prop · H80372 · 2020-12-18 00:00:00 — If the receiving Party cannot comply with such request, it shall notify the providing Party, which shall then determine whether the information should nevertheless be provided. If the receiving Party accepts the information subject to the conditions, it shall be bound by them. Title 4 – Procedures pertaining to mutual assistance requests in the absence of applicable international agreements Article 27 – Procedures pertaining to mutual assistance requests in the absence of applicable international agreements 1Where there is no mutual assistance treaty or arrangement on the basis of uniform or reciprocal legislation in force between the requesting and requested Parties, the provisions of paragraphs 2 through 9 of this article shall apply. The provisions of this article shall not apply where such treaty, arrangement or legislation exists, unless the Parties concerned agree to apply any or all of the remainder of this article in lieu thereof. 2a Each Party shall designate a central authority or authorities responsible for sending and answering requests for mutual assistance, the execution of such requests or their transmission to the authorities competent for their execution. bThe central authorities shall communicate directly with each other; cEach Party shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, communicate to the Secretary General of the names and addresses of the authorities designated in pursuance of this paragraph; dThe Secretary General of shall set up and keep updated a register of central authorities designated by the Parties. Each Party shall ensure that the details held on the register are correct at all times. 3Mutual assistance requests under this article shall be executed in accordance with the procedures specified by the requesting Party, except where incompatible with the law of the requested Party. 4The requested Party may, in addition to the grounds for refusal established in Article 25, paragraph 4, refuse assistance if: a the request concerns an offence which the requested Party considers a political offence or an offence connected with a political offence, or b it considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests. 5The requested Party may postpone action on a request if such action would prejudice criminal investigations or proceedings conducted by its authorities. ETS 185 – Cybercrime (Convention), 23.XI.2001 6Before refusing or postponing assistance, the requested Party shall, where appropriate after having consulted with the requesting Party, consider whether the request may be granted partially or subject to such conditions as it deems necessary. 7The requested Party shall promptly inform the requesting Party of the outcome of the execution of a request for assistance. Reasons shall be given for any refusal or postponement of the request. The requested Party shall also inform the requesting Party of any reasons that render impossible the execution of the request or are likely to delay it significantly. 8The requesting Party may request that the requested Party keep confidential the fact of any request made under this chapter as well as its subject, except to the extent necessary for its execution. If the requested Party cannot comply with the request for confidentiality, it shall promptly inform the requesting Party, which shall then determine whether the request should nevertheless be executed. 9a In the event of urgency, requests for mutual assistance or communications related thereto may be sent directly by judicial authorities of the requesting Party to such authorities of the requested Party. In any such cases, a copy shall be sent at the same time to the central authority of the requested Party through the central authority of the requesting Party. bAny request or communication under this paragraph may be made through the (). cWhere a request is made pursuant to sub-paragraph a. of this article and the authority is not competent to deal with the request, it shall refer the request to the competent national authority and inform directly the requesting Party that it has done so. dRequests or communications made under this paragraph that do not involve coercive action may be directly transmitted by the competent authorities of the requesting Party to the competent authorities of the requested Party. eEach Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, inform the Secretary General of that, for reasons of efficiency, requests made under this paragraph are to be addressed to its central authority. Article 28 – Confidentiality and limitation on use 1When there is no mutual assistance treaty or arrangement on the basis of uniform or reciprocal legislation in force between the requesting and the requested Parties, the provisions of this article shall apply. The provisions of this article shall not apply where such treaty, arrangement or legislation exists, unless the Parties concerned agree to apply any or all of the remainder of this article in lieu thereof. 2The requested Party may make the supply of information or material in response to a request dependent on the condition that it is: a kept confidential where the request for mutual legal assistance could not be complied with in the absence of such condition, or bnot used for investigations or proceedings other than those stated in the request. 