2023-

2024

Introduction to Technology Law

RGBIR50110.2023-2024
WEEK 3
 WEEK 3 – Criminal activity in the Digital Society

Convention on Cybercrime

Chapter I – Use of terms

Article 1 – Definitions
For the purposes of this Convention:
a "computer system" means any device or a group of interconnected or related devices, one or more of
which, pursuant to a program, performs automatic processing of data;
b "computer data" means any representation of facts, information or concepts in a form suitable for
processing in a computer system, including a program suitable to cause a computer system to perform a
function;
c "service provider" means:
i any public or private entity that provides to users of its service the ability tocommunicate by means
of a computer system, and
ii any other entity that processes or stores computer data on behalf of suchcommunication service
or users of such service.
d "traffic data" means any computer data relating to a communication by means of a computer system,
generated by a computer system that formed a part in the chain of communication, indicating the
communication’s origin, destination, route, time, date, size,duration, or type of underlying service.

Chapter II – Measures to be taken at the national level

Section 1 – Substantive criminal law
Title 1 – Offences against the confidentiality, integrity and availabilityof computer data and systems

Article 2 – Illegal access

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, the access to the whole or any part of a
computer system without right. A Party may require that the offence be committed by infringing security
measures, with the intent of obtaining computer data or other dishonest intent, or in relation to a computer
system that is connected to another computer system.

Article 3 – Illegal interception

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, the interception without right, made by
technical means, of non-public transmissions of computer data to, fromor within a computer system,
including electromagnetic emissions from a computer system carrying such computer data. A Party may
require that the offence be committed with dishonest intent, or in relation to a computer system that is
connected to another computer system.

Article 4 – Data interference

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, the damaging, deletion,
deterioration, alteration or suppression of computer data without right.
2 A Party may reserve the right to require that the conduct described in paragraph 1 result in serious
harm.

1
Article 5 – System interference
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, the serious hindering without right of the
functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or
suppressing computer data.

Article 6 – Misuse of devices

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:
a the production, sale, procurement for use, import, distribution or otherwise making available of:
i a device, including a computer program, designed or adapted primarily for the purpose of
committing any of the offences established in accordance with Articles 2 through 5;
ii a computer password, access code, or similar data by which the whole or any partof a computer
system is capable of being accessed,
with intent that it be used for the purpose of committing any of the offences established inArticles 2
through 5; and
b the possession of an item referred to in paragraphs a.i or ii above, with intent that it be used for the
purpose of committing any of the offences established in Articles 2 through 5. A Party may require by
law that a number of such items be possessed before criminal liability attaches.

2 This article shall not be interpreted as imposing criminal liability where the production, sale,
procurement for use, import, distribution or otherwise making available or possession referred to in
paragraph 1 of this article is not for the purpose of committing an offence established in accordance with
Articles 2 through 5 of this Convention, such as for the authorised testing or protection of a computer
system.

3 Each Party may reserve the right not to apply paragraph 1 of this article, provided that the
reservation does not concern the sale, distribution or otherwise making available of the items referred to
in paragraph 1 a.ii of this article.

Title 2 – Computer-related offences

Article 7 – Computer-related forgery

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 input, alteration,
deletion, or suppression of computer data, resulting in inauthentic data with the intent that it be
considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is
directly readable and intelligible. A Party may require an intent to defraud, or similar dishonest intent,
before criminal liability attaches.

Article 8 – Computer-related fraud

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 causing of a loss of
property to another person by:
a any input, alteration, deletion or suppression of computer data,
b any interference with the functioning of a computer system,
with fraudulent or dishonest intent of procuring, without right, an economic benefit for oneself or for
another person.

2
Title 3 – Content-related offences

Article 9 – Offences related to child pornography

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, the following
conduct:
a producing child pornography for the purpose of its distribution through a computersystem;
b offering or making available child pornography through a computer system;
c distributing or transmitting child pornography through a computer system;
d procuring child pornography through a computer system for oneself or for anotherperson;
e possessing child pornography in a computer system or on a computer-data storagemedium.

2 For the purpose of paragraph 1 above, the term "child pornography" shall include pornographic
material that visually depicts:
a a minor engaged in sexually explicit conduct;
b a person appearing to be a minor engaged in sexually explicit conduct;
c realistic images representing a minor engaged in sexually explicit conduct.

3 For the purpose of paragraph 2 above, the term "minor" shall include all persons under 18 years
of age. A Party may, however, require a lower age-limit, which shall be not less than 16 years.

4 Each Party may reserve the right not to apply, in whole or in part, paragraphs 1, sub- paragraphs d
and e, and 2, sub-paragraphs b and c.

Title 4 – Offences related to infringements of copyright and related rights

Article 10 – Offences related to infringements of copyright and related rights

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law the infringement of copyright, as defined under thelaw of that
Party, pursuant to the obligations it has undertaken under the Paris Act of 24 July 1971 revising the Bern
Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of
Intellectual Property Rights and the WIPO Copyright Treaty, with the exception of any moral rights
conferred by such conventions, where such actsare committed wilfully, on a commercial scale and by
means of a computer system.

2 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law the infringement of related rights, as definedunder the law of
that Party, pursuant to the obligations it has undertaken under the International Convention for the
Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention),
the Agreement on Trade-Related Aspects ofIntellectual Property Rights and the WIPO Performances and
Phonograms Treaty, with the exception of any moral rights conferred by such conventions, where such
acts are committed wilfully, on a commercial scale and by means of a computer system.

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

3
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 shalltake
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 thecommission 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

4
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 thisConvention;
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 20and 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 anothercomputer
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 providedfor 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 theprinciple 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 administrationof
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 enableits
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

5
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 empowerits
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 empowerits
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 storedin its territory.

6
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 empowerits
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 storagemedium;
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 empowerits
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 empowerits
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 thatParty; 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 territorytransmitted by means of a computer
system.

2 Where a Party, due to the established principles of its domestic legal system, cannot adoptthe
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 oftechnical 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:

7
i to collect or record through the application of technical means on the territory of thatParty, 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 ofa computer system.

2 Where a Party, due to the established principles of its domestic legal system, cannot adoptthe
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 dataon 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:
a in its territory; or
b on board a ship flying the flag of that Party; or
c on board an aircraft registered under the laws of that Party; or
d by one of its nationals, if the offence is punishable under criminal law where it was committed or if
the offence is committed outside the territorial jurisdiction of any State.

