3. A Party may reserve the right not to impose criminal liability under paragraphs 1 and 2 of this article in limited circumstances, provided that other effective remedies are available and that such reservation does not derogate from the Party’s international obligations set forth in the international instruments referred to in paragraphs 1 and 2 of this article.
Title 5
ANCILLARY LIABILITY AND SANCTIONS
Article 11
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, aiding or abetting the commission of any of the offences established in accordance with Articles 2 through 10 of the present Convention 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, an attempt to commit any of the offences established in accordance with Articles 3 through 5, 7, 8, and 9 1 a) and c) of this Convention.
3. Each Party may reserve the right not to apply, in whole or in part, paragraph 2 of this article.
Article 12
Corporate liability
1. Each Party shall adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for a criminal offence established in accordance with this Convention, committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within it, based on:
a) a power of representation of the legal person;
b) an authority to take decisions on behalf of the legal person;
c) an authority to exercise control within the legal person.
2. In addition to the cases already provided for in paragraph 1 of this article, each Party shall take the measures necessary to ensure that a legal person can be held liable where the lack of supervision or control by a natural person referred to in paragraph 1 has made possible the commission of a criminal offence established in accordance with this Convention for the benefit of that legal person by a natural person acting under its authority.
3. Subject to the legal principles of the Party, the liability of a legal person may be criminal, civil or administrative.
4. Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offence.
Article 13
Sanctions and measures
1. Each Party shall adopt such legislative and other measures as may be necessary to ensure that the criminal offences established in accordance with Articles 2 through 11 are punishable by effective, proportionate and dissuasive sanctions, which include deprivation of liberty.
2. Each Party shall ensure that legal persons held liable in accordance with Article 12 shall be subject to effective, proportionate and dissuasive criminal or non-criminal sanctions or measures, including monetary sanctions.
Section 2
PROCEDURAL LAW
Title 1
COMMON PROVISIONS
Article 14
Scope of procedural provisions
1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings.
2. Except as specifically provided otherwise in Article 21, each Party shall apply the powers and procedures referred to in paragraph 1 of this article to:
a) the criminal offences established in accordance with Articles 2 through 11 of this Convention;
b) other criminal offences committed by means of a computer system; and
c) the collection of evidence in electronic form of a criminal offence.
3. a) Each Party may reserve the right to apply the measures referred to in Article 20 only to offences or categories of offences specified in the reservation, provided that the range of such offences or categories of offences is not more restricted than the range of offences to which it applies the measures referred to in Article 21. Each Party shall consider restricting such a reservation to enable the broadest application of the measure referred to in Article 20.
b) Where a Party, due to limitations in its legislation in force at the time of the adoption of the present Convention, is not able to apply the measures referred to in Articles 20 and 21 to communications being transmitted within a computer system of a service provider, which system:
(i) is being operated for the benefit of a closed group of users, and
(ii) does not employ public communications networks and is not connected with another computer system, whether public or private,
that Party may reserve the right not to apply these measures to such communications. Each Party shall consider restricting such a reservation to enable the broadest application of the measures referred to in Articles 20 and 21.
Article 15
Conditions and safeguards
1. Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.
2. Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia, include judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or procedure.
3. To the extent that it is consistent with the public interest, in particular the sound administration of justice, each Party shall consider the impact of the powers and procedures in this section upon the rights, responsibilities and legitimate interests of third parties.
Title 2
EXPEDITED PRESERVATION OF STORED COMPUTER DATA
Article 16
Expedited preservation of stored computer data
1. Each Party shall adopt such legislative and other measures as may be necessary to enable its competent authorities to order or similarly obtain the expeditious preservation of specified computer data, including traffic data, that has been stored by means of a computer system, in particular where there are grounds to believe that the computer data is particularly vulnerable to loss or modification.
2. Where a Party gives effect to paragraph 1 above by means of an order to a person to preserve specified stored computer data in the person’s possession or control, the Party shall adopt such legislative and other measures as may be necessary to oblige that person to preserve and maintain the integrity of that computer data for a period of time as long as necessary, up to a maximum of ninety days, to enable the competent authorities to seek its disclosure. A Party may provide for such an order to be subsequently renewed.