3If the requesting Party cannot comply with a condition referred to in paragraph 2, it shall promptly inform the other Party, which shall then determine whether the information should nevertheless be provided. When the requesting Party accepts the condition, it shall be bound by it. ETS 185 – Cybercrime (Convention), 23.XI.2001 4Any Party that supplies information or material subject to a condition referred to in paragraph 2 may require the other Party to explain, in relation to that condition, the use made of such information or material. Section 2 – Specific provisions Title 1 – Mutual assistance regarding provisional measures Article 29 – Expedited preservation of stored computer data 1A Party may request another Party to order or otherwise obtain the expeditious preservation of data stored by means of a computer system, located within the territory of that other Party and in respect of which the requesting Party intends to submit a request for mutual assistance for the search or similar access, seizure or similar securing, or disclosure of the data. 2A request for preservation made under paragraph 1 shall specify: a the authority seeking the preservation; b the offence that is the subject of a criminal investigation or proceedings and a brief summary of the related facts; c the stored computer data to be preserved and its relationship to the offence; d any available information identifying the custodian of the stored computer data or the location of the computer system; e the necessity of the preservation; and f that the Party intends to submit a request for mutual assistance for the search or similar access, seizure or similar securing, or disclosure of the stored computer data. 3Upon receiving the request from another Party, the requested Party shall take all appropriate measures to preserve expeditiously the specified data in accordance with its domestic law. For the purposes of responding to a request, dual criminality shall not be required as a condition to providing such preservation. 4A Party that requires dual criminality as a condition for responding to a request for mutual assistance for the search or similar access, seizure or similar securing, or disclosure of stored data may, in respect of offences other than those established in accordance with Articles 2 through 11 of this Convention, reserve the right to refuse the request for preservation under this article in cases where it has reasons to believe that at the time of disclosure the condition of dual criminality cannot be fulfilled. 5In addition, a request for preservation may only be refused if: a the request concerns an offence which the requested Party considers a political offence or an offence connected with a political offence, or b the requested Party considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests. 6Where the requested Party believes that preservation will not ensure the future availability of the data or will threaten the confidentiality of or otherwise prejudice the requesting Party’s investigation, it shall promptly so inform the requesting Party, which shall then determine whether the request should nevertheless be executed. ETS 185 – Cybercrime (Convention), 23.XI.2001 7Any preservation effected in response to the request referred to in paragraph 1 shall be for a period not less than sixty days, in order to enable the requesting Party to submit a request for the search or similar access, seizure or similar securing, or disclosure of the data. Following the receipt of such a request, the data shall continue to be preserved pending a decision on that request. Article 30 – Expedited disclosure of preserved traffic data 1Where, in the course of the execution of a request made pursuant to Article 29 to preserve traffic data concerning a specific communication, the requested Party discovers that a service provider in another State was involved in the transmission of the communication, the requested Party shall expeditiously disclose to the requesting Party a sufficient amount of traffic data to identify that service provider and the path through which the communication was transmitted. 2Disclosure of traffic data under paragraph 1 may only be withheld if: a the request concerns an offence which the requested Party considers a political offence or an offence connected with a political offence; or b the requested Party considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests. Title 2 – Mutual assistance regarding investigative powers Article 31 – Mutual assistance regarding accessing of stored computer data 1A Party may request another Party to search or similarly access, seize or similarly secure, and disclose data stored by means of a computer system located within the territory of the requested Party, including data that has been preserved pursuant to Article 29. 2The requested Party shall respond to the request through the application of international instruments, arrangements and laws referred to in Article 23, and in accordance with other relevant provisions of this chapter. 