(No.121) Protecting you and your rights: Article 15 of the Budapest Convention on Cybercrime
What impact can security and governance issues have on the Internet and human
States have a positive obligation to protect the rights of individuals. This includes their protection against crime but also against arbitrary interference into rights by public authorities. The Budapest Convention helps states meet this challenge with respect to cybercrime: it requires governments to take measures against offences against and by means of computer data and systems, to provide law enforcement with procedural powers for effective investigations and to engage in efficient international cooperation. At the same time Article 15 protects individuals against arbitrary intrusion. According to Article 15, the procedural powers adopted by Parties to the Convention are to be “subject to conditions and safeguards provided for under its domestic law which shall provide for the adequate protection of human rights and liberties...” Article 15 establishes principles and requirements to ensure that governments meet their positive obligation to protect people and their rights against cybercrime while at the same time respecting their fundamental rights when investigating crime. General rule of law requirements include: There shall be no punishment without a law Everyone has the right to a fair trial, including the presumption of innocence Interference in the rights of individuals can only be in accordance with the law and as is necessary in the public interest – including crime prevention – or the protection of the rights of others. This means that investigative measures – in particular if they entail an intrusion into rights – are to be prescribed by law. Anyone whose rights are violated must have the right to an effective remedy States need to put in place a framework that allows to reconcile different interests that are to be protected. States have a positive obligation to protect the rights of individuals. This may include criminal law and effective enforcement to bring offenders to justice. Principles related to procedural law measures include: Principle of proportionality, meaning in particular that “the power or procedure shall be proportional to the nature and circumstances of the offence”. Judicial or other independent supervision Grounds justifying the application of the power or procedure and the limitation on the scope or the duration Powers and procedures must be reasonable and “consider the impact on the rights, responsibilities and legitimate interests of third parties”. The aim of the workshop is to share experience on the practical application of Article 15. This question is being addressed under joint projects of the Council of Europe and the European Union in Eastern and South-eastern Europe (CyberCrime@EAP and CyberCrime@IPA) and has been discussed at the 2011 Octopus conference (www.coe.int/octopus). The proposed workshop will help broaden the debate and “operationalise” Article 15.
Alexander Seger, Council of Europe, Strasbourg, France
Representatives of law enforcement and civil society from countries of different regions of the world. Details TBC