2 Each Party may reserve the right not to apply or to apply only in specific cases or conditions the
jurisdiction rules laid down in paragraphs 1.b through 1.d of this article or any part thereof.

3 Each Party shall adopt such measures as may be necessary to establish jurisdiction over the offences
referred to in Article 24, paragraph 1, of this Convention, in cases where an alleged offender is present in
its territory and it does not extradite him or her to another Party, solely on the basis of his or her
nationality, after a request for extradition.

4 This Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with
its domestic law.

5 When more than one Party claims jurisdiction over an alleged offence established in accordance with
this Convention, the Parties involved shall, where appropriate, consult with a view to determining the
most appropriate jurisdiction for prosecution.

Chapter III – International co-operation

Section 1 – General principles
Title 1 – General principles relating to international co-operation

Article 23 – General principles relating to international co-operation

The Parties shall co-operate with each other, in accordance with the provisions of this chapter, and
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, to the

8
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.

Title 2 – Principles relating to extradition

Article 24 – Extradition
1 a This article applies to extradition between Parties for the criminal offences established in
accordance with Articles 2 through 11 of this Convention, provided that they are punishable under the
laws of both Parties concerned by deprivation of liberty for a maximum period of at least one year, or by a
more severe penalty.
b Where a different minimum penalty is to be applied under an arrangement agreed on the basis
of uniform or reciprocal legislation or an extradition treaty, including the European Convention on
Extradition (ETS No. 24), applicable between two or more parties, the minimum penalty provided for
under such arrangement or treaty shall apply.

2 The criminal offences described in paragraph 1 of this article shall be deemed to be included as
extraditable offences in any extradition treaty existing between or among the Parties. The Parties
undertake to include such offences as extraditable offences in any extradition treaty tobe concluded
between or among them.

3 If a Party that makes extradition conditional on the existence of a treaty receives a request for
extradition from another Party with which it does not have an extradition treaty, it may consider this
Convention as the legal basis for extradition with respect to any criminal offence referred to in paragraph
1 of this article.

4 Parties that do not make extradition conditional on the existence of a treaty shall recognise the
criminal offences referred to in paragraph 1 of this article as extraditable offences between themselves.

5 Extradition shall be subject to the conditions provided for by the law of the requested Party or by
applicable extradition treaties, including the grounds on which the requested Party may refuse extradition.

6 If extradition for a criminal offence referred to in paragraph 1 of this article is refused solely onthe
basis of the nationality of the person sought, or because the requested Party deems that ithas jurisdiction
over the offence, the requested Party shall submit the case at the request of the requesting Party to its
competent authorities for the purpose of prosecution and shall report the final outcome to the requesting
Party in due course. Those authorities shall take their decision and conduct their investigations and
proceedings in the same manner as for any other offence of a comparable nature under the law of that
Party.

7 a Each Party shall, at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, communicate to the Secretary General of the Council of Europe the
name and address of each authority responsible for making or receiving requests for extradition or
provisional arrest in the absence of a treaty.
b The Secretary General of the Council of Europe shall set up and keep updated a register of
authorities so designated by the Parties. Each Party shall ensure that the details held on the register are
correct at all times.

Title 3 – General principles relating to mutual assistance

9
Article 25 – General principles relating to mutual assistance
1 The Parties shall afford one another mutual assistance to the widest extent possible for the purpose 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.

2 Each Party shall also adopt such legislative and other measures as may be necessary to carry out the
obligations set forth in Articles 27 through 35.

3 Each Party may, in urgent circumstances, make requests for mutual assistance or communications
related thereto by expedited means of communication, including fax or e- mail, to the extent that such
means provide appropriate levels of security and authentication (including the use of encryption, where
necessary), with formal confirmation to follow, where required by the requested Party. The requested
Party shall accept and respond to the requestby any such expedited means of communication.

4 Except as otherwise specifically provided in articles in this chapter, mutual assistance shall besubject
to the conditions provided for by the law of the requested Party or by applicable mutual assistance
treaties, including the grounds on which the requested Party may refuse co-operation. The requested Party
shall not exercise the right to refuse mutual assistance in relation to the offences referred to in Articles 2
through 11 solely on the ground that the request concerns an offence which it considers a fiscal offence.

5 Where, in accordance with the provisions of this chapter, the requested Party is permitted to make
mutual assistance conditional upon the existence of dual criminality, that condition shall be deemed
fulfilled, irrespective of whether its laws place the offence within the same category of offence or
denominate the offence by the same terminology as the requesting Party, if the conduct underlying the
offence for which assistance is sought is a criminal offence under its laws.

Article 26 – Spontaneous information

1 A Party may, within the limits of its domestic law and without prior request, forward to another Party
information obtained within the framework of its own investigations when it considers that the disclosure
of such information might assist the receiving Party in initiating or carrying out investigations or
proceedings concerning criminal offences established in accordance withthis Convention or might lead to
a request for co-operation by that Party under this chapter.

2 Prior to providing such information, the providing Party may request that it be kept confidential or
only used subject to conditions. If the receiving Party cannot comply with such request, it shall notify the
providing Party, which shall then determine whether the information should nevertheless be provided. If
the receiving Party accepts the information subject to the conditions, it shall be bound by them.

Title 4 – Procedures pertaining to mutual assistance requestsin the absence of applicable international
agreements

Article 27 – Procedures pertaining to mutual assistance requests in the absence ofapplicable

international agreements
1 Where there is no mutual assistance treaty or arrangement on the basis of uniform orreciprocal
legislation in force between the requesting and requested Parties, the provisions of paragraphs 2 through 9
of this article shall apply. The provisions of this article shall not apply where such treaty, arrangement or
legislation exists, unless the Parties concerned agree to apply any or all of the remainder of this article in
lieu thereof.

2 a Each Party shall designate a central authority or authorities responsible for sending and

10
answering requests for mutual assistance, the execution of such requests or their transmission to the
authorities competent for their execution.
b The central authorities shall communicate directly with each other;
c Each Party shall, at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, communicate to the Secretary General of the Council of Europe the
names and addresses of the authorities designated in pursuanceof this paragraph;
d The Secretary General of the Council of Europe shall set up and keep updated a register of central
authorities designated by the Parties. Each Party shall ensure that the details held on the register are
correct at all times.

