IRIS Actions / Cybercrime / Racisme /

Projet de protocole du Conseil de l'Europe
contre le racisme et la xénophobie
(en liaison avec la
Convention sur la cybercriminalité)

Voir aussi notre dossier complet sur cette Convention

Attention : document du Conseil de l'Europe, mis en ligne par IRIS, qui a pu se le procurer
Note du 14-02-02 : ce document a été modifié au cours de la deuxième réunion du comité PC-RX du 11 au 13 février 2002.
Note du 20-02-02 : le Conseil de l'Europe a publié le 19-02-02 la version N°3 du projet, datée du 14-02-02, accessible à partir de notre dossier sur ce protocole.


Appendix III

Strasbourg, 18 December 2001 Restricted
PC-RX (01)
Draft N° 2

 

EUROPEAN COMMITTEE ON CRIME PROBLEMS
(CDPC)

 

COMMITTEE OF EXPERTS ON THE CRIMINALISATION ACTS OF A RACIST OR XENOPHOBIC NATURE COMMITTED THROUGH COMPUTER NETWORKS
(PC-RX)

 

PRELIMINARY DRAFT1
 
of the
 
First Additional Protocol to the Convention on cybercrime on
the criminalisation of acts of a racist or xenophobic nature
through computer networks

 


 

PRELIMINARY DRAFT
 
First Additional Protocol to the Convention on cybercrime on
the criminalisation of acts of a racist or xenophobic nature through computer networks

 

The member States of the Council of Europe and the other Parties to the Convention on Cyber-crime, opened for signature in Budapest on 23 November 2001, signatories to this Protocol,

Considering that the aim of the Council of Europe is to achieve a greater unity between its members;

Convinced that any act of a racist or xenophobic nature constitutes a violation of Human Rights, the Rule of Law and democratic stability, which are at the core of the Council of Europe's mission and on which democracies rest;

Considering that all human beings are born free and equal in dignity and rights and with a potential to contribute constructively to the development and the well-being of our societies;

Stressing the need to secure a full and effective implementation of all human rights without any discrimination or distinction, as enshrined in European and other international instruments;

Recognising that the freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every human being;

Mindful of the need to ensure a proper balance between freedom of expression and an effective fight against acts of a racist or xenophobic nature through computer networks;

Aware that computer networks offer an unprecedented means of facilitating freedom of expression and communication around the globe;

Concerned however by the risk that such computer networks are misused or abused to disseminate racist or xenophobic propaganda;

Convinced of the need to criminalise acts of a racist or xenophobic nature through computer networks and to increase international co-operation in this field;

Taking into account the relevant international legal instruments in this field and, in particular, the European Convention on Human Rights and, particularly, its Protocol No. 12, the existing Council of Europe conventions on co-operation in the penal field and, particularly, the Convention on Cybercrime, the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965;

Welcoming the recent developments which further advance international understanding and co-operation in combating both cybercrime and racism and xenophobia;

Having 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, 10-11 October 1997) to seek common responses to the developments of the new technologies based on the standards and values of the Council of Europe;

Have agreed as follows:

Chapter I - Common provisions

Article 1 - Purpose

The purpose of this Protocol is to supplement, as between the Parties to the Protocol, the provisions of the Convention on Cybercrime as regards the criminalisation of acts of a racist or xenophobic nature through computer networks.

Article 2 - Definitions

For the purposes of this Protocol:

  1. "Racist or xenophobic material" means any written material, any image or any other representation of thoughts or theories, which advocates, promotes, incites or is likely to incite acts of violence2, hatred or discrimination against any individual or group of individuals, based on race, colour, religion, descent, nationality, national or ethnic origin";
  2. "racist and xenophobic group" means a structured organisation established over a period of time, of more than two persons, acting in concert to commit offences referred to in Article 3 below;

Chapter II - Measures to be taken at national level

Section 1 - Criminal offences

Article 3 - Racist and xenophobic material in a computer system

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:

  1. offering or making available racist or xenophobic material through a computer system;
  2. distributing or transmitting racist or xenophobic material through a computer system;
  3. [procuring racist or xenophobic material through a computer system for oneself or for another person];
  4. producing racist or xenophobic material in a computer system for its distribution.

Article 4 - Expressing racist or xenophobic ideas through a computer network

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:

  1. inciting violence or hatred for a racist or xenophobic purpose through computer network;
  2. insulting or threatening individuals or groups for a racist or xenophobic purpose through computer network;
  3. directing, supporting of or participating in activities of a racist or xenophobic group through computer network;

Article 5 - 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 and without right, aiding or abetting the commission of any of the offences established in accordance with Articles 3 and 4 of this Protocol, 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 and without right, an attempt to commit any of the offences established in accordance with Articles 3 and 4 of this Protocol.

