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The strange consensus on Obama's Nobel address

Why did so many liberals and conservatives both find so much to cheer in the president's foreign policy speech?

Glenn Greenwald - Dec. 11, 2009 - Includes two updates
Salon.com Sourcelink

Reactions to Obama's Nobel speech yesterday were remarkably consistent across the political spectrum, and there were two points on which virtually everyone seemed to agree: (1) it was the most explicitly pro-war speech ever delivered by anyone while accepting the Nobel Peace Prize; and (2) it was the most comprehensive expression of Obama's foreign policy principles since he became President. I don't think he can be blamed for the first fact; when the Nobel Committee chose him despite his waging two wars and escalating one, it essentially forced on him the bizarre circumstance of using his acceptance speech to defend the wars he's fighting. What else could he do? Ignore the wars? Repent?

I'm more interested in the fact that the set of principles Obama articulated yesterday was such a clear and comprehensive expression of his foreign policy that it's now being referred to as the "Obama Doctrine." About that matter, there are two arguably confounding facts to note: (1) the vast majority of leading conservatives -- from Karl Rove and Newt Gingrich to Peggy Noonan, Sarah Palin, various Kagans and other assorted neocons -- have heaped enthusiastic praise on what Obama said yesterday, i.e., on the Obama Doctrine; and (2) numerous liberals have done exactly the same. That convergence gives rise to a couple of questions:

Why are the Bush-following conservatives who ran the country for the last eight years and whose foreign policy ideas are supposedly so discredited -- including some of the nation's hardest-core neocons -- finding so much to cheer in the so-called Obama Doctrine?

How could liberals and conservatives -- who have long claimed to possess such vehemently divergent and irreconcilable worldviews on foreign policy -- both simultaneously adore the same comprehensive expression of foreign policy?

Let's dispense first with several legitimate caveats. Like all good politicians, Obama is adept at paying homage to multiple, inconsistent views at once, enabling everyone to hear whatever they want in what he says while blissfully ignoring the rest. Additionally, conservatives have an interest in claiming that Obama has embraced Bush/Cheney policies even when he hasn't, because it allows them to claim vindication ("see, now that Obama gets secret briefings, he realizes we were right all along"). Moreover, there are foreign policies Obama has pursued that are genuinely disliked by neocons -- from negotiating with Iran to applying some mild pressure on Israel to the use of more conciliatory and humble rhetoric. And one of the most radical and controversial aspects of the Bush presidency -- the attack on Iraq -- was not defended by Obama, nor was the underlying principle that produced it ("preventive" war).

But all that said, it's easy to understand why even intellectually honest conservatives -- including neocons -- found so much to like in "the Obama Doctrine," at least as it found expression yesterday. With the one caveat that Obama omitted a defense of the Iraq War, the generally Obama-supportive Kevin Drum put it this way:

I really don't think neocons have much to complain about even if Obama didn't use the opportunity to announce construction of a new generation of nuclear missiles or something. Given that he was, after all, accepting a peace prize, it was a surprisingly robust defense of war and America's military role in the world. Surprisingly Bushian, really . . .

Indeed, Obama insisted upon what he called the "right" to wage wars "unilaterally"; articulated a wide array of circumstances in which war is supposedly "just" far beyond being attacked or facing imminent attack by another country; explicitly rejected the non-violence espoused by King and Gandhi as too narrow and insufficiently pragmatic for a Commander-in-Chief like Obama to embrace; endowed us with the mission to use war as a means of combating "evil"; and hailed the U.S. for underwriting global security for the last six decades (without mentioning how our heroic efforts affected, say, the people of Vietnam, or Iraq, or Central America, or Gaza, and so many other places where "security" is not exactly what our wars "underwrote"). So it's not difficult to see why Rovian conservatives are embracing his speech; so much of it was devoted to an affirmation of their core beliefs.

The more difficult question to answer is why -- given what Drum described -- so many liberals found the speech so inspiring and agreeable? Is that what liberals were hoping for when they elected Obama: someone who would march right into Oslo and proudly announce to the world that we have a unilateral right to wage war when we want and to sing the virtues of war as a key instrument for peace? As Tom Friedman put it on CNN yesterday: "He got into their faces . . . I'm for getting into the Europeans' face." Is that what we needed more of?

Yesterday's speech and the odd, extremely bipartisan reaction to it underscored one of the real dangers of the Obama presidency: taking what had been ideas previously discredited as Republican or right-wing dogma and transforming them into bipartisan consensus. It's not just Republicans but Democrats that are now vested in -- and eager to justify -- the virtues of war, claims of Grave Danger posed by Islamic radicals and the need to use massive military force to combat them, indefinite detention, military commissions, extreme secrecy, full-scale immunity for government lawbreaking, and so many other doctrines once purportedly despised by Democrats but now defended by them because their leader has embraced them.

That's exactly the process that led former Bush DOJ official Jack Goldsmith to giddily explain that Obama has actually done more to legitimize Bush/Cheney "counter-terrorism" policies than Bush and Cheney themselves -- because he made them bipartisan -- and Yale Law Professor Jack Balkin made the same point to The New York Times' Charlie Savage back in July:

In any case, Jack Balkin, a Yale Law School professor, said Mr. Obama’s ratification of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations. By bestowing bipartisan acceptance on them, Mr. Balkin said, Mr. Obama is consolidating them as entrenched features of government.

"What we are watching," Mr. Balkin said, "is a liberal, centrist, Democratic version of the construction of these same governing practices."

Most of the neocons celebrating Obama's speech yesterday made exactly that point in one way or another: if even this Democratic President, beloved by liberals, announces to the world that we have the unilateral right to wage war and that doing so creates Peace and crushes Evil, and does so at a Nobel Peace Prize ceremony of all places, doesn't that end the argument for good?

Much of the liberal praise for Obama's speech yesterday focused on how eloquent, sophisticated, nuanced, complex, philosophical, contemplative and intellectual it was. And, looked at a certain way, it was all of those things -- like so many Obama speeches are. After eight years of enduring a President who spoke in simplistic Manichean imperatives and bullying decrees, many liberals are understandably joyous over having a President who uses their language and the rhetorical approach that resonates with them.

But that's the real danger. Obama puts a pretty, intellectual, liberal face on some ugly and decidedly illiberal polices. Just as George Bush's Christian-based moralizing let conservatives feel good about America regardless of what it does, Obama's complex and elegiac rhetoric lets many liberals do the same. To red state Republicans, war and its accompanying instruments (secrecy, executive power, indefinite detention) felt so good and right when justified by swaggering, unapologetic toughness and divinely-mandated purpose; to blue state Democrats, all of that feels just as good when justified by academic meditations on "just war" doctrine and when accompanied by poetic expressions of sorrow and reluctance. When you combine the two rhetorical approaches, what you get is what you saw yesterday: a bipartisan embrace of the same policies and ideologies among people with supposedly irreconcilable views of the world.