3 Mutual assistance requests under this article shall be executed in accordance with the procedures
specified by the requesting Party, except where incompatible with the law of the requested Party.

4 The requested Party may, in addition to the grounds for refusal established in Article 25, paragraph
4, refuse assistance if:
a the request concerns an offence which the requested Party considers a political offence or an offence
connected with a political offence, or
b it considers that execution of the request is likely to prejudice its sovereignty, security,
ordre public or other essential interests.

5 The requested Party may postpone action on a request if such action would prejudice criminal
investigations or proceedings conducted by its authorities.

6 Before refusing or postponing assistance, the requested Party shall, where appropriate after having
consulted with the requesting Party, consider whether the request may be granted partially or subject to
such conditions as it deems necessary.

7 The requested Party shall promptly inform the requesting Party of the outcome of the execution of a
request for assistance. Reasons shall be given for any refusal or postponement of the request. The
requested Party shall also inform the requesting Party of any reasons that render impossible the execution
of the request or are likely to delay it significantly.

8 The requesting Party may request that the requested Party keep confidential the fact of any request
made under this chapter as well as its subject, except to the extent necessary for its execution. If the
requested Party cannot comply with the request for confidentiality, it shall promptly inform the requesting
Party, which shall then determine whether the request should nevertheless be executed.

9 a In the event of urgency, requests for mutual assistance or communications related thereto may
be sent directly by judicial authorities of the requesting Party to suchauthorities of the requested Party. In
any such cases, a copy shall be sent at the same time to the central authority of the requested Party
through the central authority of the requesting Party.
b Any request or communication under this paragraph may be made through the International Criminal
Police Organisation (Interpol).
c Where a request is made pursuant to sub-paragraph a. of this article and the authority is not
competent to deal with the request, it shall refer the request to the competent national authority and
inform directly the requesting Party that it has done so.
d Requests or communications made under this paragraph that do not involve coercive action may be
directly transmitted by the competent authorities of the requesting Party to the competent authorities of
the requested Party.
e Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance,
approval or accession, inform the Secretary General of the Council ofEurope that, for reasons of

11
efficiency, requests made under this paragraph are to be addressed to its central authority.

Article 28 – Confidentiality and limitation on use

1 When there is no mutual assistance treaty or arrangement on the basis of uniform or reciprocal
legislation in force between the requesting and the requested Parties, the provisions of this article shall
apply. The provisions of this article shall not apply where such treaty, arrangement or legislation exists,
unless the Parties concerned agree to apply any orall of the remainder of this article in lieu thereof.

2 The requested Party may make the supply of information or material in response to a request
dependent on the condition that it is:
a kept confidential where the request for mutual legal assistance could not be compliedwith in the
absence of such condition, or
b not used for investigations or proceedings other than those stated in the request.

3 If the requesting Party cannot comply with a condition referred to in paragraph 2, it shall promptly
inform the other Party, which shall then determine whether the information should nevertheless be
provided. When the requesting Party accepts the condition, it shall be bound by it.

4 Any Party that supplies information or material subject to a condition referred to in paragraph 2
may require the other Party to explain, in relation to that condition, the use made of such information or
material.

Section 2 – Specific provisions

Title 1 – Mutual assistance regarding provisional measures

Article 29 – Expedited preservation of stored computer data

1 A Party may request another Party to order or otherwise obtain the expeditious preservation of data
stored by means of a computer system, located within the territory of that other Party and in respect of
which the requesting Party intends to submit a request for mutual assistancefor the search or similar
access, seizure or similar securing, or disclosure of the data.

2 A request for preservation made under paragraph 1 shall specify:

a the authority seeking the preservation;
b the offence that is the subject of a criminal investigation or proceedings and a briefsummary
of the related facts;
c the stored computer data to be preserved and its relationship to the offence;
d any available information identifying the custodian of the stored computer data or thelocation of the
computer system;
e the necessity of the preservation; and
f that the Party intends to submit a request for mutual assistance for the search or similaraccess,
seizure or similar securing, or disclosure of the stored computer data.

3 Upon receiving the request from another Party, the requested Party shall take all appropriate
measures to preserve expeditiously the specified data in accordance with its domestic law.For the
purposes of responding to a request, dual criminality shall not be required as a condition to providing such
preservation.

4 A Party that requires dual criminality as a condition for responding to a request for mutual assistance
for the search or similar access, seizure or similar securing, or disclosure of storeddata may, in respect of
offences other than those established in accordance with Articles 2 through 11 of this Convention, reserve

12
the right to refuse the request for preservation under this article in cases where it has reasons to believe
that at the time of disclosure the condition of dual criminality cannot be fulfilled.

5 In addition, a request for preservation may only be refused if:

a the request concerns an offence which the requested Party considers a political offenceor an offence
connected with a political offence, or
b the requested Party considers that execution of the request is likely to prejudice itssovereignty,
security, ordre public or other essential interests.
6 Where the requested Party believes that preservation will not ensure the future availability of the data
or will threaten the confidentiality of or otherwise prejudice the requesting Party’s investigation, it shall
promptly so inform the requesting Party, which shall then determine whether the request should
nevertheless be executed.

7 Any preservation effected in response to the request referred to in paragraph 1 shall be for a period
not less than sixty days, in order to enable the requesting Party to submit a request for the search or
similar access, seizure or similar securing, or disclosure of the data. Following the receipt of such a
request, the data shall continue to be preserved pending a decision on that request.

Article 30 – Expedited disclosure of preserved traffic data

1 Where, in the course of the execution of a request made pursuant to Article 29 to preserve traffic data
concerning a specific communication, the requested Party discovers that a service provider in another
State was involved in the transmission of the communication, the requested Party shall expeditiously
disclose to the requesting Party a sufficient amount of traffic data to identify that service provider and the
path through which the communication wastransmitted.

2 Disclosure of traffic data under paragraph 1 may only be withheld if:

a the request concerns an offence which the requested Party considers a political offence or an offence
connected with a political offence; or
b the requested Party considers that execution of the request is likely to prejudice its sovereignty,
security, ordre public or other essential interests.

Title 2 – Mutual assistance regarding investigative powers

Article 31 – Mutual assistance regarding accessing of stored computer data

1 A Party may request another Party to search or similarly access, seize or similarly secure, and
disclose data stored by means of a computer system located within the territory of the requested Party,
including data that has been preserved pursuant to Article 29.

2 The requested Party shall respond to the request through the application of international instruments,
arrangements and laws referred to in Article 23, and in accordance with other relevant provisions of this
chapter.

3 The request shall be responded to on an expedited basis where:

a there are grounds to believe that relevant data is particularly vulnerable to loss or modification; or
b the instruments, arrangements and laws referred to in paragraph 2 otherwise provide for expedited
co-operation.

Article 32 – Trans-border access to stored computer data with consent or wherepublicly available
A Party may, without the authorisation of another Party:
a access publicly available (open source) stored computer data, regardless of where the data is located

13
geographically; or
b access or receive, through a computer system in its territory, stored computer data located in another
Party, if the Party obtains the lawful and voluntary consent of the person who has the lawful authority to
disclose the data to the Party through that computer system.

Article 33 – Mutual assistance regarding the real-time collection of traffic data

1 The Parties shall provide mutual assistance to each other in the real-time collection of traffic data
associated with specified communications in their territory transmitted by means of a computer system.
Subject to the provisions of paragraph 2, this assistance shall be governed by the conditions and
procedures provided for under domestic law.

2 Each Party shall provide such assistance at least with respect to criminal offences for which real-time
collection of traffic data would be available in a similar domestic case.

Article 34 – Mutual assistance regarding the interception of content data

The Parties shall provide mutual assistance to each other in the real-time collection or recording of
content data of specified communications transmitted by means of a computer system to the extent
permitted under their applicable treaties and domestic laws.

Title 3 – 24/7 Network

Article 35 – 24/7 Network

1 Each Party shall designate a point of contact available on a twenty-four hour, seven-day-a- week
basis, in order to ensure the provision of immediate assistance for the purpose 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. Such assistance shall include facilitating, or, if
permitted by its domestic law and practice, directly carrying out the following measures:
a the provision of technical advice;
b the preservation of data pursuant to Articles 29 and 30;
c the collection of evidence, the provision of legal information, and locating of suspects.

2 a A Party’s point of contact shall have the capacity to carry out communications with thepoint
of contact of another Party on an expedited basis.
b If the point of contact designated by a Party is not part of that Party’s authority or authorities
responsible for international mutual assistance or extradition, the point of contact shall ensure that it is
able to co-ordinate with such authority or authorities on an expedited basis.

3 Each Party shall ensure that trained and equipped personnel are available, in order to facilitate the
operation of the network.

Chapter IV – Final provisions […]

14
CASE OF BUTURUGĂ v. ROMANIA

(Application no. 56867/15)

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1970 and resides in Tulcea.

6. She complained that she had been the victim of domestic violence. She stated that, during her marriage
to M.V., she was subjected to repeated physical violence and death threats, and that these intensified in
November 2013. During this period that she and her former husband had been discussing the possibility of
a divorce, which was ultimately pronounced on 30 January 2014.

The criminal complaint concerning the incidents of 17 and 22 December 2013

7. The applicant submitted that on 17 December 2013 M.V. had threatened to kill her, by throwing her
from a balcony in order to create the impression that she had committed suicide. She further submitted that
on 22 December 2013 M.V. struck her on the head and threatened to kill her with an axe; she had then taken
refuge in a room in their flat and called for help.

8. On 23 December 2013 the applicant obtained a forensic certificate stating that she required three to four
days of medical treatment on account of her injuries, which could have been sustained on 22 December
2013.

9. On 23 December 2013 she also filed a complaint against M.V. before the prosecutor’s office at the
Tulcea Court of First Instance (“the prosecutor’s office”). On 6 January 2014 she filed a further complaint
against M.V. and reiterated her allegations as to the violence and threats she had suffered. The applicant
alleged that the authorities tried to persuade her to withdraw her complaint on the grounds that her injuries
were not serious.

10. On an unspecified date the applicant applied to join the proceedings as a civil party and requested
compensation for the pecuniary and non-pecuniary damage she had suffered.

11. On 18 March 2014 she requested, with a view to obtaining evidence in criminal proceedings, an
electronic search of the family’s computer, alleging that M.V. had wrongfully accessed her electronic
accounts, including her Facebook account, and that he had made copies of her private conversations,
documents and photographs. By an order of 2 June 2014, the Tulcea police rejected the applicant’s request
on the grounds that the evidence liable to be gathered in this way would be unrelated to the offences of
making threats and violence of which M.V. was accused.

15
12. On 2 July 2014 the applicant added to the file at the public prosecutor’s office a copy of the judgment
of 13 March 2014 of the Tulcea Court of First Instance (“the first-instance court”), which had issued a
protection order in her favour (see paragraph 23 below).

13. On 11 September 2014 the applicant filed a new criminal complaint against M.V. for breach of the
confidentiality of correspondence.

14. The police questioned the applicant and also, as witnesses, her daughter, mother and sister-in-law. The
latter persons indicated that their relative had spoken to them about the violence to which she had been
subjected.

15. In the applicant’s submission, her mother had told the police that she had given her daughter
accommodation following the latter’s departure, driven by fear, from the marital home, and that she had
seen the marks of violence and excoriations caused by her former son-in-law. However, still in the
applicant’s submission, the police officers did not record her mother’s statement in its entirety because, in
their view, it was not relevant. Furthermore, again according to the applicant, the witnesses had been heard
unlawfully, without being sworn in, and their statements had not been recorded in full. The Government
challenged the applicant’s allegations, relying on the records of the interviews with the witnesses, which
contained their signatures.

16. On 25 November 2014 the police questioned M.V. as a suspect.

17. By a decision of 17 February 2015, the public prosecutor discontinued the case. The order to
discontinue the case was based on Article 193 §§ 1 and 2, Article 206 § 1 and Article 302 § 2 of the new
Criminal Code, penalising assault and other violence, threats, and breach of the secrecy of correspondence
respectively (see paragraph 32 below). In its order, the prosecutor’s office stated that the applicant had
indeed been threatened with death by her former husband on 17 December 2013, but it considered that his
conduct had not been serious enough to be classified as an offence. It therefore decided to impose an
administrative fine of 1,000 Romanian lei (RON, approximately 250 euros (EUR)) on M.V. In addition, the
prosecutor’s office considered that there was no evidence of the acts of violence allegedly committed on
22 December 2013. Thus, according to the public prosecutor’s office, the forensic medical certificate issued
on the following day (see paragraph 8 above) proved that the applicant had been subjected to violence but
did not establish with certainty that M.V. was the perpetrator. As regards the complaint concerning the
breach of the secrecy of correspondence, the prosecutor’s office dismissed it as being out of time.