3The request shall be responded to on an expedited basis where: a there are grounds to believe that relevant data is particularly vulnerable to loss or modification; or b the instruments, arrangements and laws referred to in paragraph 2 otherwise provide for expedited co-operation. Article 32 – Trans!border access to stored computer data with consent or where publicly available A Party may, without the authorisation of another Party: a access publicly available (open source) stored computer data, regardless of where the data is located geographically; or b access or receive, through a computer system in its territory, stored computer data located in another Party, if the Party obtains the lawful and voluntary consent of the person who has the lawful authority to disclose the data to the Party through that computer system. ETS 185 – Cybercrime (Convention), 23.XI.2001 Article 33 – Mutual assistance regarding the real!time collection of traffic data 1The Parties shall provide mutual assistance to each other in the real-time collection of traffic data associated with specified communications in their territory transmitted by means of a computer system. Subject to the provisions of paragraph 2, this assistance shall be governed by the conditions and procedures provided for under domestic law. 2Each Party shall provide such assistance at least with respect to criminal offences for which real-time collection of traffic data would be available in a similar domestic case. Article 34 – Mutual assistance regarding the interception of content data The Parties shall provide mutual assistance to each other in the real-time collection or recording of content data of specified communications transmitted by means of a computer system to the extent permitted under their applicable treaties and domestic laws. Title 3 – 24/7 Network Article 35 – 24/7 Network 1Each Party shall designate a point of contact available on a twenty-four hour, seven-day-a- week basis, in order to ensure the provision of immediate assistance for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence. Such assistance shall include facilitating, or, if permitted by its domestic law and practice, directly carrying out the following measures: a the provision of technical advice; b the preservation of data pursuant to Articles 29 and 30; cthe collection of evidence, the provision of legal information, and locating of suspects. 2a A Party’s point of contact shall have the capacity to carry out communications with the point of contact of another Party on an expedited basis. bIf the point of contact designated by a Party is not part of that Party’s authority or authorities responsible for international mutual assistance or extradition, the point of contact shall ensure that it is able to co-ordinate with such authority or authorities on an expedited basis. 3Each Party shall ensure that trained and equipped personnel are available, in order to facilitate the operation of the network. Chapter IV – Final provisions Article 36 – Signature and entry into force 1This Convention shall be open for signature by the member States of non-member States which have participated in its elaboration. 2This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of . ETS 185 – Cybercrime (Convention), 23.XI.2001 3This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five States, including at least three member States of , have expressed their consent to be bound by the Convention in accordance with the provisions of paragraphs 1 and 2. 4In respect of any signatory State which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Convention in accordance with the provisions of paragraphs 1 and 2. Article 37 – Accession to the Convention 1After the entry into force of this Convention, , 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 unanimous vote of the representatives of the Contracting States entitled to sit on . 2In respect of any State acceding to the Convention under paragraph 1 above, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of . Article 38 – Territorial application 1Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply. 2Any State may, at any later date, by a declaration addressed to the Secretary General of , extend the application of this Convention to any other territory specified in the declaration. In respect of such territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary General. 3Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General of . The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General. Article 39 – Effects of the Convention 1The purpose of the present Convention is to supplement applicable multilateral or bilateral treaties or arrangements as between the Parties, including the provisions of: –Convention on Extradition, opened for signature in , on (ETS No. –Convention on Mutual Assistance in Criminal Matters, opened for signature in , on (ETS No. –the Additional Protocol to Convention on Mutual Assistance in Criminal Matters, opened for signature in , on 17 1978 (ETS No. ETS 185 – Cybercrime (Convention), 23.XI.2001 2If two or more Parties have already concluded an agreement or treaty on the matters dealt with in this Convention or have otherwise established their relations on such matters, or should they in future do so, they shall also be entitled to apply that agreement or treaty or to regulate those relations accordingly. However, where Parties establish their relations in respect of the matters dealt with in the present Convention other than as regulated therein, they shall do so in a that is not inconsistent with the Convention’s objectives and principles. 