UPDATE: Obviously quite related to all of this, if I had to recommend one article for everyone to read this month, it would be Matt Taibbi's new, masterful account in Rolling Stone of how the Obama administration has aggressively ensured the ongoing domination of our government by Wall Street. I don't want to excerpt any of it because I want to encourage everyone to read it in its entirety; suffice to say, it makes many of the same arguments as those made here in the context of Obama's decisions in the financial and economic realms (though several people, such as Tim Fernholz and Salon's Andrew Leonard, have voiced what appear to be serious objections to some of Taibbi's claims; hopefully, he'll respond).

UPDATE II: One of the most recurring features of the Bush-follower mindset was the claim that the President's supreme duty -- one which the Constitution requires him to swear to -- is to "protect the country," a rhetorical sleight-of-hand suggesting that the Constitution somehow venerates national security above other values. As 23skiddo points out, Obama featured this exact claim in an even more misleading form yesterday when -- in explaining why King and Gandhi were too restrictive for him -- he described himself "as a head of state sworn to protect and defend my nation."

But as this Constitutional scholar surely knows, that is not what he swore to protect and defend when he took his oath of office. Article II of the Constitution actually requires that he swear or affirm that he "will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.'' That's a critical difference, now almost always overlooked/ignored/distorted, as it was yesterday.

UPDATE III: Andrew Sullivan praises Obama's speech and Obama himself as a shining example of Niebuhrian complexity. Again, I think the speech, like Obama himself, was intellectually skillful -- even more so politically -- though, personally, I think Chris Hayes is much closer when he says the speech was Obama's typical "wearying," too-clever "on the one hand on the other, I reject false choices, needle-threading 'pragmatism,'" which Hayes said worked well for Obama's campaign speech on race (I agreed) but does not work in matters of war and peace or for much else with Obama any longer.

In a separate post, Sullivan -- referencing what I wrote here -- says that "Obama's foreign policy positions should have been clear to anyone playing attention during the campaign." I agree. The moment when I was convinced Obama would win the election was when, during the second presidential debate, McCain virtually accused him of being a warmonger -- or at least reckless -- for advocating further strikes on Pakistan. That Obama was defending himself from charges of being too eager to threaten military force -- voiced by McCain of all people -- was a shrewd political move. I don't find anything about Obama's foreign policy positions surprising; as opposed to his civil liberties positions, which he has routinely violated, he outlined these broad foreign policy sketches during the campaign (though added much more detail, and I'd suggest much more receptiveness to war generally, during yesterday's speech). I don't agree at all with the criticism that his escalation in Afghanistan (as opposed to his civil liberties positions) is a "betrayal." This is who Obama is and that has been clear for quite awhile.

Still, the question remains: why did so many Bush-loving neocons and progressives alike react the same way to Obama's comprehensive foreign policy speech yesterday? What could explain that? Does Sullivan have an answer?

virtues of war as a key instrument for peace? As Tom Friedman put it on CNN yesterday: "He got into their faces . . . I'm for getting into the Europeans' face." Is that what we needed more of?

Yesterday's speech and the odd, extremely bipartisan reaction to it underscored one of the real dangers of the Obama presidency: taking what had been ideas previously discredited as Republican or right-wing dogma and transforming them into bipartisan consensus. It's not just Republicans but Democrats that are now vested in -- and eager to justify -- the virtues of war, claims of Grave Danger posed by Islamic radicals and the need to use massive military force to combat them, indefinite detention, military commissions, extreme secrecy, full-scale immunity for government lawbreaking, and so many other doctrines once purportedly despised by Democrats but now defended by them because their leader has embraced them.

That's exactly the process that led former Bush DOJ official Jack Goldsmith to giddily explain that Obama has actually done more to legitimize Bush/Cheney "counter-terrorism" policies than Bush and Cheney themselves -- because he made them bipartisan -- and Yale Law Professor Jack Balkin made the same point to The New York Times' Charlie Savage back in July:

In any case, Jack Balkin, a Yale Law School professor, said Mr. Obama’s ratification of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations. By bestowing bipartisan acceptance on them, Mr. Balkin said, Mr. Obama is consolidating them as entrenched features of government.

"What we are watching," Mr. Balkin said, "is a liberal, centrist, Democratic version of the construction of these same governing practices."

Most of the neocons celebrating Obama's speech yesterday made exactly that point in one way or another: if even this Democratic President, beloved by liberals, announces to the world that we have the unilateral right to wage war and that doing so creates Peace and crushes Evil, and does so at a Nobel Peace Prize ceremony of all places, doesn't that end the argument for good?

Much of the liberal praise for Obama's speech yesterday focused on how eloquent, sophisticated, nuanced, complex, philosophical, contemplative and intellectual it was. And, looked at a certain way, it was all of those things -- like so many Obama speeches are. After eight years of enduring a President who spoke in simplistic Manichean imperatives and bullying decrees, many liberals are understandably joyous over having a President who uses their language and the rhetorical approach that resonates with them.

But that's the real danger. Obama puts a pretty, intellectual, liberal face on some ugly and decidedly illiberal polices. Just as George Bush's Christian-based moralizing let conservatives feel good about America regardless of what it does, Obama's complex and elegiac rhetoric lets many liberals do the same. To red state Republicans, war and its accompanying instruments (secrecy, executive power, indefinite detention) felt so good and right when justified by swaggering, unapologetic toughness and divinely-mandated purpose; to blue state Democrats, all of that feels just as good when justified by academic meditations on "just war" doctrine and when accompanied by poetic expressions of sorrow and reluctance. When you combine the two rhetorical approaches, what you get is what you saw yesterday: a bipartisan embrace of the same policies and ideologies among people with supposedly irreconcilable views of the world.



UPDATE: Obviously quite related to all of this, if I had to recommend one article for everyone to read this month, it would be Matt Taibbi's new, masterful account in Rolling Stone of how the Obama administration has aggressively ensured the ongoing domination of our government by Wall Street. I don't want to excerpt any of it because I want to encourage everyone to read it in its entirety; suffice to say, it makes many of the same arguments as those made here in the context of Obama's decisions in the financial and economic realms (though several people, such as Tim Fernholz and Salon's Andrew Leonard, have voiced what appear to be serious objections to some of Taibbi's claims; hopefully, he'll respond).



UPDATE II: One of the most recurring features of the Bush-follower mindset was the claim that the President's supreme duty -- one which the Constitution requires him to swear to -- is to "protect the country," a rhetorical sleight-of-hand suggesting that the Constitution somehow venerates national security above other values. As 23skiddo points out, Obama featured this exact claim in an even more misleading form yesterday when -- in explaining why King and Gandhi were too restrictive for him -- he described himself "as a head of state sworn to protect and defend my nation."

But as this Constitutional scholar surely knows, that is not what he swore to protect and defend when he took his oath of office. Article II of the Constitution actually requires that he swear or affirm that he "will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.'' That's a critical difference, now almost always overlooked/ignored/distorted, as it was yesterday.



UPDATE III: Andrew Sullivan praises Obama's speech and Obama himself as a shining example of Niebuhrian complexity. Again, I think the speech, like Obama himself, was intellectually skillful -- even more so politically -- though, personally, I think Chris Hayes is much closer when he says the speech was Obama's typical "wearying," too-clever "on the one hand on the other, I reject false choices, needle-threading 'pragmatism,'" which Hayes said worked well for Obama's campaign speech on race (I agreed) but does not work in matters of war and peace or for much else with Obama any longer.

In a separate post, Sullivan -- referencing what I wrote here -- says that "Obama's foreign policy positions should have been clear to anyone playing attention during the campaign." I agree. The moment when I was convinced Obama would win the election was when, during the second presidential debate, McCain virtually accused him of being a warmonger -- or at least reckless -- for advocating further strikes on Pakistan. That Obama was defending himself from charges of being too eager to threaten military force -- voiced by McCain of all people -- was a shrewd political move. I don't find anything about Obama's foreign policy positions surprising; as opposed to his civil liberties positions, which he has routinely violated, he outlined these broad foreign policy sketches during the campaign (though added much more detail, and I'd suggest much more receptiveness to war generally, during yesterday's speech). I don't agree at all with the criticism that his escalation in Afghanistan (as opposed to his civil liberties positions) is a "betrayal." This is who Obama is and that has been clear for quite awhile.

Still, the question remains: why did so many Bush-loving neocons and progressives alike react the same way to Obama's comprehensive foreign policy speech yesterday? What could explain that? Does Sullivan have an answer?

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Rap and Freemasonry

HAARP: Basics

Congrats to Governor Jessie "The Body" Ventura on his television show Conspiracy Theory's success!

Study Material: Bill Cooper - Secret Societis and Psychological Warfare

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Priesthood in the new age

Priesthood in the New Age - Lewis Keizer Ph.D

HIV=AIDS: Fact Or Fraud

Living in Unity - Sarah Schweitzer

“To be content with little is hard, to be content with much is impossible.’’
Link To orig Story



Living in Unity
Residents in this small Maine town embrace Amish neighbors and their belief in leading a simple life

By Sarah Schweitzer, Globe Staff | November 29, 2009

UNITY, Maine - The land was gorgeous. Pastures bounded by forests and overlooked by the distant Dixmont hills. And that was the problem.

As dairy farms in Unity have struggled and died in recent years, town leaders worried the setting would draw developers more interested in erecting neo-Colonials and paving roads than preserving the town’s agricultural heritage. They recruited organic farmers who bought small plots. But vast swaths remained.

Then a little more than a year ago men in banded straw hats and denim suits arrived and started buying big parcels. They built sturdy houses on the hillsides above fields where they planted strawberries and butternut squash, and loosed goats and cows to graze. They started small businesses on their land, turning out metal siding, wind turbines, and furniture, and sold vegetables and baked goods.

“The Amish were the solution that we were looking for - that we could never have dreamed up,’’ said Doug Fox, a neighbor of the Hochstetlers, one of Unity’s eight Amish families.

In a rugged stretch of Maine, where self-reliance and iconoclasm have been long honored, Amish are settling and finding eager neighbors. Amish first made homes in Smyrna and Easton in Aroostook County and most recently in Unity and neighboring Thorndike, in the state’s center, transforming landscapes into scenes that could be postcards from Lancaster, Pa. - byways dotted with pickups giving wide berth to horse-drawn buggies carrying women in bonnets and men with beards. Today, about 200 Amish live in Maine, according to their leaders.

They have come from Michigan and Canada, Tennessee and Kentucky, and other offshoots of original Amish settlements in Pennsylvania. Some are fleeing encroaching suburbs and neck-craning tourists, and seeking open-minded communities that will allow them to practice their brand of ultra-simple living. Some are following a directive to spread the word of their lifestyle and Christian beliefs by starting communities in places far from other Amish settlements.

With their hand-stitched shirts and chaste frocks, the Amish still command double-takes in Maine as they bike to school and carpool to Wal-Mart. But they quickly have become integral parts of their communities even as they observe boundaries to avoid technologies that they shun, such as electricity from the grid. Among some Mainers, there is a small but not insignificant amount of Amish envy.

“I stand here all day and watch them,’’ said Josh Miville, manager of Chase Toys in Unity, a shop that sells all-terrain vehicles and sits across from an Amish farm and the community’s one-room schoolhouse. “And I’ll tell you, they’ve got something figured out that we don’t. It’s the simple life. No power bills, no cellphones, no worries.’’

In Unity, population 1,900, the Amish have found a particularly happy coincidence of interests. The town is home to Unity College, an environmental school that teaches sustainable living practices and lends an earthy quality to the culture. That a group of people with such small carbon footprints - erecting wind turbines to charge battery packs used for powering tools and lanterns, keeping food cold in summer in an insulated basement room lined with three wagonloads of ice chunks from a pond - would land here, strikes many as a perfect alignment.

“You should see how hard they work,’’ said Ron Rudolph, a town selectman and co-owner of an organic vineyard. “I couldn’t believe the houses they put up - in days. And the best part of it is, they don’t drive cars that smoke up the area.’’

Amish residents say the appreciation is mutual.

“I like the laid-back lifestyle,’’ said Andrew Stoll, a 35-year-old father of five who moved to Unity from Michigan and runs a metal roofing business out of his barn. His mother and three brothers also now make their homes here. “People are very neighborly.’’

To be sure, when the Amish first arrived in town last year, they were curiosities, their culture a whispered topic that sent some people scurrying to laptop computers to figure out just what their dress and German-accented English were all about. Residents weren’t sure whether to wave when they saw Amish bicycling along the road, which was now sometimes speckled with manure from horses pulling buggies. Some leery residents asked the town clerk whether they paid property taxes. She assured them they did.

But in short order, they became the cool kids that everyone wanted to know. Recently, neighbors flocked to a pig roast the Hochstetlers hosted. Meanwhile, the Unity Union Church men’s fellowship lobbied for weeks to have the leading Amish men attend their meeting and explain the Amish lifestyle. On any given day, the Amish have their pick of residents’ standing offers to drive them to stores in nearby Waterville. (The Amish in Unity do not own or drive cars but will accept rides.)

“There’s a friendly competition to see who knows the most about the Amish,’’ said Fox, a professor of landscape horticulture at Unity College.

The Amish maintain some divisions. They send their children to their own school and do not permit their children to visit the homes of non-Amish. They are not easily reached because they don’t have phones in their houses, though some have put phones in sheds. Amish discourage phones in homes to preserve family time. They do not read local newspapers or vote in elections. And they often defer to their first language, Pennsylvania Dutch, a German dialect.

But Amish have increasingly become a part of town life. Crosstrax, a funky deli that sells milk and cheeses from local farms, now also offers baskets of Amish-grown vegetables - last week, spaghetti squash from Amish in Thorndike. Amish businessmen regularly show up at Chase Toys, where Miville receives faxes on their behalf. And come Wednesdays, the store is flooded with calls from residents wanting to know whether Abner Stoll is selling his glazed doughnuts across the way that week.

“The Amish don’t so much influence the town as complement the town,’’ said Naomi Caywood, a clerk at Crosstrax.

The Amish residents say they had little idea of Unity’s makeup when they settled here. They were looking for land and heard that Unity had ample stock at reasonable prices. (One family bought a 200-acre parcel for $350,000 and another a 100-acre parcel for $235,000, with money principally earned from small businesses.) They say the land needs work to revive its haying potential, but they have been pleasantly surprised by the town’s embrace of their efforts.

“They want the land to be preserved,’’ said Ervin Hochstetler, 45. He moved his wife, Esther, also 45, and 11 children - now 12 children, ages 21 to 7 months - to Unity from Smyrna, and is planning to build wind turbines that produce compressed air for pneumatic tools.

The Hochstetler home is a study in efficiency, with solar panels on the roof and two small wind turbines in the field. As they tucked into a meal of deer meat and potatoes for lunch on a recent day, their eldest daughter retrieved yogurt from the porch, where food is stored in winter. On the wall, a sign read: “To be content with little is hard, to be content with much is impossible.’’

Still, the house is not without traces of contemporary culture. The baby, Seth, happily bounced in a multicolored plastic ExerSaucer, and when the Hochstetlers hosted the pig roast at their home and neighbors brought bottles of soda and Little Debbie cakes, the Hochstelters did not turn away the offerings.

European Internet Treaty Thingy

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CouncilEurope
Convention on Cybercrime
Budapest, 23.XI.2001

Additional Protocol
Explanatory Report
Français

Non-official translations are available here :
Action against economic crime - Website

Preamble

The member States of the Council of Europe and the other States

signatory hereto,

Considering that the aim of the Council of Europe is to achieve a greater

unity between its members;

Recognising the value of fostering co-operation with the other States

parties to this Convention;

Convinced of the need to pursue, as a matter of priority, a common

criminal policy aimed at the protection of society against cybercrime, inter

alia, by adopting appropriate legislation and fostering international

co-operation;

Conscious of the profound changes brought about by the digitalisation,

convergence and continuing globalisation of computer networks;

Concerned by the risk that computer networks and electronic information

may also be used for committing criminal offences and that evidence

relating to such offences may be stored and transferred by these

networks;

Recognising the need for co-operation between States and private

industry in combating cybercrime and the need to protect legitimate

interests in the use and development of information technologies;

Believing that an effective fight against cybercrime requires increased,

rapid and well-functioning international co-operation in criminal matters;

Convinced that the present Convention is necessary to deter action

directed against the confidentiality, integrity and availability of computer

systems, networks and computer data as well as the misuse of such

systems, networks and data by providing for the criminalisation of such

conduct, as described in this Convention, and the adoption of powers

sufficient for effectively combating such criminal offences, by facilitating

their detection, investigation and prosecution at both the domestic and

international levels and by providing arrangements for fast and reliable

international co-operation;

Mindful of the need to ensure a proper balance between the interests of

law enforcement and respect for fundamental human rights as enshrined

in 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 treaties, which reaffirm the right of everyone to hold opinions

without interference, as well as the right to freedom of expression,

including the freedom to seek, receive, and impart information and ideas

of all kinds, regardless of frontiers, and the rights concerning the respect

for privacy;

Mindful also of the right to the protection of personal data, as conferred, for

example, by the 1981 Council of Europe Convention for the Protection of

Individuals with regard to Automatic Processing of Personal Data;

Considering the 1989 United Nations Convention on the Rights of the

Child and the 1999 International Labour Organization Worst Forms of

Child Labour Convention;

Taking into account the existing Council of Europe conventions on

co-operation in the penal field, as well as similar treaties which exist

between Council of Europe member States and other States, and

stressing that the present Convention is intended to supplement those

conventions in order to make criminal investigations and proceedings

concerning criminal offences related to computer systems and data more

effective and to enable the collection of evidence in electronic form of a

criminal offence;

Welcoming recent developments which further advance international

understanding and co-operation in combating cybercrime, including action

taken by the United Nations, the OECD, the European Union and the G8;

Recalling Committee of Ministers Recommendations No. R (85) 10

concerning the practical application of the European Convention on Mutual

Assistance in Criminal Matters in respect of letters rogatory for the

interception of telecommunications, No. R (88) 2 on piracy in the field of

copyright and neighbouring rights, No. R (87) 15 regulating the use of

personal data in the police sector, No. R (95) 4 on the protection of

personal data in the area of telecommunication services, with particular

reference to telephone services, as well as No. R (89) 9 on

computer-related crime providing guidelines for national legislatures

concerning the definition of certain computer crimes and No. R (95) 13

concerning problems of criminal procedural law connected with

information technology;

Having regard to Resolution No. 1 adopted by the European Ministers of

Justice at their 21st Conference (Prague, 10 and 11 June 1997), which

recommended that the Committee of Ministers support the work on

cybercrime carried out by the European Committee on Crime Problems

(CDPC) in order to bring domestic criminal law provisions closer to each

other and enable the use of effective means of investigation into such

offences, as well as to Resolution No. 3 adopted at the 23rd Conference of

the European Ministers of Justice (London, 8 and 9 June 2000), which

encouraged the negotiating parties to pursue their efforts with a view to

finding appropriate solutions to enable the largest possible number of

States to become parties to the Convention and acknowledged the need

for a swift and efficient system of international co-operation, which duly

takes into account the specific requirements of the fight against

cybercrime;

Having also regard to the Action Plan adopted by the Heads of State and

Government of the Council of Europe on the occasion of their Second

Summit (Strasbourg, 10 and 11 October 1997), to seek common

responses to the development of the new information technologies based

on the standards and values of the Council of Europe;

Have agreed as follows:

Chapter I – Use of terms

Article 1 – Definitions

For the purposes of this Convention:

a "computer system" means any device or a group of interconnected or

related devices, one or more of which, pursuant to a program, performs

automatic processing of data;

b "computer data" means any representation of facts, information or

concepts in a form suitable for processing in a computer system,

including a program suitable to cause a computer system to perform a

function;

c "service provider" means:

i any public or private entity that provides to users of its service the ability

to communicate by means of a computer system, and

ii any other entity that processes or stores computer data on behalf of

such communication service or users of such service.

d "traffic data" means any computer data relating to a communication by

means of a computer system, generated by a computer system that

formed a part in the chain of communication, indicating the

communication’s origin, destination, route, time, date, size, duration, or

type of underlying service.