3. Each Party shall adopt such legislative and other measures as may be necessary to oblige the custodian or other person who is to preserve the computer data to keep confidential the undertaking of such procedures for the period of time provided for by its domestic law.
4. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Article 17
Expedited preservation and partial disclosure of traffic data
1. Each Party shall adopt, in respect of traffic data that is to be preserved under Article 16, such legislative and other measures as may be necessary to:
a) ensure that such expeditious preservation of traffic data is available regardless of whether one or more service providers were involved in the transmission of that communication; and
b) ensure the expeditious disclosure to the Party’s competent authority, or a person designated by that authority, of a sufficient amount of traffic data to enable the Party to identify the service providers and the path through which the communication was transmitted.
2. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Title 3
PRODUCTION ORDER
Article 18
Production order
1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:
a) a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium; and
b) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider’s possession or control.
2. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
3. For the purpose of this article, the term „subscriber information” means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which can be established:
a) the type of communication service used, the technical provisions taken thereto and the period of service;
b) the subscriber’s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement;
c) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.
Title 4
SEARCH AND SEIZURE OF STORED COMPUTER DATA
Article 19
Search and seizure of stored computer data
1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to search or similarly access:
a) a computer system or part of it and computer data stored therein, and
b) a computer-data storage medium in which computer data may be stored
in its territory.
2. Each Party shall adopt such legislative and other measures as may be necessary to ensure that where its authorities search or similarly access a specific computer system or part of it, pursuant to paragraph 1 a) and have grounds to believe that the data sought is stored in another computer system or part of it in its territory, and such data is lawfully accessible from or available to the initial system, the authorities shall be able to expeditiously extend the search or similar accessing to the other system.
3. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to seize or similarly secure computer data accessed according to paragraphs 1 or 2. These measures shall include the power to:
a) seize or similarly secure a computer system or part of it or a computer-data storage medium;
b) make and retain a copy of those computer data;
c) maintain the integrity of the relevant stored computer data;
d) render inaccessible or remove those computer data in the accessed computer system.
4. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order any person who has knowledge about the functioning of the computer system or measures applied to protect the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the measures referred to in paragraphs 1 and 2.
5. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Title 5
REAL-TIME COLLECTION OF COMPUTER DATA
Article 20
Real-time collection of traffic data
1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to:
a) collect or record through the application of technical means on the territory of that Party, and
b) compel a service provider, within its existing technical capability:
(i) to collect or record through the application of technical means on the territory of that Party, or
(ii) to co-operate and assist the competent authorities in the collection or recording of,
traffic data, in real-time, associated with specified communications in its territory transmitted by means of a computer system.
2. Where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to in paragraph 1 a), it may instead adopt legislative and other measures as may be necessary to ensure the real-time collection or recording of traffic data associated with specified communications transmitted in its territory, through the application of technical means on that territory.
3. Each Party shall adopt such legislative and other measures as may be necessary to oblige a service provider to keep confidential the fact of the execution of any power provided for in this article and any information relating to it.
4. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Article 21
Interception of content data
1. Each Party shall adopt such legislative and other measures as may be necessary, in relation to a range of serious offences to be determined by domestic law, to empower its competent authorities to:
a) collect or record through the application of technical means on the territory of that Party, and
b) compel a service provider, within its existing technical capability:
(i) to collect or record through the application of technical means on the territory of that Party, or
(ii) to co-operate and assist the competent authorities in the collection or recording of,
content data, in real-time, of specified communications in its territory transmitted by means of a computer system.
2. Where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to in paragraph 1 a), it may instead adopt legislative and other measures as may be necessary to ensure the real-time collection or recording of content data on specified communications in its territory through the application of technical means on that territory.
3. Each Party shall adopt such legislative and other measures as may be necessary to oblige a service provider to keep confidential the fact of the execution of any power provided for in this article and any information relating to it.
4. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.
Section 3
JURISDICTION
Article 22
Jurisdiction
1. Each Party shall adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with Articles 2 through 11 of this Convention, when the offence is committed: