Интернет конференция

Малишев М.А.
студент 3-го курсу факультету міжнародно-правових відносин НУ "ОЮА"

Науковий керівник: к.п.н. Логінова Н.І.

CONVENTION ON CYBERCRIME: THE MAIN OBJECTIVES AND LEGAL ASPECTS

 The revolution in information technologies has changed society fundamentally and will probably continue to do so in the foreseeable future. Many tasks have become easier to handle. Where originally only some specific sectors of society had rationalized their working proecedures with the help of information technology, now hardly any sector of society has remained unaffected. Information technology has in one way or the other pervaded almost every aspect of human activities.

The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or just the Budapest Convention, is the first international treaty seeking to address Computer crime and Internet crimes by harmonizing national laws, improving investigative techniques and increasing cooperation among nations. It was drawn up by the Council of Europe in Strasbourg with the active participation of the Council of Europe's observer states Canada and Japan.

    The Convention and its Explanatory Report was adopted by the Committee of Ministers of the Council of Europe at its 109th Session on 8 November 2001. It was opened for signature in Budapest, on 23 November 2001 and it entered into force on 1 July 2004. As of 28 October 2010, 30 states had signed, ratified and acceded to the convention, while a further 16 states had signed the convention but not ratified it.

On 1 March 2006 the Additional Protocol to the Convention on Cybercrime came into force. Those States that have ratified the additional protocol are required to criminalize the dissemination of racist and xenophobic material through computer systems, as well as of racist and xenophobic-motivated threats and insults (Michael A. Vatis /Steptoe & Johnson LLP/ The Council of Europe Convention on Cybercrime. – National Academy of Sciences. – [Електронний ресурс]. – Режим доступу: http://www.nap.edu/openbook.php?record_id=12997&page=207 ).

 The Convention is the first international treaty on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography, hate crimes and violations of network security. It also contains a series of powers and procedures such as the search of computer networks and Lawful interception.

The Convention states as its goal the “protection of society against cybercrime” (Treaty open for signature by the member States and the non-member States which have participated in its elaboration and for accession by other non-member States [Електронний ресурс]. – Режим доступу: http://conventions.coe.int/Treaty/
Commun/ChercheSig.asp?NT=185&CL=ENG) by “providing for the criminalization of such conduct . . . 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.”

The Convention is divided into three principal parts. The first part addresses the substantive cybercrime offenses that each ratifying state is obliged to adopt in its national law. The second part concerns investigative procedures the states must implement. And the third part relates to mechanisms to enhance international cooperation. (Recommendation № R (89) 9 of the Committee of Ministers of the Council of Europe to member States for the Computer-Related Crime and Final Report of the European Commitee on Crime Problems (adopted by the Committee of Ministers on 13 September 1989 at the 428 th meeting of the Ministers’ Deputies). – Strasbourg, 1990).

Investigative Offences. The Convention requires Parties (i.e., ratifying states) to “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”;

·  “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”;

·   “the damaging, deletion, deterioration, alteration or suppression of computer data without right”… etc.

The Convention also requires Parties to criminalize the “willful” infringement of copyright and related rights when done “on a commercial scale and by means of a computer system.”  In addition, Parties must ensure that all of the listed offenses “are punishable by effective, proportionate and dissuasive sanctions, which include deprivation of liberty.”

Investigative Procedures. The second principal part of the Convention requires Parties to enact certain procedural mechanisms and procedures to facilitate the investigation of cybercrimes or any crimes committed with a computer or for which evidence may be found in “electronic form.”

International Cooperation. The third principal part of the Convention sets out mechanisms by which Parties to the convention will assist each other in investigating cybercrimes and other crimes involving electronic evidence. The Convention provides that Parties “shall co-operate with each other . . . 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.” However, this cooperation shall occur “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.” This suggests that cooperation may be limited or delayed if required by law or other arrangements. (Convention on Cybercrime. [Електронний ресурс]. – Режим доступу: http://conventions.coe.int/Treaty/en/Reports/Html/185.htm)

The Convention is the product of four years of work by Council of Europe experts, but also by the United States, Canada, Japan and other countries which are not members of the Organization. It has been supplemented by an Additional Protocol making any publication of racist and xenophobic propaganda via computer networks a criminal offence.

Ukraine joined the Convention, ratifying it in 2005. (Про ратифікацію Конвенції про кіберзлочинність [Електронний ресурс] : Закон України від 7 вересня 2005 р. № 2824-IV // Відомості Верховної Ради України (ВВР). – 2006. - № 5-6. – Ст.71. – В ред. 14.10.2010 р. – Режим доступу : http://zakon4.rada.gov.ua/laws/show/).

Under the European Convention Ukraine has developed a "Concept of strategy and tactics to combat computer crime", which clearly outlines the key issues to be resolved for the information space of the state as a whole. There also was adopted a new Criminal Code, which entered into force on 01.09.2001. It contains a separated chapter XVI "Crime in the use of computers (computer) systems and computer networks", it contains six articles: 361, 361¹, 361², 362, 363, 363¹ (          Кримінальний кодекс України (із змінами та доповненнями станом на 25 травня 2012 р.) – Х. : Одіссей, 2012. – С. 84-85). To the article 1 of the Law of Ukraine “On Combating Terrorism” the notion of cyber terrorism as crimes which are offended using computer systems and communication networks to damage dangerous objects, which strictly or indirectly created the risk of emerging any extreme situation consequently to these actions and constitute a menace for the personal, population and environment; create conditions for crashes and  catastrophes caused by technological activities of people. (Про боротьбу з тероризмом [Електронний ресурс] : Закон України від 20 березня 2003 № 638-IV // Відомості Верховної Ради України (ВВР). – 2003. – № 25. – ст.180. – В ред. 5.01.2013 р. – Режим доступу : http://zakon4.rada.gov.ua/laws/show). Article 7 of the Law of Ukraine "On National Security of Ukraine" dated 19.06.2003 among the threats to its national interests and national security in the information sphere it comes to computer crime and computer terrorism. There were developed other legal documents, which are intended to help the prevention and combating the phenomenon of cybercrime (Про основи національної безпеки України [Електронний ресурс] : Закон України від 19 червня 2003 № 964-IV // Відомості Верховної Ради України (ВВР). – 2003. – № 39. – ст.351. – В ред. 13.10.2012 р. – Режим доступу : http://zakon4.rada.gov.ua/laws/show).

It is also necessary to draw attention to the fact that foreign countries year by year increase the number of services and departments for combating cybercrime so it is worth to study and learn from their experience. For example, in the United States set up such agencies as the US Cyber Command (military division that operates in cyberspace), United States Computer Emergency Readiness Team (National Cyber Defense Department U.S. Department of Homeland Security), Computer Crime and Intellectual Property Section (Department of Computer Crime and intellectual property), Internet police (Internet police, the police network) in Estonia in 2006, the group developed a computer emergency response (CERT-EE). (Волеводз А.Г. Конвенция о киберпреступности: новации правового регулирования / А.Г. Волеводз // Правовые вопросысвязи. – 2007. – № 2. – С. 17-25.)

In Ukraine, on the agenda is the establishment of new institutions and organizations coordinating and conducting the fight against cybercrime, which, in turn, requires the training of national personnel, agents, which could be called upon to serve in the multinational agencies and organizations to combat cybercrime.