Chapter II – Measures to be taken at the national level

Section 1 – Substantive criminal law

Title 1 – Offences against the confidentiality, integrity
and availability of computer data and systems

Article 2 – Illegal access

Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally, the access to the whole or any part of a computer

system without right. A Party may require that the offence be committed by

infringing security measures, with the intent of obtaining computer data or

other dishonest intent, or in relation to a computer system that is

connected to another computer system.

Article 3 – Illegal interception

Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally, the interception without right, made by technical

means, of non-public transmissions of computer data to, from or within a

computer system, including electromagnetic emissions from a computer

system carrying such computer data. A Party may require that the offence

be committed with dishonest intent, or in relation to a computer system

that is connected to another computer system.

Article 4 – Data interference

1 Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally, the damaging, deletion, deterioration, alteration or

suppression of computer data without right.

2 A Party may reserve the right to require that the conduct described in

paragraph 1 result in serious harm.

Article 5 – System interference

Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally, the serious hindering without right of the

functioning of a computer system by inputting, transmitting, damaging,

deleting, deteriorating, altering or suppressing computer data.

Article 6 – Misuse of devices

1 Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally and without right:

a the production, sale, procurement for use, import, distribution or

otherwise making available of:

i a device, including a computer program, designed or adapted primarily

for the purpose of committing any of the offences established in

accordance with Articles 2 through 5;

ii a computer password, access code, or similar data by which the whole

or any part of a computer system is capable of being accessed,

with intent that it be used for the purpose of committing any of the offences

established in Articles 2 through 5; and

b the possession of an item referred to in paragraphs a.i or ii above,

with intent that it be used for the purpose of committing any of the offences

established in Articles 2 through 5. A Party may require by law that a

number of such items be possessed before criminal liability attaches.

2 This article shall not be interpreted as imposing criminal liability where

the production, sale, procurement for use, import, distribution or otherwise

making available or possession referred to in paragraph 1 of this article is

not for the purpose of committing an offence established in accordance

with Articles 2 through 5 of this Convention, such as for the authorised

testing or protection of a computer system.

3 Each Party may reserve the right not to apply paragraph 1 of this article,

provided that the reservation does not concern the sale, distribution or

otherwise making available of the items referred to in paragraph 1 a.ii of

this article.

Title 2 – Computer-related offences

Article 7 – Computer-related forgery

Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally and without right, the input, alteration, deletion, or

suppression of computer data, resulting in inauthentic data with the intent

that it be considered or acted upon for legal purposes as if it were

authentic, regardless whether or not the data is directly readable and

intelligible. A Party may require an intent to defraud, or similar dishonest

intent, before criminal liability attaches.

Article 8 – Computer-related fraud

Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally and without right, the causing of a loss of property

to another person by:

a any input, alteration, deletion or suppression of computer data,

b any interference with the functioning of a computer system,

with fraudulent or dishonest intent of procuring, without right, an economic

benefit for oneself or for another person.

Title 3 – Content-related offences

Article 9 – Offences related to child pornography

1 Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally and without right, the following conduct:

a producing child pornography for the purpose of its distribution through

a computer system;

b offering or making available child pornography through a computer

system;

c distributing or transmitting child pornography through a computer

system;

d procuring child pornography through a computer system for oneself or

for another person;

e possessing child pornography in a computer system or on a

computer-data storage medium.

2 For the purpose of paragraph 1 above, the term "child pornography"

shall include pornographic material that visually depicts:

a a minor engaged in sexually explicit conduct;

b a person appearing to be a minor engaged in sexually explicit conduct;

c realistic images representing a minor engaged in sexually explicit

conduct.

3 For the purpose of paragraph 2 above, the term "minor" shall include

all persons under 18 years of age. A Party may, however, require a lower

age-limit, which shall be not less than 16 years.

4 Each Party may reserve the right not to apply, in whole or in part,

paragraphs 1, sub-paragraphs d. and e, and 2, sub-paragraphs b. and c.

Title 4 – Offences related to infringements of copyright
and related rights

Article 10 – Offences related to infringements of copyright and related

rights

1 Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law the

infringement of copyright, as defined under the law of that Party, pursuant

to the obligations it has undertaken under the Paris Act of 24 July 1971

revising the Bern Convention for the Protection of Literary and Artistic

Works, the Agreement on Trade-Related Aspects of Intellectual Property

Rights and the WIPO Copyright Treaty, with the exception of any moral

rights conferred by such conventions, where such acts are committed

wilfully, on a commercial scale and by means of a computer system.

2 Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law the

infringement of related rights, as defined under the law of that Party,

pursuant to the obligations it has undertaken under the International

Convention for the Protection of Performers, Producers of Phonograms

and Broadcasting Organisations (Rome Convention), the Agreement on

Trade-Related Aspects of Intellectual Property Rights and the WIPO

Performances and Phonograms Treaty, with the exception of any moral

rights conferred by such conventions, where such acts are committed

wilfully, on a commercial scale and by means of a computer system.

3 A Party may reserve the right not to impose criminal liability under

paragraphs 1 and 2 of this article in limited circumstances, provided that

other effective remedies are available and that such reservation does not

derogate from the Party’s international obligations set forth in the

international instruments referred to in paragraphs 1 and 2 of this article.

Title 5 – Ancillary liability and sanctions

Article 11 – Attempt and aiding or abetting

1 Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally, aiding or abetting the commission of any of the

offences established in accordance with Articles 2 through 10 of the

present Convention with intent that such offence be committed.

2 Each Party shall adopt such legislative and other measures as may be

necessary to establish as criminal offences under its domestic law, when

committed intentionally, an attempt to commit any of the offences

established in accordance with Articles 3 through 5, 7, 8, and 9.1.a and c.

of this Convention.

3 Each Party may reserve the right not to apply, in whole or in part,

paragraph 2 of this article.

Article 12 – Corporate liability

1 Each Party shall adopt such legislative and other measures as may be

necessary to ensure that legal persons can be held liable for a criminal

offence established in accordance with this Convention, committed for

their benefit by any natural person, acting either individually or as part of an

organ of the legal person, who has a leading position within it, based on:

a a power of representation of the legal person;

b an authority to take decisions on behalf of the legal person;

c an authority to exercise control within the legal person.

2 In addition to the cases already provided for in paragraph 1 of this

article, each Party shall take the measures necessary to ensure that a

legal person can be held liable where the lack of supervision or control by

a natural person referred to in paragraph 1 has made possible the

commission of a criminal offence established in accordance with this

Convention for the benefit of that legal person by a natural person acting

under its authority.

