of the workshop, a draft law and a road map of the legislative reform were prepared. Currently the draft law is under consultations with the national key stakeholders. A second online workshop is expected to take place early 2024, in further support of the national process. As stated in the letter requesting accession, the Government is committed to these reforms in order to meet the requirements of the Budapest Convention.
|
Provisions of Budapest Convention |
Domestic legislation |
|
Substantive law |
|
|
Illegal access (Art. 2) |
Article 256 Criminal Code |
|
Illegal interception (Art. 3) |
Article 253 Criminal Code and Article 57 Telecommunication Act |
|
Data interference (Art. 4) |
Article 337 Criminal Code |
|
System interference (Art. 5) |
Article 338 Criminal Code |
|
Misuse of devices (Art. 6) |
Articles 256, 336 and 339 Criminal Code |
|
Forgery (Art. 7) |
Article 336 Criminal Code |
|
Fraud (Art. 8) |
Article 289 Criminal Code |
|
Child pornography (Art. 9) |
Articles 211, 212 and 213 Criminal Code |
|
Copyright and related rights (Art. 10) |
Law No. 4/2001 on Copyright |
|
Attempt, aiding and abetting (Art. 11) |
Articles 17, 18, 19, 23, 24, 25 and 26 Criminal Code |
|
Corporate liability (Art. 12) |
Article 30 Criminal Code |
|
Procedural law |
|
|
Expedited preservation (Art. 16) |
|
|
Expedited preserv. & partial disclosure (Art. 17) |
|
Provisions of Budapest Convention |
Domestic legislation |
|
Production order (Art. 18) |
Articles 12 and 21 of Law no. 2/2017 on the National Criminal Investigation Service and Article 7 of Law no. 4/2017 Organic Law of the Public Prosecution Service |
|
Search and seizure (Art. 19) |
Articles 209, 211, 213 Code of Criminal Procedure |
|
Real-time collection of traffic data (Art. 20) |
Articles 222 and 225 Code of Criminal Procedure |
|
Interception of content data (Art. 21) |
Articles 222 and 225 Code of Criminal Procedure |
|
International co-operation |
|
|
Chapter III |
Law no. 21/2019 on International Judicial Co-operation in Criminal Matters |
3.2 Safeguards
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.”
Mozambique is Party to twelve human rights treaties, including the International Covenant on Civil and Political Rights, Convention on the Rights of the Child, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment or the African Charter on Human Rights and People’s Rights.
The normative framework of the Constitution of the Republic of Mozambique and the Code of Criminal Procedure seems to meet the requirements of Article 15 of the Budapest Convention. Article 59 of the Constitution enshrines the right to liberty and security, guaranteeing in paragraph 1 that no one may be arrested or tried except in accordance with the law. In addition, paragraph 2 of the same article enshrines the right to the presumption of innocence. Paragraph 3 also enshrines the principles of ne bis in idem and nula poena sine lege. The latter rule is reinforced by Article 60(1), which also enshrines the principle of non-retroactivity of criminal law. In addition to these, the Constitution also provides for various guarantees in the field of criminal procedure (Article 65). These fundamental rights are confirmed in Articles 3 to 8 of the Code of Criminal Procedure. Coercive powers of investigation require judicial authorisation.
Mozambique abolished capital punishment in 1990 and is Party to the Second Optional Protocol to the International Covenant on Civil and Political Rights.
4 Conclusion
The authorities of Mozambique have been co-operating with the Council of Europe in cybercrime matters in a number of activities since 2017, and co-operation intensified in 2023 in view of further reforms of the domestic legal framework and of increasing interest in the Budapest Convention on Cybercrime. While the substantive law is already broadly in line with this Convention, the authorities of Mozambique have expressed their commitment – also in the letter requesting accession – to further reforms of legislation that would permit them to accede. In this sense, an invitation to accede would add impetus to these reforms.
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 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 18/12/2023
|
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. |
|
|
23/11/2001 |
20/06/2002 |
01/07/2004 |
||||||||
|
23/04/2013 |