18. The applicant challenged the order of 17 February 2015 before the public prosecutor’s office. By an
order of 9 March 2015, the head prosecutor at the public prosecutor’s office dismissed her challenge.

19. The applicant then challenged the prosecutor’s orders before the district court, complaining, inter alia,
that insufficient evidence had been gathered. She also argued that the offence of a breach of the secrecy of

16
correspondence fell to be examined ex officio, even in the absence of a formal complaint by the injured
party.

20. The applicant alleged that she had asked to consult the file at the prosecutor’s office and had in the
process discovered that some of the evidence was missing, in particular her requests to the prosecutor’s
office and several police reports. The Government disputed these allegations, referring to the file from the
public prosecutor’s office, a copy of which had been submitted to the Court. This file included copies of
the criminal complaints lodged by the applicant on 23 December 2013 and on 6 January and 11 September
2014 (see paragraphs 9 and 13 above). The file also included copies of the statements made by the applicant,
M.V. and the witnesses (the applicant’s daughter, sister-in-law and mother). These statements had been
signed by their respective authors. The file also contained a number of requests made by the applicant to
the investigating authorities, as well as police reports drawn up during the proceedings.

21. By a final decision of 25 May 2015, the first-instance court rejected the applicant’s challenge. The
court upheld the prosecutor’s findings that the threats made to the applicant by M.V. did not present the
degree of social danger necessary to be classified as offences and that there was no direct evidence that the
injuries sustained by the applicant had been inflicted by M.V. With regard to the applicant’s complaint
about the alleged breach of the secrecy of correspondence, the court found that it was irrelevant to the
subject matter of the case and that data published on social networks were public. The court also rejected
the applicant’s arguments concerning irregularities in the taking of witness statements (see paragraph 15
above).

The application for a protection order

22. On an unspecified date the applicant applied to the trial court for a protection order (ordin de protecţie)
against M.V., on the basis of Law no. 217/2003 on preventing and combating domestic violence (“Law no.
217/2003”; see paragraph 33 below).

23. By an enforceable judgment of 13 March 2014, the first-instance court, relying on the statement by the
applicant’s mother, who had been questioned as a witness, and on the forensic certificate of 23 December
2013 (see paragraph 8 above), found that M.V. had assaulted and threatened his former wife. It accordingly
granted the applicant’s request, and issued a six-month protection order, worded as follows:

“For the duration of the protection order, [the court] shall impose the following measures on the defendant:

- eviction from the building in Tulcea...;

- an obligation to keep at a minimum distance of 200 metres from the requesting party;
- a prohibition on travelling to the address of the requesting party’s parents in Tulcea ...;
- a prohibition on making any contact by telephone or written correspondence, or in any other manner, with
the requesting party.”

17
24. On 17 March 2014 the police informed M.V. of the protection order against him. The Government
submitted copies of two reports drawn up by the Tulcea police for this purpose, which also included the
applicant’s signature.

25. In the meantime, M.V. had lodged an appeal against the above judgment. By a judgment of 18
September 2014, the Tulcea County Court dismissed his appeal and confirmed the facts established by the
first-instance court.

26. The applicant alleged that there had been a delay by the police in enforcing the protection order and
that M.V. had failed to comply with it. In this regard, she states that he approached the block of flats in
which her parents lived and that she received threats from him through one of his family members. She
added that her former husband had contacted her through a mediator, seeking to persuade her to withdraw
her criminal complaints in exchange for a more favourable division of the joint property, while
simultaneously threatening to file a criminal complaint against her for defamation. She also submitted that
M.V. had been in contact with her mother and daughter, and that she had informed the police about this on
several occasions, to no avail.

27. The Government submitted that they had not found in the domestic authorities’ case file any request
made by the applicant for protection during the period in which the protection order was in force, that is,
until 13 September 2014 (see paragraph 23 above), and that the applicant did not apply for renewal of the
order after 13 September 2014.

The incident of 29 October 2015

28. The applicant also referred to an incident on 29 October 2015, when M.V. allegedly chased her down
a street. She stated that on 3 November 2015 she applied to the Tulcea police for recordings from the
surveillance cameras installed in the vicinity of the public area where she had allegedly been pursued by
M.V.

29. The Government submitted that criminal proceedings for harassment were pending before the
prosecutor’s office when observations were exchanged in the present case (27 July 2017). In the course of
those proceedings, the police interviewed the applicant and her former husband and obtained recordings
from the surveillance cameras in the vicinity of the area indicated by the applicant. An individual who was
accompanying the applicant at the time could not be questioned as a witness because he had left the country
in the meantime.

30. The parties have not informed the Court of the outcome of those proceedings.

[…]

18
40. The Council of Europe’s Working Group on cyberbullying and other forms of online violence,
especially against women and children, proposed the following definition in a report prepared in 2018[3]
(Mapping study on cyber violence):

“Cyberviolence is the use of computer systems to cause, facilitate, or threaten violence against individuals
that results in, or is likely to result in, physical, sexual, psychological or economic harm or suffering and
may include the exploitation of the individual’s circumstances, characteristics or vulnerabilities.”

This study specifies that certain forms of cybercrime, such as illegal access to intimate personal data or the
destruction of data may also be considered acts of cyberviolence. It also includes a list of actions falling
within the definition of cyberviolence against women: ICT-related violations of privacy, ICT-related hate
crimes, cyberstalking, direct online threats of physical violence, cybercrime and sexual exploitation, and
online sexual abuse of children. ICT-related violations of privacy include computer intrusions and the
taking, sharing, manipulation of data or images, including intimate data. Cyberstalking is stalking in an
electronic format. It encompasses a pattern of repeated, intrusive behaviours – such as following, harassing,
and threatening, and causes fear in victims. The study also refers to research showing that cyberstalking by
intimate partners often occurs in the context of domestic violence and is a form of coercive control.

The data available in the European Union

41. An EU-wide survey carried out between March and September 2012 by the European Union Agency
for Fundamental Rights indicated that 30% of Romanian women stated that they had been victims of
physical and/or sexual violence by a partner or another person, and 39% of Romanian women stated that
they had experienced some form of psychological violence by a partner. According to the conclusions of
this survey, published in March 2014, violence against women in the European Union is mainly perpetrated
by a current or previous partner. 22% of women indicated that they had experienced physical or sexual
violence within their intimate-partner relationship. 33% of women reported such violence from a life partner
or other person[4]. According to the same report, 5% of women have already experienced cyberharassment
at least once since the age of 15[5].

42. In 2017 the European Institute for Gender Equality issued a report on “Cyber violence against women
and girls”[6]. According to this report, although statistical data is still lacking, the research that is available
nonetheless suggests that women are disproportionately the targets of certain forms of cyberviolence
compared to men. The report cites experts who argue that it is more appropriate to consider cyberviolence
as a continuum of offline violence. The police tend to make a false dichotomy between online and offline
violence against women and girls, constructing victims’ experiences as “incidents” rather than patterns of
behaviour over time. In addition, the report contains the following passages:

“There are various forms of cyber VAWG, including, but not limited to, cyber stalking, non-consensual
pornography (or ‘revenge porn’), gender-based slurs and harassment, ‘slut-shaming’, unsolicited
pornography, ‘sextortion’, rape and death threats, ‘doxing’, and electronically enabled trafficking.

19
Cyber stalking is stalking by means of email, text (or online) messages or the internet. Stalking involves
repeated incidents, which may or may not individually be innocuous acts, but combined undermine the
victim’s sense of safety and cause distress, fear or alarm.

As with intimate partner violence (IPV) experienced offline, cyber VAW can manifest as various forms of
violence, including sexual, psychological and, as growing trends would indicate, economic, whereby the
victim’s current or future employment status is compromised by information released online. The potential
for violence in the cyber-sphere to manifest psychically should also not be discounted...”
[…]
THE LAW

ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION

43. The applicant complains of the ineffectiveness of the criminal investigation into the acts of marital
violence of which she claimed to be the victim. She complains that her personal safety was not adequately
secured. She also criticises the authorities’ refusal to examine her complaint alleging a breach of her
correspondence by her former husband. She relies on Articles 5, 6 and 8 of the Convention.

Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others.”

Merits
[…]
The Court’s assessment
(a) General principles

60. The Court reiterates that the obligation on the High Contracting Parties under Article 1 of the
Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the
Convention, taken together with Article 3, requires States to take measures designed to ensure that
individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or
punishment, even administered by private individuals. Children and other vulnerable individuals – into
which category fall victims of domestic violence – in particular are entitled to State protection, in the form

20
of effective deterrence, against such serious breaches of personal integrity (see Opuz v. Turkey, no.
33401/02, § 159, ECHR 2009, and Bălşan, cited above, § 57). Those positive obligations, which often
overlap, consist of: (a) the obligation to take reasonable measures designed to prevent ill-treatment of which
the authorities knew or ought to have known; and (b) the (procedural) obligation to conduct effective official
investigation where an individual raises an arguable claim of ill-treatment. (see Bălşan, cited above, § 57).

61. For a positive obligation to arise, it must be established that the authorities knew or ought to have
known at the relevant time of the existence of a real and immediate risk of ill-treatment of an identified
individual from the criminal acts of a third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to avoid that risk (see Đorđević v.
Croatia, no. 41526/10, § 139, ECHR 2012). In addition, the Court has held that States have a positive
obligation to establish and apply effectively a system punishing all forms of domestic violence and to
provide sufficient safeguards for the victims (see Opuz, cited above, § 145, and Bălşan, cited above, § 57
in fine).

62. It also reiterates that while the essential object of Article 8 of the Convention is to protect individuals
against arbitrary interference by public authorities, it may also impose on the State certain positive
obligations to ensure effective respect for the rights protected by Article 8 (see Bărbulescu v. Romania
[GC], no. 61496/08, § 108 in fine, 5 September 2017 (extracts)). The choice of the means calculated to
secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in
principle a matter that falls within the Contracting States’ margin of appreciation. There are different ways
of ensuring respect for private life, and the nature of the State’s obligation will depend on the particular
aspect of private life that is at issue (see Söderman v. Sweden [GC], no. 5786/08, § 79, ECHR 2013, with
further references).

(b) Application of the general principles to the present case

63. Turning to the facts of the present case, the Court notes that the Government do not expressly dispute
the applicability of Article 3 of the Convention (see paragraph 57 above). It notes that it is also undisputed
by the Government that the applicant’s right to respect for her private life and correspondence, as
guaranteed by Article 8 of the Convention, is in issue. In this connection, the Government’s arguments
focus rather on the submission that the national authorities complied with their positive obligations under
the Convention, by making available to the applicant remedies enabling her to have her complaints
examined and to award her compensation where appropriate (see paragraphs 49 and 59 above).

64. The Court further notes that the applicant complains of several shortcomings in the protection system
for the victims of domestic violence, which it will examine below.

(i) The investigation into the ill-treatment

21
65. As it has already held in the Bălşan judgment (cited above, § 63), the Court notes that in the present
case the applicant had available to her a regulatory framework, based in particular on the provisions of the
Criminal Code, which punished domestic violence very severely (see paragraph 32 above), and of Law no.
217/2003 (see paragraph 33 above), so as to complain about the violence of which she claimed to be a
victim and to seek the authorities’ protection. The Court will now examine whether the impugned
regulations and practices, and in particular the domestic authorities’ compliance with the relevant
procedural rules, as well as the manner in which the criminal-law mechanisms were implemented in the
instant case, were defective to the point of constituting a violation of the respondent State’s positive
obligations under Article 3 of the Convention (see Valiulienė v. Lithuania, no. 33234/07, § 79, 26 March
2013).

66. The Court notes that the applicant contacted the authorities on 23 December 2013 and 6 January 2014
to lodge complaints about her former husband’s violent behaviour (see paragraph 9 above). Submitting a
forensic medical report (see paragraph 8 above), she complained, in particular, about the threats and assaults
allegedly inflicted by her former husband. However, the Court notes that the authorities did not address the
facts of the present case from the perspective of marital violence. Thus, the Court notes that the decision
by the prosecutor’s office on 17 February 2015 to discontinue the proceedings was based on the articles of
the new Criminal Code which punish violence between individuals, and not on the provisions of that Code
which punish more severely marital violence (see paragraph 17 above; for the provisions of the new
Criminal Code, see paragraph 32 above). The Court further notes that the first-instance court, in its decision
of 25 May 2015, did not change the legal classification given to the offences with which the former husband
was charged (see paragraph 21 above).

67. The Court emphasises that special diligence is required in dealing with domestic violence cases and
considers that the specific nature of domestic violence as recognised in the Preamble to the Istanbul
Convention (see paragraph 38 above) must be taken into account in the context of domestic proceedings
(see M.G. v. Turkey, cited above, § 93). In the present case, it notes that the domestic investigation
conducted by the national authorities failed to take these specific aspects into account.

68. Moreover, the Court considers that the conclusions reached by the first-instance court are open to
question. Thus, that court found that the threats to the applicant were not sufficiently serious to qualify as
offences, and that there was no direct evidence that the injuries had been caused by her former husband (see
paragraph 21 above). The Court is not convinced that such conclusions had a dissuasive effect capable of
curbing such a serious phenomenon as domestic violence. It also notes that although no domestic authority
contested the reality and severity of the injuries sustained by the applicant, none of the investigative
measures had enabled the individual responsible to be identified. Thus, it notes that the investigative
authorities had merely questioned as witnesses the applicant’s relatives (her mother, her daughter and her
sister-in-law; see paragraph 14 above), but no other evidence had been gathered in order to identify the
origin of the injuries sustained by the applicant and, as appropriate, the individuals responsible. In a case
such as the present one, concerning alleged acts of family violence, the investigating authorities had a duty
to take the necessary measures to clarify the circumstances of the case; such measures could have included,
for example, the examining of additional witnesses, such as neighbours, or a confrontation between the
witnesses and the parties (see, mutatis mutandis, E.M. v. Romania, cited above, §§ 66 and 68).

22
69. The Court further notes that the Government argued that the effectiveness of the investigation was
compromised because the applicant did not contact the authorities until several days after the incidents
complained of, and that the physical violence to which she was allegedly subjected was an isolated incident
(see paragraph 57 above). However, the Court does not consider these arguments to be decisive. It notes
that the applicant contacted the authorities within the legal time-limits and that the investigating authorities
at no point indicated to her that her complaint alleging threats and assault was out of time. The incidents
complained of by the applicant were alleged to have occurred on 17 and 22 December 2013 (see paragraph
7 above), and her first complaint was lodged on 23 December 2013 (see paragraph 9 above); it cannot be
considered that an excessive period elapsed between the events in question and her complaint to the
authorities. Accordingly, in the circumstances of the present case, the applicant’s conduct does not disclose
a lack of diligence on her part, especially as the psychological impact is an important aspect to be taken
into consideration in cases of domestic violence (see Valiulienė, cited above, § 69). Moreover, the
Government have not established before the Court that the delay in lodging the complaints had direct
consequences on the investigation, for example by rendering impossible the examination of certain items
of evidence or the questioning of certain witnesses.

70. Nor can the Court attach decisive importance to the fact that the applicant complained to the authorities
about only one incident involving physical violence. It notes that the applicant obtained a forensic medical
certificate attesting to the fact that she required three to four days of medical treatment on account of her
injuries (see paragraph 8 above) and that the Government do not dispute the seriousness of those injuries
(see paragraph 57 above). The Court further notes that no evidence has been adduced, before it or the
national authorities, indicating that the present case should be examined from another angle than that of
marital violence, and the isolated nature of the incident complained of cannot lead to a different conclusion.

71. It is true that the applicant successfully used the provision of Law no. 217/2003 and that, on 13 March
2014, the first-instance court issued a protection order in her favour, for a period of six months (see
paragraph 23 above). The Court also notes the applicant’s submission that her former husband failed to
comply with the provisions of the protection order (see paragraph 26 above). However, it observes that the
allegations that the applicant contacted the police in this connection are not supported by the evidence
adduced by the parties (see paragraphs 26-27 above). Nonetheless, it notes that the protection order was
issued for a period subsequent to the incidents of 17 and 22 December 2013 complained of by the applicant
and that the effects of this order had no impact on the effectiveness of the criminal investigation carried out
in her case.

72. Accordingly, the Court considers that, although the legal framework put in place by the respondent
State provided the applicant with a form of protection (see paragraph 65 above), this took effect after the
violent acts complained of, and was insufficient to remedy the shortcomings in the investigation.

(ii) The investigation into the breach of the secrecy of correspondence

23
73. The Court observes that the Romanian Criminal Code specifically criminalises the offence of breach
of the secrecy of correspondence (for the two versions of the Code successively in force, see paragraphs
31-32 above). It also notes that the applicant contacted the national authorities, in the context of the criminal
proceedings for assault and threat, to complain that her former husband had accessed, without authorisation,
her electronic communications and made copies of them (see paragraphs 11 and 14 above). At no point did
the authorities responsible for the criminal investigation indicate to the applicant that the allegations that
she was making against her former husband were not criminal in nature; nor have the Government argued
before the Court that the criminal-law remedy was inadequate in this case. Rather, the Government’s
argument consists in stating that the applicant did not choose the most appropriate remedy in the
circumstances and that she ought to have brought a civil action in tort, since the events in question
concerned a private individual (see paragraph 49 above). However, the Court considers that the applicant
availed herself of a remedy made available to her under domestic law and that she thus exhausted the
available remedies. The existence of an alternative remedy cannot lead to a different conclusion (see,
mutatis mutandis, Aquilina v. Malta [GC], no. 25642/94, § 39 in fine, ECHR 1999‑III, and M.K. v. Greece,
no. 51312/16, § 55 in fine, 1 February 2018). It follows that the Government’s preliminary objection (see
paragraph 49 above), which had been joined to the merits (see paragraph 51 above), must be dismissed.

74. The Court further notes the applicant’s submission that she applied to the authorities who were already
investigating her criminal complaint for assault and threat since, in her view, there was a direct link between
the breach of her correspondence by her former husband and the acts of violence, threats and intimidation
to which she had allegedly been subjected (see paragraph 55 above). The Court notes that, under both
domestic and international law, the phenomenon of domestic violence is not regarded as being limited to
the sole fact of physical violence but is considered to include, among other aspects, psychological violence
and stalking (see paragraphs 33 and 34-42 above; and, mutatis mutandis, T.M. and C.M. v. the Republic of
Moldova, no. 26608/11, § 47, 28 January 2014). Furthermore, cyberbullying is currently recognised as one
aspect of violence against women and girls, and can take a variety of forms, including breaches of
cyberprivacy, intrusion into the victim’s computer and the capture, sharing and manipulation of data and
images, including private data (see paragraphs 36, 40 and 42 above). In the context of domestic violence,
cybersurveillance is often carried out by the person’s intimate partner (see paragraph 40 above). In
consequence, the Court accepts the applicant’s argument that actions such as illicitly monitoring, accessing
or saving one’s partner’s correspondence can be taken into account by the domestic authorities when
investigating cases of domestic violence.

75. In the present case, however, the Court notes that the domestic authorities failed to consider the merits
of the applicant’s criminal complaint alleging a breach of the confidentiality of her correspondence. Thus,
it notes that her request on 18 March 2014 for an electronic search of the family computer was dismissed
by the Tulcea police on the grounds that any information liable to be obtained by this method would be
unrelated to the offences of threats and violence of which M.V. was accused (see paragraph 11 above). The
Court further notes that the criminal complaint lodged on 11 September 2014 for breach of correspondence
was dismissed by an order of the prosecutor’s office of 17 February 2015 as being out of time (see
paragraphs 13 and 17 above). The Court takes the view that, by acting in this way, the investigating
authorities displayed excessive formalism, particularly since, according to the applicant’s arguments (see
paragraph 55 above), which were not disputed by the Government, under the new Criminal Code (which

24
entered into force on 1 February 2014, and thus before the applicant’s first request for an electronic search
of the family computer), the investigating authorities could intervene of their own motion in the event of
the wrongful interception of a conversation conducted by any electronic means of communication; the
condition of a prior complaint was applicable solely for the improper opening, removal, destruction or
detention of correspondence addressed to another person (see Article 302 of the new Criminal Code, cited
in paragraph 32 above).

76. As to the final decision by the first-instance court of 25May 2015, finding that the applicant’s complaint
concerning the alleged breach of her correspondence was unrelated to the subject matter of the case and
that information posted on social media was public in nature (see paragraph 21 above), the Court considers
that these findings are open to criticism. It reiterates that it has already held that acts such as illicitly
monitoring, accessing or saving one’s partner’s correspondence can be taken into account by the domestic
authorities when investigating cases of domestic violence (see paragraph 74 above). It considers that such
allegations of breach of correspondence require the authorities to conduct an examination on the merits in
order comprehensively to apprehend the phenomenon of domestic violence in all its forms.

77. The Court also notes that the applicant alleged that her former husband had wrongfully consulted her
electronic accounts, including her Facebook account, and that he had made copies of her private
conversations, documents and photographs (see paragraphs 11 and 13 above). It deduces that the applicant
was referring to a whole set of electronic data and documents, which was not confined to the data which
she had published on social media. Consequently, the finding by the first-instance court that the data in
issue were public is problematic, in that the domestic authorities did not carry out an examination on the
merits of the applicant’s allegations before categorising the relevant data and communications in this way.

78. The Court therefore concludes that the applicant’s allegations to the effect that her former husband
improperly intercepted, consulted and saved her electronic communications were not examined on the
merits by the national authorities. They did not take procedural measures in order to gather evidence that
would have enabled the veracity of the facts or their legal classification to be determined. The Court
considers that the authorities were therefore overly formalistic in dismissing any connection with the
incidents of domestic violence already brought to their attention by the applicant, and thus failed to take
into consideration the many forms that domestic violence may take.

(iii) Conclusion

79. The Court concludes that the national authorities failed to address the criminal investigation as one
which raised the specific problem of marital violence (see paragraphs 66-67 and 78 above) and that, by
taking this approach, they failed to respond in a manner that was commensurate to the seriousness of the
matters complained of by the applicant. The investigation into the accusations of assault was deficient and
no examination was conducted into the merits of the complaint alleging a breach of the secrecy of
correspondence, which, in the Court’s opinion, is closely linked to the complaint of violence. It follows that

25
there has been a failure to comply with the positive obligations under Articles 3 and 8 of the Convention
and a breach of these provisions.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

80. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.”

Damage
81. The applicant claimed RON 30,358, approximately EUR 6,645, in respect of the pecuniary damage she
had sustained on account of the loss of her salary after November 2014 and the costs of her visits to doctors
in 2017. She also claimed EUR 12,000 in respect of the non-pecuniary damage caused by the physical and
mental suffering resulting from the domestic violence.

82. The Government opposed the award of the sum claimed in respect of pecuniary damage, arguing that
there was no causal link with the subject matter of the application. They submitted that the sum claimed in
respect of non-pecuniary damage was excessive and unjustified.

83. The Court does not discern any causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim. On the other hand, it considers it appropriate to award the applicant
EUR 10,000 in respect of non-pecuniary damage.

Costs and expenses

84. The applicant also claimed RON 2,136.85 (approximately EUR 467) for the costs and expenses
incurred before the domestic courts and the Court. She submitted certain supporting documents, concerning,
in particular, the legal fees for her representation before the Court, postal and translation costs, and expenses
in respect of the medical examinations of 23 and 24 December 2013.

85. The Government invited the Court to award the applicant an amount corresponding to the reasonable
expenses necessarily and actually incurred in the proceedings.

86. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses
only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the sum of EUR 457 covering costs under all heads.

26
Default interest
87. The Court considers it appropriate that the default interest rate should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s preliminary objection on non-exhaustion of domestic remedies as
regards the complaint under Article 8 of the Convention, and dismisses it;

2. Declares the application admissible;

3. Holds that there has been a violation of Articles 3 and 8 of the Convention on account of the failure to
comply with the positive obligations arising from these provisions;

4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be
converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 457 (four hundred and fifty-seven euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be
payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

27