3 Subject to the legal principles of the Party, the liability of a legal person

may be criminal, civil or administrative.

4 Such liability shall be without prejudice to the criminal liability of the

natural persons who have committed the offence.

Article 13 – Sanctions and measures

1 Each Party shall adopt such legislative and other measures as may be

necessary to ensure that the criminal offences established in accordance

with Articles 2 through 11 are punishable by effective, proportionate and

dissuasive sanctions, which include deprivation of liberty.

2 Each Party shall ensure that legal persons held liable in accordance

with Article 12 shall be subject to effective, proportionate and dissuasive

criminal or non-criminal sanctions or measures, including monetary

sanctions.

Section 2 – Procedural law

Title 1 – Common provisions

Article 14 – Scope of procedural provisions

1 Each Party shall adopt such legislative and other measures as may be

necessary to establish the powers and procedures provided for in this

section for the purpose of specific criminal investigations or proceedings.

2 Except as specifically provided otherwise in Article 21, each Party shall

apply the powers and procedures referred to in paragraph 1 of this article

to:

a the criminal offences established in accordance with Articles 2 through

11 of this Convention;

b other criminal offences committed by means of a computer system;

and

c the collection of evidence in electronic form of a criminal offence.

3 a. Each Party may reserve the right to apply the measures referred to

in Article 20 only to offences or categories of offences specified in the

reservation, provided that the range of such offences or categories of

offences is not more restricted than the range of offences to which it

applies the measures referred to in Article 21. Each Party shall consider

restricting such a reservation to enable the broadest application of the

measure referred to in Article 20.

b Where a Party, due to limitations in its legislation in force at the

time of the adoption of the present Convention, is not able to apply the

measures referred to in Articles 20 and 21 to communications being

transmitted within a computer system of a service provider, which system:

i is being operated for the benefit of a closed group of users, and

ii does not employ public communications networks and is not

connected with another computer system, whether public or private,

that Party may reserve the right not to apply these measures to such

communications. Each Party shall consider restricting such a reservation

to enable the broadest application of the measures referred to in Articles

20 and 21.

Article 15 – Conditions and safeguards

1 Each Party shall 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.

2 Such conditions and safeguards shall, as appropriate in view of the

nature of the procedure or power concerned, inter alia, include judicial or

other independent supervision, grounds justifying application, and

limitation of the scope and the duration of such power or procedure.

3 To the extent that it is consistent with the public interest, in particular

the sound administration of justice, each Party shall consider the impact of

the powers and procedures in this section upon the rights, responsibilities

and legitimate interests of third parties.

Title 2 – Expedited preservation of stored computer data

Article 16 – Expedited preservation of stored computer data

1 Each Party shall adopt such legislative and other measures as may be

necessary to enable its competent authorities to order or similarly obtain

the expeditious preservation of specified computer data, including traffic

data, that has been stored by means of a computer system, in particular

where there are grounds to believe that the computer data is particularly

vulnerable to loss or modification.

2 Where a Party gives effect to paragraph 1 above by means of an order

to a person to preserve specified stored computer data in the person’s

possession or control, the Party shall adopt such legislative and other

measures as may be necessary to oblige that person to preserve and

maintain the integrity of that computer data for a period of time as long as

necessary, up to a maximum of ninety days, to enable the competent

authorities to seek its disclosure. A Party may provide for such an order to

be subsequently renewed.

3 Each Party shall adopt such legislative and other measures as may be

necessary to oblige the custodian or other person who is to preserve the

computer data to keep confidential the undertaking of such procedures for

the period of time provided for by its domestic law.

4 The powers and procedures referred to in this article shall be subject

to Articles 14 and 15.

Article 17 – Expedited preservation and partial disclosure of traffic data

1 Each Party shall adopt, in respect of traffic data that is to be preserved

under Article 16, such legislative and other measures as may be

necessary to:

a ensure that such expeditious preservation of traffic data is available

regardless of whether one or more service providers were involved in the

transmission of that communication; and

b ensure the expeditious disclosure to the Party’s competent authority, or

a person designated by that authority, of a sufficient amount of traffic data

to enable the Party to identify the service providers and the path through

which the communication was transmitted.

2 The powers and procedures referred to in this article shall be subject

to Articles 14 and 15.

Title 3 – Production order

Article 18 – Production order

1 Each Party shall adopt such legislative and other measures as may be

necessary to empower its competent authorities to order:

a a person in its territory to submit specified computer data in that

person’s possession or control, which is stored in a computer system or a

computer-data storage medium; and

b a service provider offering its services in the territory of the Party to

submit subscriber information relating to such services in that service

provider’s possession or control.

2 The powers and procedures referred to in this article shall be subject

to Articles 14 and 15.

3 For the purpose of this article, the term “subscriber information” means

any information contained in the form of computer data or any other form

that is held by a service provider, relating to subscribers of its services

other than traffic or content data and by which can be established:

a the type of communication service used, the technical provisions taken

thereto and the period of service;

b the subscriber’s identity, postal or geographic address, telephone and

other access number, billing and payment information, available on the

basis of the service agreement or arrangement;

c any other information on the site of the installation of communication

equipment, available on the basis of the service agreement or

arrangement.

Title 4 – Search and seizure of stored computer data

Article 19 – Search and seizure of stored computer data

1 Each Party shall adopt such legislative and other measures as may be

necessary to empower its competent authorities to search or similarly

access:

a a computer system or part of it and computer data stored therein; and

b a computer-data storage medium in which computer data may be

stored

in its territory.

2 Each Party shall adopt such legislative and other measures as may be

necessary to ensure that where its authorities search or similarly access a

specific computer system or part of it, pursuant to paragraph 1.a, and have

grounds to believe that the data sought is stored in another computer

system or part of it in its territory, and such data is lawfully accessible from

or available to the initial system, the authorities shall be able to

expeditiously extend the search or similar accessing to the other system.

3 Each Party shall adopt such legislative and other measures as may be

necessary to empower its competent authorities to seize or similarly

secure computer data accessed according to paragraphs 1 or 2. These

measures shall include the power to:

a seize or similarly secure a computer system or part of it or a

computer-data storage medium;

b make and retain a copy of those computer data;

c maintain the integrity of the relevant stored computer data;

d render inaccessible or remove those computer data in the accessed

computer system.

4 Each Party shall adopt such legislative and other measures as may be

necessary to empower its competent authorities to order any person who

has knowledge about the functioning of the computer system or measures

applied to protect the computer data therein to provide, as is reasonable,

the necessary information, to enable the undertaking of the measures

referred to in paragraphs 1 and 2.

5 The powers and procedures referred to in this article shall be subject

to Articles 14 and 15.

Title 5 – Real-time collection of computer data

Article 20 – Real-time collection of traffic data

1 Each Party shall adopt such legislative and other measures as may be

necessary to empower its competent authorities to:

a collect or record through the application of technical means on the

territory of that Party, and

b compel a service provider, within its existing technical capability:

i to collect or record through the application of technical means on the

territory of that Party; or

ii to co-operate and assist the competent authorities in the collection or

recording of,

traffic data, in real-time, associated with specified communications in its

territory transmitted by means of a computer system.

2 Where a Party, due to the established principles of its domestic legal

system, cannot adopt the measures referred to in paragraph 1.a, it may

instead adopt legislative and other measures as may be necessary to

ensure the real-time collection or recording of traffic data associated with

specified communications transmitted in its territory, through the

application of technical means on that territory.

3 Each Party shall adopt such legislative and other measures as may be

necessary to oblige a service provider to keep confidential the fact of the

execution of any power provided for in this article and any information

relating to it.

4 The powers and procedures referred to in this article shall be subject

to Articles 14 and 15.

Article 21 – Interception of content data

1 Each Party shall adopt such legislative and other measures as may be

necessary, in relation to a range of serious offences to be determined by

domestic law, to empower its competent authorities to:

a collect or record through the application of technical means on the

territory of that Party, and

b compel a service provider, within its existing technical capability:

i to collect or record through the application of technical means on the

territory of that Party, or

ii to co-operate and assist the competent authorities in the collection or

recording of,

content data, in real-time, of specified communications in its territory

transmitted by means of a computer system.

2 Where a Party, due to the established principles of its domestic legal

system, cannot adopt the measures referred to in paragraph 1.a, it may

instead adopt legislative and other measures as may be necessary to

ensure the real-time collection or recording of content data on specified

communications in its territory through the application of technical means

on that territory.

3 Each Party shall adopt such legislative and other measures as may be

necessary to oblige a service provider to keep confidential the fact of the

execution of any power provided for in this article and any information

relating to it.

4 The powers and procedures referred to in this article shall be subject

to Articles 14 and 15.

Section 3 – Jurisdiction

Article 22 – Jurisdiction

1 Each Party shall adopt such legislative and other measures as may be

necessary to establish jurisdiction over any offence established in

accordance with Articles 2 through 11 of this Convention, when the offence

is committed:

a in its territory; or

b on board a ship flying the flag of that Party; or

c on board an aircraft registered under the laws of that Party; or

d by one of its nationals, if the offence is punishable under criminal law

where it was committed or if the offence is committed outside the territorial

jurisdiction of any State.

2 Each Party may reserve the right not to apply or to apply only in specific

cases or conditions the jurisdiction rules laid down in paragraphs 1.b

through 1.d of this article or any part thereof.

3 Each Party shall adopt such measures as may be necessary to

establish jurisdiction over the offences referred to in Article 24, paragraph

1, of this Convention, in cases where an alleged offender is present in its

territory and it does not extradite him or her to another Party, solely on the

basis of his or her nationality, after a request for extradition.

4 This Convention does not exclude any criminal jurisdiction exercised

by a Party in accordance with its domestic law.

5 When more than one Party claims jurisdiction over an alleged offence

established in accordance with this Convention, the Parties involved shall,

where appropriate, consult with a view to determining the most

appropriate jurisdiction for prosecution.

Chapter III – International co-operation

Section 1 – General principles

Title 1 – General principles relating to international co-operation

Article 23 – General principles relating to international co-operation

The Parties shall co-operate with each other, in accordance with the

provisions of this chapter, and through the application of relevant

international instruments on international co-operation in criminal matters,

arrangements agreed on the basis of uniform or reciprocal legislation,

and domestic laws, to the widest extent possible for the purposes 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.

Title 2 – Principles relating to extradition

Article 24 – Extradition

1 a. This article applies to extradition between Parties for the criminal

offences established in accordance with Articles 2 through 11 of this

Convention, provided that they are punishable under the laws of both

Parties concerned by deprivation of liberty for a maximum period of at least

one year, or by a more severe penalty.

b. Where a different minimum penalty is to be applied under an

arrangement agreed on the basis of uniform or reciprocal legislation or an

extradition treaty, including the European Convention on Extradition (ETS

No. 24), applicable between two or more parties, the minimum penalty

provided for under such arrangement or treaty shall apply.

2 The criminal offences described in paragraph 1 of this article shall be

deemed to be included as extraditable offences in any extradition treaty

existing between or among the Parties. The Parties undertake to include

such offences as extraditable offences in any extradition treaty to be

concluded between or among them.

3 If a Party that makes extradition conditional on the existence of a treaty

receives a request for extradition from another Party with which it does not

have an extradition treaty, it may consider this Convention as the legal

basis for extradition with respect to any criminal offence referred to in

paragraph 1 of this article.

4 Parties that do not make extradition conditional on the existence of a

treaty shall recognise the criminal offences referred to in paragraph 1 of

this article as extraditable offences between themselves.

5 Extradition shall be subject to the conditions provided for by the law of

the requested Party or by applicable extradition treaties, including the

grounds on which the requested Party may refuse extradition.

6 If extradition for a criminal offence referred to in paragraph 1 of this

article is refused solely on the basis of the nationality of the person

sought, or because the requested Party deems that it has jurisdiction over

the offence, the requested Party shall submit the case at the request of the

requesting Party to its competent authorities for the purpose of

prosecution and shall report the final outcome to the requesting Party in

due course. Those authorities shall take their decision and conduct their

investigations and proceedings in the same manner as for any other

offence of a comparable nature under the law of that Party.

7 a. Each 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 Council of Europe the name

and address of each authority responsible for making or receiving

requests for extradition or provisional arrest in the absence of a treaty.

b. The Secretary General of the Council of Europe shall set up and

keep updated a register of authorities so designated by the Parties. Each

Party shall ensure that the details held on the register are correct at all

times.

Title 3 – General principles relating to mutual assistance

Article 25 – General principles relating to mutual assistance

1 The Parties shall afford one another mutual assistance to the widest

extent possible 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.

2 Each Party shall also adopt such legislative and other measures as

may be necessary to carry out the obligations set forth in Articles 27

through 35.

3 Each Party may, in urgent circumstances, make requests for mutual

assistance or communications related thereto by expedited means of

communication, including fax or e-mail, to the extent that such means

provide appropriate levels of security and authentication (including the use

of encryption, where necessary), with formal confirmation to follow, where

required by the requested Party. The requested Party shall accept and

respond to the request by any such expedited means of communication.

