Draft second additional protocol to the Convention on Cybercrime (ETS No. 185) on enhanced co-operation and disclosure of electronic evidence
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on 30 September
2021 (30th sitting) (see Doc.
15316rev and Doc. 15379, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Kamal Jafarov). Text
adopted by the Assembly on 30 September 2021 (30th sitting).
1. The Parliamentary
Assembly recalls that the 20th anniversary of the adoption of the
Convention on Cybercrime (ETS No. 185) will be celebrated in November
2021. It welcomes the success that this Council of Europe convention
is enjoying worldwide, currently with 66 ratifications.
2. The Assembly notes that since 2001, the exploitation of information
technology for criminal purposes has strongly increased. Cybercrime
is considered by many States to be a serious threat to human rights,
the rule of law, the functioning of democratic societies and even
to national security. Examples of cybercrime include online sexual
violence against children, the theft and misuse of personal data,
election interference and other attacks against democratic institutions,
attacks against critical State and public-service infrastructures,
misuse of informational technology for terrorist purposes and, during
the ongoing Covid-19 pandemic, cyberattacks on hospitals and laboratories
developing vaccines against the virus and misuse of domain names
to promote fake vaccines and treatments.
3. The purpose of the Second Additional Protocol to the Convention
on Cybercrime is to provide more powerful tools with which to investigate
cybercrime and obtain justice for victims. Given the prevalence
of cybercrime today, victims of online crime must be given a better
chance of obtaining justice and perpetrators made to face a substantially
greater risk of being held to account.
4. The Assembly recalls its previous work on the fight against
cybercrime, including its
Opinion
226 (2001) “Draft Convention on Cyber-crime”, its
Opinion 240 (2002) “Draft additional Protocol to the Convention on Cybercrime
concerning the criminalisation of acts of a racist and xenophobic
nature committed through computer systems”, its
Recommendations 2041 (2014) “Improving user protection and security in cyberspace” and
2077 (2015) “Increasing co-operation against cyberterrorism and
other large-scale attacks on the Internet” and, most recently, its
Resolution 2256 (2019) “Internet governance and human rights”. The Assembly
has consistently taken a constructive approach to improving international
co-operation in this field while upholding human rights.
5. The Assembly recognises that the draft second additional protocol
is designed to function within the criminal justice systems of the
parties, with all the procedures, regulations, methods for transmitting
data, conditions and safeguards foreseen in their respective national
legal systems. This applies also to the “direct co-operation” provided
for by Articles 6 and 7, both of which require parties to establish
a proper domestic legal basis for the exercise of these powers.
6. The Assembly further recognises that there is a difficult
dilemma concerning both the Convention on Cybercrime itself and
its additional protocols. The purpose of these treaties presupposes
that as many States as possible participate in fighting cybercrime,
as such crime does not recognise borders. If they do not, cybercriminals
will continue to operate from safe havens, to the detriment of their
victims all over the world. Countries have very different legal
systems, including in the sphere of criminal law, and different
levels of regulation regarding data protection. The convention and
its protocols can therefore only set minimum standards of protection,
which must be implemented by all participating States, while leaving
open the possibility for more advanced States to implement stronger
protection for their citizens. But such higher standards of protection
must not jeopardise the common goal of the convention and its protocols,
namely to make international co-operation in the fight against cybercrime
more efficient and effective.
7. The Assembly considers that, in principle, the draft second
additional protocol to the Convention on Cybercrime strikes a reasonable
balance in the face of the dilemma described above. Having considered numerous
proposals by the various stakeholders, it nevertheless suggests
the following improvements to further strengthen the protection
of human rights, in particular the right to privacy:
7.1 enshrine the application of
the principle of proportionality in the text of Article 13, in addition
to mentioning it in the explanatory report to the draft protocol;
7.2 specify in Article 14, paragraph 2, that the further processing
of personal data by the receiving party shall be provided for by
law and shall constitute a necessary and proportionate measure in
a democratic society to safeguard important objectives of general
public interest, or shall otherwise provide for the adequate protection
of human rights and freedoms;
7.3 include in the list of information to be made available
to data subjects under Article 14, paragraph 11, the contact details
of the competent data controller;
7.4 revjse paragraph 12.b of
the draft protocol to ensure that, as a general rule, information
related to access and rectification shall be provided to individuals
free of charge;
7.5 expressly recognise in the text of the draft protocol
or its explanatory report that the privileges and immunities of
certain professions, such as lawyers, doctors, journalists, religious
ministers or parliamentarians, shall be respected;
7.6 make mandatory the public disclosure, by oversight authorities,
of aggregate information on the use of the measures under the protocol
and on the number of individuals affected by them;
7.7 refer to the witness protection measures available at
national level in the provisions allowing the taking of evidence
by videoconference, and include the possibility for lawyers to participate
in a hearing conducted by videoconference so that they are able
to defend their clients’ interests;
7.8 enhance “equality of arms” between the prosecution and
the defence by compelling the competent authorities of the parties
to make use of the investigative instruments placed at their disposal by
the draft protocol also on behalf of the defence.
