Chapter 3: Transnational Offences
75
ratify the Convention include Member States of the Council of Europe and non-
Member States which have participated in the drafting process. It will enter into
force when ratified by at least five States, which must include three States from the
Council of Europe. Currently, the Convention has been signed by 33 States, including
the US, but only ratified by Albania and Croatia. In order for it to become operational
in the United States, it requires ratification by the US Senate. By adopting appropriate
legislation and encouraging international co-operation, the Convention aims to
establish a common criminal policy which will protect society from cybercrime. In
the preamble reference is made to the need to maintain a balance between the interests
of law enforcement and respect for fundamental rights. Its provisions supplement
exciting multilateral and bilateral mutual legal assistance and extradition treaties.
In addition to providing law enforcement agencies with powers to search and
intercept computer networks, the Convention addresses infringements of copyright,
computer-related fraud, child pornography and violations of network security. An
Additional Protocol to the Convention on Cybercrime will make it an offence to use
the Internet to publicise racist and xenophobic propaganda.
The Convention has four chapters. Chapter I provides common definitions of some
basic concepts including ‘computer system’, ‘network’, ‘computer data’ and ‘service
provider’. Chapter II, which is subdivided into three sections, deals with substantive
criminal law and procedure and matters of jurisdiction. The list of offences set out in s
1 include offences against the confidentiality, integrity and availability of computer
data systems, computer-related fraud and forgery, offences related to child
pornography and offences related to infringements of copyright. Contracting parties
are also required to implement legislation which makes it an offence to attempt, aid
and abet the commission of the substantive offences. Measures must be taken to provide
national authorities with appropriate powers and procedures to undertake effective
criminal investigations and prosecutions. Thus measures must be taken to allow the
prompt preservation of stored computer data and disclosure of traffic data, production
orders, search and seizure of data stored in a computer, real-time collection of traffic
data and the interception of content data. However, these powers must be balanced
by procedural protections, which may include judicial or other independent
supervision. This chapter concludes with provisions relating to jurisdiction.
Chapter III calls for parties to make liberal use of existing mutual legal assistance
agreements and extradition arrangements for the purpose of investigating and
prosecuting criminal offences. However, in the absence of a mutual assistance treaty,
Do'stlaringiz bilan baham: