Statement by Deputy Head of the Russian Interdepartmental Delegation Mr. Dmitry Bukin during the third session of the UN Special Committee on Combating the Use of ICT for Criminal Purposes under the agenda item “International Cooperation” (August 29 – September 2)
Madam Chair,
Distinguished Colleagues,
I would like to thank the Secretariat and Madam Chair for the work they did in preparation for the third substantive session.
Today we begin our discussions of the most important chapter, which is international cooperation.
Effective implementation of the Convention will largely depend on what mechanisms of interaction between the law enforcement agencies of our countries we establish within its framework, how prompt and universal are the channels for the exchange of information and electronic evidence.
For this purpose, participation of delegations in full, including law enforcement experts, is extremely important. In this regard, I note with indignation that none of the members of the official Russian delegation, with the exception of yours truly, was issued an entry visa to the United States. This is yet another blatant violation by the United States of America of its obligations as the host country of the UN Headquarters.
Furthermore, I would like to say that I fully share and support that part in the opening statement of the distinguished Madam Chair, where she said that the political considerations should remain outside of this hall. There are other fora here at the UN to discuss these issues. The Ad Hoc Committee is a specialized body for the development of an international legal instrument for combating ICT-crime and, as such, it is not the place for such discussions. References to the political history from half a century ago made by individual countries are all the more inappropriate.
Answers to key questions to the chapter "International cooperation"
General principles and scope of the provisions on international cooperation
1. What forms of international cooperation should be stipulated in the Convention? In addition to extradition, mutual legal assistance and law enforcement cooperation, should the Convention cover transfer of sentenced persons; transfer of criminal proceedings; joint investigation; and international cooperation for the purposes of confiscation, and return and disposal of confiscated assets?
A: In addition to extradition, mutual legal assistance in criminal matters, cooperation between law enforcement agencies, the future Convention should provide for such forms of cooperation as mutual emergency assistance, transfer of criminal proceedings, transfer of convicted persons, joint investigations, mutual assistance in the collection of information in a digital format, mutual assistance in collection of technical parameters of the traffic in real time, expeditiously ensuring digital data security, expedited disclosure of saved traffic data. Special investigative methods should also be applied. The Convention should cover international cooperation for the purpose of confiscation of assets, which is especially important given the enormous proceeds cybercriminals receive from the criminal activities they engage in using ICTs, as well as international cooperation with the goal of returning and disposing of the confiscated stolen property. International cooperation should be carried out in order to investigate, examine and prosecute crimes and other illegal acts committed in the ICT domain.
2. What should be the scope of offences to which the international cooperation mechanisms stipulated in the Convention apply? The proposals submitted by Member States indicate a common understanding that the extradition provisions would apply only to offences established in accordance with the Convention. In relation to other forms of international cooperation such as mutual legal assistance, transfer of criminal proceedings and cooperation between law enforcement, should these provisions apply to the collection and sharing of electronic evidence for offences beyond those established in accordance with the Convention? If so, should they apply regardless of the penalties for the offences where electronic evidence needs to be collected and shared, or should the scope be limited to “serious offences”?
A: International cooperation mechanisms should be used to deal with all crimes and other offenses covered by the future Convention. In particular, the Russian draft Convention, submitted to the AHC as a contribution, provides for 23 elements of such unlawful acts.
International cooperation on extradition matters should be pursued if extradition requests relate to offenses with a sentence of at least one year imprisonment or a more severe penalty.
Other forms of international cooperation should also be used in case of offenses provided for in the Convention. Cooperation under the future Convention should not extend to petty offences but should be limited to "serious offences". In exceptional cases, assistance may be provided, if a justification for recieveing such aid from another state is given and the potential impacts in case if such assistance is not provided are wieghed in. The rationale for the need of such assistance must be included in State's request.
It is also possible that collection of digital evidence will be required in connection with offenses that go beyond the scope of those established in the draft Convention. We do not exclude international cooperation in collecting such information in accordance with the procedure established by the Convention and national legislation, observing the principles of sovereignty, non-interference in the internal affairs of states, certain conditions and guarantees.
Where appropriate and consistent with their domestic legal systems, participating States may provide each other with assistance in the investigation as well as trial of civil and administrative cases related to illegal acts in the field of the use of ICTs.
3. Should the provisions on extradition and mutual legal assistance follow the models established by the United Nations Convention against Transnational Organized Crime or the United Nations Convention against Corruption, and, if so, to what extent?
A: Yes, the provisions on extradition and legal assistance in criminal matters contained in these Conventions are similar, detailed enough and easy to apply.
At the same time, such provisions of the future Convention could be supplemented with appropriate details, taking into account the specifics of the scope of application, the speed of their transmission and other features.
4. Should the international cooperation provisions apply to the investigation and prosecution of civil and administrative cases related to the liability of legal persons for committing an offence established in accordance with the Convention?
A: Yes, they should. When it is appropriate and consistent with the domestic legal system of States Party, they shall assist each other in the investigation and proceedings in civil and administrative cases related to illegal acts in the field of the use of ICT.
The Convention should contain a provision on the liability of legal persons, which, depending on the legal principles of the state, can be either criminal, civil or administrative. This provision is contained in the Russian draft Convention.
5. Should the Convention include a threshold penalty period for the offences to which the extradition article may apply (e.g. offences subject to a maximum penalty of not less than a given number of years of imprisonment)?
A: Yes, it should. The Convention should provide for a provision that would apply to extraditable offenses punishable under the law of the requesting and the requested State Party by imprisonment for at least one year or a more severe penalty.
6. How can consistency be ensured between international cooperation provisions and the respect of human rights?
A: The Convention should include general provisions requiring States Party to ensure that the establishment, exercise and application of authorities and procedures under the Convention are carried out in accordance with the conditions and guarantees provided for by norms of national legislation ensuring adequate protection of human rights and freedoms, including the rights arising from the State Party's obligations under the 1966 International Covenant on Civil and Political Rights and other international human rights treaties to which that State is a party.
At the same time, it should be noted that the Convention should not be “stuffed” with human rights provisions, given that its purpose is not to regulate the human rights aspect. In this regard, the provisions on human rights that must be observed in the framework of the implementation of the future Convention should be included in the section of the draft Convention "General Provisions".
7. How should the chapter on international cooperation determine the requirements for the protection of personal data for the purposes of the Convention?
A: Unfortunately, there is currently no legally binding global document establishing universal guiding principles for processing of personal data, a procedure for their protection, as well as cooperation mechanisms between national authorities aimed at overseeing compliance with personal data protection legislation. In this regard, it seems appropriate to include in the Convention a separate article dedicated to the protection of personal data in cases where such data is transferred internationally from the territory of one State Party to the territory of another State Party in response to a relevant request.
Considering that the fundamental purpose of transferring personal data is for it to be processed by the authorized national bodies of the State Party receiving the said data, which exercise their authorities for the purposes of criminal, administrative or civil proceedings, other judicial or administrative functions directly related to these proceedings, as well as to prevent an immediate and serious threat to public security and the security of persons whose personal data is transferred, we believe that the article of the Convention on the protection of personal data should ensure the following:
- personal data is processed strictly within the legal framework;
- the content and volume of the requested personal data is in line with the declared purpose of processing;
- personal data received is processed solely for achieving a specific, legitimate purpose determined in advance;
- transfer of received personal data to third parties is prohibited;
- personal data is stored in a form that permits identification of the subject of personal data no longer than required by the purpose of processing personal data.
It is our belief that should the receiving party wish to process the received personal data for purposes other than those specified in the original request, an additional request should be raised. The relevant article of the Convention should also provide for the right of a State Party to prohibit or restrict cross-border transfer of personal data on the grounds of protecting the foundations of the constitutional order, morality, health, rights and legitimate interests of citizens, ensuring national defense and State security, protecting economic and financial interests, sovereignty, territorial integrity and other interests on the international arena.
Transmission of requests and materials
8. What channels for transmission of requests for extradition should be provided for in the Convention?
A: Extradition requests must be submitted directly to the central authorities of the State Party to which the extradition request is addressed, subject to the respective competence of those authorities, or through diplomatic channels. The Convention should contain the provision that the State, upon submitting its instrument of ratification, must designate a central authority which will be responsible for the direction and execution of extradition requests.
A copy of the request can also be sent via Interpol, as well as by e-mail to the relevant central authority of the requested State, followed up by the mandatory submission of the original request.
9. What channels of transmission for mutual legal assistance requests should be provided for in the Convention, in particular considering the nature of offences due to be coveredby the Convention?
A: Requests of legal assistance should be transmitted via channels established with the central or competent authorities of the States Party to the Convention, as well as via diplomatic channels. At the same time, requests can also be sent by e-mail, followed up by the submission of the original request.
In the event of an emergency, requests can be transmitted through the 24/7 contact point network.
10. What means of transmitting requests are needed to facilitate international cooperation, in particular considering the nature of offences due to be covered by the Convention? Could requested documents or electronic evidence be transmitted by electronic means?
A: In urgent cases, given the nature of the offenses, requests and documents can be transmitted using electronic means of communication, followed up by the submission of the original documents.
At the same time, it is obvious that the traditional forms of submitting requests and other documentation required for its execution given the specifics of offenses, will not contribute to an effective cooperation in this area.
In this regard, the Convention should contain provisions that electronic evidence can be transmitted using special, secure electronic communication channels in order to avoid leaks of the transmitted information.
In addition, we believe that a future Convention should encourage the States Party to consider establishing secure platforms and communication channels between them that ensure authentication and certification of requests and evidence transmitted solely in digital form, as well as mutual recognition of digital signatures, seals and stamps affixed to such requests and evidence. If necessary, such channels should be incorporated in the 24/7 contact points.
This also applies to the answers to questions 9 and 21 of this questionnaire. We keep in mind that such a mechanism should not be reserved only to emergency cases of transmission of requests and digital evidence.
11. What key information would have to be submitted in a request for international cooperation under the Convention? For example, should provisions set out the minimum information required?
A: The content of the request and information requirements depend on the kind of assistance requested by the State. For example, requirements for an extradition request differ from those for a request to expeditiously ensure security of electronically stored information or a request for mutual assistance in collecting the technical parameters of the traffic. Requirements for the content of requests for extradition and legal assistance in criminal cases are typically stipulated in the relevant international treaties, both multilateral and bilateral. However, we believe that establishing some minimum requirements for a request, considering, to the extent possible, the nature of the area of cooperation, will contribute to the efficiency of interaction between States.
We believe that the request should contain the basic information to be provided to the requested State, in particular the name of the requesting authority; a summary of the main facts, the nature of the investigation, prosecution or legal proceedings to which the request relates; electronic information covered by the request for assistance and its connection with a crime or other unlawful act; any available information that identifies the owner/user of the information or the location of the ICT device; the rationale and the timeframe for collecting information.
12. What mechanism should the Convention establish for handling mutual legal assistance or extradition in urgent circumstances? Should the International Criminal Police Organization (INTERPOL) channel be used? If so, how would urgent circumstances be defined? What kinds of request would be transmitted through the channel?
A: If a State Party considers that there is an emergency, it may apply to another State Party for mutual legal assistance as soon as possible. In such a case, the request must include, among other necessary details, a description of the facts that indicate that there is an emergency (urgent circumstances) and how the requested assistance is related to it.
The Convention should also provide a possibility for the requested State Party to accept such a request in electronic form. This may require ensuring an appropriate level of security and authentication before accepting the request.
In the event of an emergency (urgent circumstances), requests can be transmitted through Interpol channels or the 24/7 network.
Grounds for refusal
13. Should the Convention specify grounds for refusing an extradition request? If so, which grounds should be included for refusing the extradition?
A: Yes, it should. The grounds for refusing an extradition should be the same as those provided for in the existing international treaties governing extradition, in particular UNTOC, UNCAC, and the European Convention on Extradition. The grounds on which an extradition may be refused should be as follows:
if the offense for which an extradition is requested is not an offense under the domestic law of the requested State;
if the person whose extradition is requested is being prosecuted, subject to criminal a proceeding or sentenced by the requested State for the same offense;
if the requested State has substantial grounds for believing that the extradition request is intended to prosecute or punish a person based on race, sex, religion, nationality, ethnic origin or is politically motivated;
if the requested State considers that the extradition of the requested person would prejudice its sovereignty, security, public order or other essential interests;
if the offense for which extradition is requested is punishable by death under the law of the requesting State, unless that State furnishes assurances which the requested State finds sufficient that the requested person will not be subjected to the death penalty;
if the offense for which extradition is requested is considered under the law of the requested State to have been committed in whole or in part in its territory;
if the person whose extradition is requested is a national of the requested State.
14. Should the Convention specify grounds for refusing a mutual legal assistance request? If so, which grounds should be included for refusing mutual legal assistance?
A: In our opinion, a future Convention should describe the most significant reasons for refusing to execute a request for legal assistance in criminal matters, for example, legal assistance may be denied:
if the requested State considers that the execution of the request may harm its sovereignty, security, public order and other essential interests.
Nevertheless, we believe that the list of such reasons should be reduced to a minimum. International cooperation in matters of legal assistance should be given as many opportunities as possible, avoiding unnecessary and unreasonable restrictions on such cooperation.
15. Should the Convention simply defer grounds for refusing an extradition or mutual legal assistance request to the domestic legislation of the State Party and applicable treaties?
A: It is possible to deny an extradition based on the national legislation, but in this case it will be necessary to request information about the relevant laws of the requested State before submitting an extradition request. We believe that such an approach is not productive for cooperation on extradition issues, unlike the situation when the reasons for refusal are already stipulated in the Convention.
It is also possible to use references to extradition treaties to which the requesting and the requested States are parties.
The grounds for refusing legal assistance are discussed above in the answer to question 14.
16. Should the Convention include a clause stating that the offences established in accordance with the Convention shall not be considered a political offence, and that international cooperation shall not be rejected solely on those grounds?
A: Yes, such provision should be included.
Other questions
17. Should the Convention include specific provisions on mutual legal assistance regarding provisional measures? If so, what specific provisions should be included? For example, should they include the expedited preservation of stored computer data and electronic information, and expedited disclosure of preserved traffic data?
A: Yes, it should. The Convention should include the following specific provisions regarding mutual assistance in application of provisional measures:
operational security of information in electronic form;
prompt provision of saved technical parameters of the traffic;
mutual assistance in collecting technical parameters of the traffic in real time;
mutual assistance in collecting information in electronic form.
18. Should the Convention include specific provisions on investigative powers? If so, what specific provisions should be included? For example, should they include access to stored computer data and electronic information, real-time collection of traffic data and interception of content data?
A: Each state should determine the mandate of the investigating authorities in accordance with national legislation. Nevertheless, it would be reasonable to define main elements of such mandates in the Convention.
19. Should the Convention include a provision on transborder access to [data] [information]? It would allow for a State to access stored [computer data] [electronic information] without the authorization of the State Party where such [data are] [information is] geographically located, if the [data are] [information is] publicly available, or if access to the [data] [information] is through a computer system located in its territory and that State obtains the consent of the person who has lawful authority to disclose the [data] [information] through that computer system.
A: No. The Convention should not include provisions on cross-border access to the data/information. Cross-border access to data on the territory of a state without appropriate consent of such state would mean an infringement on the sovereignty of this state.
Rather than a provision on cross-border access to data/information, the Convention should include a provision on cross-border transfer/exchange of data/information. We presume that such an exchange should be carried out exclusively through the contact points/authorized national public authorities designated by the participating States for this purpose taking into account the requirements of the national legislation of the participating States regarding the protection of information.
20. Should the Convention include provisions to facilitate the return of assets? How should the Convention address international cooperation for purposes of seizure and confiscation, and return and disposal, of confiscated assets, in particular as regards the difference between the approaches of the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption?
A: Yes. The provisions regarding return and management of stolen assets should stipulate that in accordance with the Convention a State Party that has confiscated the assets has the right to manage those assets, including their return to their previous rightful owners. A State Party should take, including at the legislative level, appropriate measures granting the competent authorities with a mandate to return confiscated assets when those competent authorities act at the request of another State Party to the Convention. In case of public assets, a relevant return procedure should be in place. The Convention should also provide for the payment of compensation or damages to the victims of the crime, deductions of reasonable expenses incurred in recovering assets. The Russian draft Convention has a separate section on asset recovery measures detailing the regulations pertaining to this issue.
21. Should the Convention include a provision for States Party to establish a 24/7 network of points of contact? What would be the purpose of such a network and its relationship with networks established under existing international instruments and frameworks?
A: The Convention should provide for the establishment and operation of a 24/7 contact point that will provide prompt assistance in investigating, examining and prosecuting crimes covered by the Convention as well as in collecting electronic evidence related to these crimes. Such assistance should include the following:
- providing technical advisory assistance;
- preserving data for the purposes of collecting evidence and subsequently providing information (in accordance with the provisions of this Convention, treaties on legal assistance, and domestic legislation).
It is also possible to designate a 24/7 contact point among the already existing national points of contact.
Such a point of contact should operate within the competent authorities responsible for combating these types of crimes.
22. Should the Convention include a specific provision on international cooperation for carrying out electronic surveillance and other types of covert special investigative techniques, as part of cross-border [cybercrime] [criminal uses of information and communications technologies] investigations?
A: The Convention should include a stand-alone article on international cooperation in carrying out, pursuant to requests of legal or law enforcement assistance, electronic surveillance, online undercover investigations, extended searches and, more broadly, other types of online covert SITs. This article should establish a well-defined, self-sufficient regime for requesting and rendering such kind of inter-State assistance, rather than being limited to general non-self-executing provisions referencing other international arrangements, as is the case of UNCAC and UNTOC that are not adequate for countering the highly secretive and anonymized criminal activities in cyberspace. The relevant text could be modeled on the draft Convention’s articles related to the real-time interception of traffic or content data as well as, mutatis mutandis, secs. 27(7), 34 of the UNODC 2007 Model Law on Mutual Assistance in Criminal Matters as amended in 2022.
23. Should the Convention include a provision permitting the organization of hearings held by video or telephone conference for the taking of evidence, and enabling such hearings to be conducted through the use of the requesting State’s diplomatic missions and consular posts with respect to their own nationals on a voluntary basis, as part of consular functions?
A: Yes, it should. The Convention should include an article on the use of videoconferencing or conference call systems to conduct interrogations and other legal proceedings.
This article should provide that the competent authorities of the States Party to the Convention may, by mutual agreement, provide legal assistance through the use of videoconferencing or conference call systems in accordance with the law of the requested State. However, it should also be provided that, if the requested State does not have access to technical means for conducting videoconferencing, such facilities may be provided by the requesting State by mutual agreement.
The article on the powers of diplomatic missions and consulates should contain provisions that give the States Party to the Convention the right to serve documents on their own citizens through their diplomatic missions and consulates. They also have the right, on behalf of their competent authorities, to interrogate their own citizens through their diplomatic missions and consulates, including using video conferencing or conference call systems.
24. Can non-content data/meta data be shared under theConvention in a faster manner without mutual legal assistance treaties so as to help law enforcement agencies start the investigation and identify the accused? What kind of safeguards could we envisage for this kind of cooperation?
A: It depends on what type of non-content data is at stake. Basic subscriber information may be shared both within and without international MLA, by employing law enforcement (police-to-police) assistance, since BSI is generally not subject to mandatory judicial authorization. On the other hand, traffic data that touch upon privacy-related issues normally require a court warrant as a human rights safeguard, and therefore the international legal (judicial) assistance procedures are to be strictly adhered to for traffic data to get collected and transferred abroad.