4 Except as otherwise specifically provided in articles in this chapter,

mutual assistance shall be subject to the conditions provided for by the

law of the requested Party or by applicable mutual assistance treaties,

including the grounds on which the requested Party may refuse

co-operation. The requested Party shall not exercise the right to refuse

mutual assistance in relation to the offences referred to in Articles 2

through 11 solely on the ground that the request concerns an offence

which it considers a fiscal offence.

5 Where, in accordance with the provisions of this chapter, the requested

Party is permitted to make mutual assistance conditional upon the

existence of dual criminality, that condition shall be deemed fulfilled,

irrespective of whether its laws place the offence within the same category

of offence or denominate the offence by the same terminology as the

requesting Party, if the conduct underlying the offence for which assistance

is sought is a criminal offence under its laws.

Article 26 – Spontaneous information

1 A Party may, within the limits of its domestic law and without prior

request, forward to another Party information obtained within the

framework of its own investigations when it considers that the disclosure

of such information might assist the receiving Party in initiating or carrying

out investigations or proceedings concerning criminal offences

established in accordance with this Convention or might lead to a request

for co-operation by that Party under this chapter.

2 Prior to providing such information, the providing Party may request that

it be kept confidential or only used subject to conditions. 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

1 Where 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.

2 a. 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.

b. The central authorities shall communicate directly with each other;

c. Each 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 Council of Europe the names

and addresses of the authorities designated in pursuance of this

paragraph;

d. The Secretary General of the Council of Europe 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.

3 Mutual 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.

4 The 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.

5 The requested Party may postpone action on a request if such action

would prejudice criminal investigations or proceedings conducted by its

authorities.

6 Before 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.

7 The 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.

8 The 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.

9 a. 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.

b. Any request or communication under this paragraph may be made

through the International Criminal Police Organisation (Interpol).

c. Where 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.

d. Requests 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.

e. Each Party may, at the time of signature or when depositing its

instrument of ratification, acceptance, approval or accession, inform the

Secretary General of the Council of Europe 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

1 When 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.

2 The 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

b not used for investigations or proceedings other than those stated in

the request.

3 If 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.

4 Any 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

1 A 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.

2 A 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.

3 Upon 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.

4 A 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.

5 In 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.

6 Where 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.

7 Any 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

1 Where, 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.

2 Disclosure 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

1 A 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.

2 The 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.

3 The 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.

Article 33 – Mutual assistance regarding the real-time collection of traffic

data

1 The 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.

2 Each 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

1 Each 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;

c the collection of evidence, the provision of legal information, and

locating of suspects.

2 a. 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.

b. If 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.

3 Each 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

1 This Convention shall be open for signature by the member States of

the Council of Europe and by non-member States which have participated

in its elaboration.

2 This Convention is subject to ratification, acceptance or approval.

Instruments of ratification, acceptance or approval shall be deposited with

the Secretary General of the Council of Europe.

3 This 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 the Council of

Europe, have expressed their consent to be bound by the Convention in

accordance with the provisions of paragraphs 1 and 2.

4 In 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

1 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.

2 In 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 the Council of

Europe.

Article 38 – Territorial application

1 Any 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.

2 Any State may, at any later date, by a declaration addressed to the

Secretary General of the Council of Europe, 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.

3 Any 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 Council of Europe.

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

1 The purpose of the present Convention is to supplement applicable

multilateral or bilateral treaties or arrangements as between the Parties,

including the provisions of:

– the European Convention on Extradition, opened for signature in Paris,

on 13 December 1957 (ETS No. 24);

– the European Convention on Mutual Assistance in Criminal Matters,

opened for signature in Strasbourg, on 20 April 1959 (ETS No. 30);

– the Additional Protocol to the European Convention on Mutual

Assistance in Criminal Matters, opened for signature in Strasbourg, on 17

March 1978 (ETS No. 99).

2 If 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 manner that is not inconsistent with

the Convention’s objectives and principles.

3 Nothing 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 the Council

of Europe, 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 clause

1 A 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.

2 When 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.

3 With 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 the Council

of Europe, 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

1 A Party that has made a reservation in accordance with Article 42 may

wholly or partially withdraw it by means of a notification addressed to the

Secretary General of the Council of Europe. 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.

2 A 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.

3 The Secretary General of the Council of Europe may periodically

enquire with Parties that have made one or more reservations as referred

to in Article 42 as to the prospects for withdrawing such reservation(s).

Article 44 – Amendments

1 Amendments to this Convention may be proposed by any Party, and

shall be communicated by the Secretary General of the Council of Europe

to the member States of the Council of Europe, 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.

2 Any amendment proposed by a Party shall be communicated to the

European Committee on Crime Problems (CDPC), which shall submit to

the Committee of Ministers its opinion on that proposed amendment.

3 The Committee of Ministers 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.

4 The text of any amendment adopted by the Committee of Ministers in

accordance with paragraph 3 of this article shall be forwarded to the

Parties for acceptance.

5 Any 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

1 The European Committee on Crime Problems (CDPC) shall be kept

informed regarding the interpretation and application of this Convention.

2 In 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

Justice, as agreed upon by the Parties concerned.

Article 46 – Consultations of the Parties

1 The 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;

c consideration of possible supplementation or amendment of the

Convention.

2 The European Committee on Crime Problems (CDPC) shall be kept

periodically informed regarding the result of consultations referred to in

paragraph 1.

3 The 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, the European

Committee on Crime Problems (CDPC) shall, in co-operation with the

Parties, conduct a review of all of the Convention’s provisions and, if

necessary, recommend any appropriate amendments.

4 Except where assumed by the Council of Europe, expenses incurred in

carrying out the provisions of paragraph 1 shall be borne by the Parties in

the manner to be determined by them.

5 The Parties shall be assisted by the Secretariat of the Council of

Europe in carrying out their functions pursuant to this article.

Article 47 – Denunciation

1 Any Party may, at any time, denounce this Convention by means of a

notification addressed to the Secretary General of the Council of Europe.

2 Such denunciation 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 the notification by the Secretary General.

Article 48 – Notification

The Secretary General of the Council of Europe shall notify the member

States of the Council of Europe, the non-member States which have

participated in the elaboration of this Convention as well as any State

which has acceded to, or has been invited to accede to, this Convention of:

a any signature;

b the deposit of any instrument of ratification, acceptance, approval or

accession;

c any date of entry into force of this Convention in accordance with

Articles 36 and 37;

d any declaration made under Article 40 or reservation made in

accordance with Article 42;

e any other act, notification or communication relating to this Convention.

In witness whereof the undersigned, being duly authorised thereto, have

signed this Convention.

Done at Budapest, this 23rd day of November 2001, in English and in

French, both texts being equally authentic, in a single copy which shall be

deposited in the archives of the Council of Europe. The Secretary General

of the Council of Europe shall transmit certified copies to each member

State of the Council of Europe, to the non-member States which have

participated in the elaboration of this Convention, and to any State invited

to accede to it.

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