3Nothing in this Convention shall affect other rights, restrictions, obligations and responsibilities of a Party. Article 40 – Declarations By a written notification addressed to the Secretary General of , any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, declare that it avails itself of the possibility of requiring additional elements as provided for under Articles 2, 3, 6 paragraph 1.b, 7, 9 paragraph 3, and 27, paragraph 9.e. Article 41 – Federal 1A federal State may reserve the right to assume obligations under Chapter II of this Convention consistent with its fundamental principles governing the relationship between its central government and constituent States or other similar territorial entities provided that it is still able to co-operate under Chapter III. 2When making a reservation under paragraph 1, a federal State may not apply the terms of such reservation to exclude or substantially diminish its obligations to provide for measures set forth in Chapter II. Overall, it shall provide for a broad and effective law enforcement capability with respect to those measures. 3With regard to the provisions of this Convention, the application of which comes under the jurisdiction of constituent States or other similar territorial entities, that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States of the said provisions with its favourable opinion, encouraging them to take appropriate action to give them effect. Article 42 – Reservations By a written notification addressed to the Secretary General of , any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, declare that it avails itself of the reservation(s) provided for in Article 4, paragraph 2, Article 6, paragraph 3, Article 9, paragraph 4, Article 10, paragraph 3, Article 11, paragraph 3, Article 14, paragraph 3, Article 22, paragraph 2, Article 29, paragraph 4, and Article 41, paragraph 1. No other reservation may be made. Article 43 – Status and withdrawal of reservations 1A Party that has made a reservation in accordance with Article 42 may or partially withdraw it by means of a notification addressed to the Secretary General of . Such withdrawal shall take effect on the date of receipt of such notification by the Secretary General. If the notification states that the withdrawal of a reservation is to take effect on a date specified therein, and such date is later than the date on which the notification is received by the Secretary General, the withdrawal shall take effect on such a later date. 2A Party that has made a reservation as referred to in Article 42 shall withdraw such reservation, in whole or in part, as soon as circumstances so permit. ETS 185 – Cybercrime (Convention), 23.XI.2001 3The Secretary General of may periodically enquire with Parties that have made one or more reservations as referred to in Article 42 as to the for withdrawing such reservation(s). Article 44 – Amendments 1Amendments to this Convention may be proposed by any Party, and shall be communicated by the Secretary General of to the member States of , to the non-member States which have participated in the elaboration of this Convention as well as to any State which has acceded to, or has been invited to accede to, this Convention in accordance with the provisions of Article 37. 2Any amendment proposed by a Party shall be communicated to (), which shall submit to its opinion on that proposed amendment. 3The shall consider the proposed amendment and the opinion submitted by the CDPC and, following consultation with the non-member States Parties to this Convention, may adopt the amendment. 4The text of any amendment adopted by in accordance with paragraph 3 of this article shall be forwarded to the Parties for acceptance. 5Any amendment adopted in accordance with paragraph 3 of this article shall come into force on the thirtieth day after all Parties have informed the Secretary General of their acceptance thereof. Article 45 – Settlement of disputes 1The () shall be kept informed regarding the interpretation and application of this Convention. 2In case of a dispute between Parties as to the interpretation or application of this Convention, they shall seek a settlement of the dispute through negotiation or any other peaceful means of their choice, including submission of the dispute to the CDPC, to an arbitral tribunal whose decisions shall be binding upon the Parties, or to the International Court of , as agreed upon by the Parties concerned. Article 46 – Consultations of the Parties 1The Parties shall, as appropriate, consult periodically with a view to facilitating: a the effective use and implementation of this Convention, including the identification of any problems thereof, as well as the effects of any declaration or reservation made under this Convention; b the exchange of information on significant legal, policy or technological developments pertaining to cybercrime and the collection of evidence in electronic form; cconsideration of possible supplementation or amendment of the Convention. 2The () shall be kept periodically informed regarding the result of consultations referred to in paragraph 1. ETS 185 – Cybercrime (Convention), 23.XI.2001 3The CDPC shall, as appropriate, facilitate the consultations referred to in paragraph 1 and take the measures necessary to assist the Parties in their efforts to supplement or amend the Convention. At the latest three years after the present Convention enters into force, () shall, in co-operation with the Parties, conduct a review of all of the Convention’s provisions and, if necessary, recommend any appropriate amendments. 4Except where assumed by , expenses incurred in carrying out the provisions of paragraph 1 shall be borne by the Parties in the to be determined by them.