16/11/2016 |
01/03/2017 |
||||||||
|
23/11/2001 |
12/10/2006 |
01/02/2007 |
||||||||
|
23/11/2001 |
13/06/2012 |
01/10/2012 |
||||||||
|
30/06/2008 |
15/03/2010 |
01/07/2010 |
||||||||
|
23/11/2001 |
20/08/2012 |
01/12/2012 |
||||||||
|
09/02/2005 |
19/05/2006 |
01/09/2006 |
||||||||
|
23/11/2001 |
07/04/2005 |
01/08/2005 |
||||||||
|
23/11/2001 |
17/10/2002 |
01/07/2004 |
||||||||
|
23/11/2001 |
19/01/2005 |
01/05/2005 |
||||||||
|
09/02/2005 |
22/08/2013 |
01/12/2013 |
||||||||
|
22/04/2003 |
21/06/2005 |
01/10/2005 |
||||||||
|
23/11/2001 |
12/05/2003 |
01/07/2004 |
||||||||
|
23/11/2001 |
24/05/2007 |
01/09/2007 |
||||||||
|
23/11/2001 |
10/01/2006 |
01/05/2006 |
||||||||
|
01/04/2008 |
06/06/2012 |
01/10/2012 |
||||||||
|
23/11/2001 |
09/03/2009 |
01/07/2009 |
||||||||
|
23/11/2001 |
25/01/2017 |
01/05/2017 |
||||||||
|
23/11/2001 |
04/12/2003 |
01/07/2004 |
||||||||
|
30/11/2001 |
29/01/2007 |
01/05/2007 |
||||||||
|
28/02/2002 |
||||||||||
|
23/11/2001 |
05/06/2008 |
01/10/2008 |
||||||||
|
05/05/2004 |
14/02/2007 |
01/06/2007 |
||||||||
|
17/11/2008 |
27/01/2016 |
01/05/2016 |
||||||||
|
23/06/2003 |
18/03/2004 |
01/07/2004 |
||||||||
|
28/01/2003 |
16/10/2014 |
01/02/2015 |
||||||||
|
17/01/2002 |
12/04/2012 |
01/08/2012 |
||||||||
|
02/05/2013 |
17/03/2017 |
01/07/2017 |
||||||||
|
07/04/2005 |
03/03/2010 |
01/07/2010 |
55 |
|||||||
|
23/11/2001 |
16/11/2006 |
01/03/2007 |
||||||||
|
23/11/2001 |
15/09/2004 |
01/01/2005 |
||||||||
|
23/11/2001 |
30/06/2006 |
01/10/2006 |
||||||||
|
23/11/2001 |
20/02/2015 |
01/06/2015 |
||||||||
|
23/11/2001 |
24/03/2010 |
01/07/2010 |
||||||||
|
23/11/2001 |
12/05/2009 |
01/09/2009 |
||||||||
|
23/11/2001 |
12/05/2004 |
01/09/2004 |
||||||||
|
17/03/2017 |
08/03/2019 |
01/07/2019 |
A. |
|||||||
|
07/04/2005 |
14/04/2009 |
01/08/2009 |
55 |
|||||||
|
04/02/2005 |
08/01/2008 |
01/05/2008 |
||||||||
|
24/07/2002 |
08/09/2004 |
01/01/2005 |
||||||||
|
23/11/2001 |
03/06/2010 |
01/10/2010 |
||||||||
|
23/11/2001 |
28/04/2021 |
01/08/2021 |
R. |
A. |
||||||
|
23/11/2001 |
21/09/2011 |
01/01/2012 |
||||||||
|
10/11/2010 |
29/09/2014 |
01/01/2015 |
||||||||
|
23/11/2001 |
10/03/2006 |
01/07/2006 |
||||||||
|
23/11/2001 |
25/05/2011 |
01/09/2011 |
Non-Members of Council of Europe
|
Signature |
Ratification |
Entry into Force |
Notes |
R. |
D. |
A. |
T. |
C. |
O. |
|
|
05/06/2018 a |
01/10/2018 |
R. |
A. |
|||||||
|
30/11/2012 a |
01/03/2013 |
|||||||||
|
Benin |
a |
4 |
||||||||
|
Brazil |
30/11/2022 a |
01/03/2023 |
D. |
A. |
||||||
|
Burkina Faso |
a |
4 |
||||||||
|
19/06/2018 a |
01/10/2018 |
A. |
||||||||
|
Cameroon |
15/12/2023 |
01/04/2024 |
A. |
|||||||
|
23/11/2001 |
08/07/2015 |
01/11/2015 |
||||||||
|
20/04/2017 a |
01/08/2017 |
|||||||||
|
16/03/2020 a |
01/07/2020 |
R |
A |
|||||||
|
22/09/2017 a |
01/01/2018 |
|||||||||
|
Côte d’Ivoire |
a |
4 |
||||||||
|
07/02/2013 a |
01/06/2013 |
|||||||||
|
Ecuador |
a |
4 |
||||||||
|
Fiji |
a |
4 |
||||||||
|
03/12/2018 a |
01/04/2019 |
A. |
||||||||
|
Guatemala |
a |
4 |
||||||||
|
09/05/2016 a |
01/09/2016 |
|||||||||
|
23/11/2001 |
03/07/2012 |
01/11/2012 |
||||||||
|
Kazakhstan |
a |
4 |
||||||||
|
Kiribati |
a |
4 |
||||||||
|
15/11/2013 a |
01/03/2014 |
|||||||||
|
a |
||||||||||
|
29/06/2018 a |
01/10/2018 |
A |
||||||||
|
New Zealand |
4 |
|||||||||
|
Niger |
a |
4 |
||||||||
|
06/07/2022 a |
01/11/2022 |
R. |
A. |
|||||||
|
05/03/2014 a |
01/07/2014 |
|||||||||
|
30/07/2018 a |
01/11/2018 |
A |
||||||||
|
26/08/2019 a |
01/12/2019 |
R. |
D. |
A. |
||||||
|
28/03/2018 a |
01/07/2018 |
A |
||||||||
|
Republic of Korea |
a |
4 |
||||||||
|
Rwanda |
a |
4 |
||||||||
|
São Tomé and Príncipe |
a |
4 |
||||||||
|
16/12/2016 a |
01/04/2017 |
|||||||||
|
Sierra Leone |
a |
4 |
||||||||
|
23/11/2001 |
||||||||||
|
29/05/2015 a |
01/09/2015 |
|||||||||
|
Timor-Leste |
a |
4 |
||||||||
|
09/05/2017 a |
01/09/2017 |
|||||||||
|
Trinidad and Tobago |
a |
4 |
||||||||
|
Tunisia |
a |
4 |
||||||||
|
23/11/2001 |
29/09/2006 |
01/01/2007 |
||||||||
|
Uruguay |
a |
4 |
||||||||
|
Vanuatu |
a |
4 |
|
Total number of signatures not followed by ratifications |
2 |
|
Total number of ratifications/accessions |
69 |
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 chart on https://rm.coe.int/16806cac22.
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 https://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.