Section 2 - Other measures

Article 6 - Sanctions and measures

Each Party shall adopt such legislative and other measures as may be necessary to ensure that the criminal offence established in accordance with Articles 3 and 4 is punishable by effective, proportionate and dissuasive sanctions, which include deprivation of liberty.

Article 7 - Aggravating circumstances

1.  Each Party shall ensure that the commission of offences established in accordance with Articles 3 and 4 of this Protocol by a racist or xenophobic group is regarded as an aggravating circumstance in the determination of the penalty applicable thereof.

2. Each Party shall ensure that racist and xenophobic motivation is regarded as an aggravating circumstance in the determination of the penalty for offences other than those established in accordance with Articles 3 and 4 of this Protocol.

Article 8 - Exculpatory circumstances

Each Party shall ensure that those who commit, aid or abet the commission of, any of offences referred to in Articles 3 and 4 of this Protocol may be exempted from criminal liability where such acts are committed for law enforcement purposes.

Article 9 - Political offences3

Each Party shall ensure that the offences referred to in Articles 3 and 4 of this Protocol are not regarded as political offences justifying refusal to comply with requests for mutual legal assistance or extradition.

Chapter III - Final provisions

Article 10 - Expression of consent to be bound

1.  This Protocol shall be open for signature by the States which have signed the Convention on cybercrime, which may express their consent to be bound by either:

  1. signature without reservation as to ratification, acceptance or approval; or
  2. signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.

2.  A State may not sign this Protocol without reservation as to ratification, acceptance or approval, or deposit an instrument of ratification, acceptance or approval, unless it has already deposited or simultaneously deposits an instrument of ratification, acceptance or approval of the Convention on cybercrime.

3.  The instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 11 - Entry into force

1. This Protocol shall come into force on the first day of the month following the expiration of a period of three months after the date on which five member States of the Council of Europe have expressed their consent to be bound by the Protocol, in accordance with the provisions of Article 10.

2. In respect of any State which subsequently expresses its consent to be bound by it, the Protocol shall come into force on the first day of the month following the expiration of a period of three months after the date of its signature without reservation as to ratification, acceptance or approval or deposit of its instrument of ratification, acceptance or approval.

Article 12 - Accession

1. After the entry into force of this Protocol, any State which has acceded to the Convention on cybercrime may also accede to the Protocol.

2. Accession shall be effected by the deposit with the Secretary General of the Council of Europe of an instrument of accession which shall take effect on the first day of the month following the expiration of a period of three months after the date of its deposit.

Article 13 - Amendments

1. Amendments to this Protocol 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 Protocol in accordance with the provisions of Article 12.

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 European Committee on Crime Problems (CDPC) and, following consultation with the non-member State 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 14 - Settlement of disputes

1. The European Committee on Crime Problems (CDPC) shall be kept informed regarding the interpretation and application of this Protocol.

2. In case of a dispute between Parties as to the interpretation or application of this Protocol, 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 European Committee on Crime Problems (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 15 - Consultations of the Parties

1. The Parties shall, as appropriate, consult periodically with a view to facilitating:

  1. the effective use and implementation of this Protocol, including the identification of any problems thereof;

  2. the exchange of information on significant legal, policy or technological developments pertaining to cybercrime, the collection of evidence in electronic form, the criminalisation of acts of a racist or xenophobic nature;

  3. consideration of possible supplementation or amendment of the Protocol.

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 European Committee on Crime Problems (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 Protocol. At the latest three years after the present Protocol enters into force, the European Committee on Crime Problems (CDPC) shall, in co-operation with the Parties, conduct a review of all of the Protocol'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 16 - Reservations

No reservation may be made in respect of any provision of this Protocol.

Article 17 - 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 Protocol shall apply.

2.  In respect of such territory, the Protocol 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 such declaration by the Secretary General of the Council of Europe.

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. 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 18 - Denunciation

1.  Any Party may, at any time, denounce this Protocol 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 19 - 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 Protocol as well as any State which has acceded to, or has been invited to accede to, this Protocol 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 Protocol in accordance with Articles 8, 9 and 10;

d. any other act, notification or communication relating to this Protocol.

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at ......... , this ..........., 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 Protocol, and to any State invited to accede to it.


1 This draft reflects the changes agreed to at the first meeting of Committee PC-RX (17 - 18 December 2002). Those changes appear in bold and are underlined.
 
2 At the first meeting of Committee PC-RX (17 - 18 December 2001), the United States and Japan expressed a clear preference for the following formulation: "imminent violence...". Moreover, the United Kingdom, the United States and Japan wished to include a specific intent to incite, either in this definition or in Article 3. Finally, Italy and the United States did not endorse the inclusion of "advocates, promotes ...".
 
3 At the first meeting of Committee PC-RX (17 - 18 December 2001), the United States delegation indicated that in its view this provision warranted further consideration.

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