BRIEFING BY THE DOJ&CD ON -BRIEFING BY THE DOJ&CD ON -

(1) THE RATIFICATION OF THE (1) THE RATIFICATION OF THE CONVENTION ON CYBERCRIME AND CONVENTION ON CYBERCRIME AND THE ADDITIONAL PROTOCOL TO THE CONVENTION ON CYBERCRIME THE ADDITIONAL PROTOCOL TO THE CONVENTION ON CYBERCRIME CONCERNING THE CRIMINALISATION OF ACTS OF A RACIST AND CONCERNING THE CRIMINALISATION OF ACTS OF A RACIST AND XENOPHOBIC NATURE COMMITTED THROUGH COMPUTER SYSTEMS; XENOPHOBIC NATURE COMMITTED THROUGH COMPUTER SYSTEMS; AND AND (2) THE (A) EXTRADITION TREATY AND (B) MUTUAL LEGAL (2) THE (A) EXTRADITION TREATY AND (B) MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATY BETWEEN SOUTH ASSISTANCE IN CRIMINAL MATTERS TREATY BETWEEN SOUTH AFRICA AND IRANAFRICA AND IRAN

SELECT COMMITTEE ON SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL SECURITY AND CONSTITUTIONAL

DEVELOPMENTDEVELOPMENT

8 June 20128 June 2012

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CONTENTS

1. INTRODUCTION

2. THE BRIEFINGS WILL COVER TWO MAIN ISSUES:

2.1 THE RATIFICATION OF THE CONVENTION ON CYBERCRIME AND THE ADDITIONAL PROTOCOL TO THE CONVENTION ON CYBERCRIME CONCERNING THE CRIMINALISATION OF ACTS OF A RACIST AND XENOPHOBIC NATURE COMMITTED THROUGH COMPUTER SYSTEMS;

2.2 THE (a) EXTRADITION TREATY AND (b) AGREEMENT ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN SOUTH AFRICA AND IRAN

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1. INTRODUCTION

1.1 Firstly, the Convention on Cybercrime and the Additional Protocol was Tabled in Parliament on 14 February 2011 for consideration.

a) The National Assembly referred both the Convention and the Additional Protocol to the Portfolio Committee on Justice and Constitutional Development on 23 February 2011.

The DOJ&CD when requested by the Portfolio Committee during 2011 for a briefing on the ratification thereof indicated to the Committee that in view thereof that there were challenges relating to the ratification of the Convention discussions regarding the ratification be held in abeyance. This was granted. This status has not changed.

b) The NCOP similarly referred both the Convention and the Additional Protocol to the Select Committee on Security and Constitutional Development on 18 April 2011. This briefing is in pursuance to that referral and the request by the Select Committee to the DOJ&CD for a briefing in that regard. A similar request is to be made to the Select Committee as was made to the Portfolio Committee.

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1. INTRODUCTION cont.

1.2 Secondly, the briefing relates to the two Treaties between the RSA and Iran

1.2.1 The purpose of the briefing is to provide the background regarding the two Treaties relating to (a) the Extradition Treaty as well as (b) the Agreement on Mutual Legal Assistance in Criminal Matters Treaty between South Africa and Iran and to seek the Select Committee of the NCOP’s consideration of the request for Parliament’s approval to ratify in terms of section 231(2) of the Constitution.

1.2.2 The two Treaties were negotiated and signed on 31 August 2004 by Minister Mabandla already, but they were only introduced into Parliament for approval in April 2011. There were reasons for the delay as will be indicated.

1.2.3 Both Treaties were considered and approved by the Portfolio Committee in September 2011 and the Select Committee is requested to do the same.

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2. RATIFICATION OF THE CYBERCRIME CONVENTION

CYBERCRIME CONVENTION AND ADDITIONAL PROTOCOL DISCUSSION:

2.2 The briefing (regarding the Convention on Cybercrime and the Additional Protocol to the Convention on Cybercrime concerning the Criminalisation of Acts of a Racist and Xenophobic Nature committed through Computer Systems) will cover the following:

2.2.1 A Brief background to the Convention and its Additional Protocol

2.2.2 Constraints regarding Ratification the Convention

2.2.3 A Request that ratification of both the Convention and the Additional Protocol be held in abeyance at this point in time.

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2. RATIFICATION OF THE CYBERCRIME CONVENTION

2.2.1 A Brief background to the Convention and its Additional Protocol

Summary of the Convention

In essence the issue of Cybercrime is seen as a global priority that requires an international treaty that is multilateral in nature, and that addresses all of the current challenges with respect to Cybercrime.

The Convention is the first international treaty (based on work by the Council of Europe experts), on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. It also contains a series of powers and procedures such as the search of computer networks and interception.

Its main objective, as set out in the preamble, is to pursue a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering international co-operation.

It has been supplemented by an Additional Protocol making any publication of racist and xenophobic propaganda via computer networks a criminal offence.

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2. RATIFICATION OF THE CONVENTION cont.

2.2.2 Constraints regarding Ratification

Some concerns are that the European Commission’s Cybercrime Convention, which is already ten years old – and is considered outdated - does not address at present all the concerns relating to the cyberspace environment; does not meet all the requirements of a truly international instrument; and is mainly aligned to European Council members’ needs.

Many developing countries are therefore reluctant to endorse the European Convention, because of its perceived shortcomings.

1.The Salvador Declaration that was adopted at the conclusion of the Twelfth United Nations Congress on Crime Prevention and Criminal Justice during April 2010, consequently called for a study to be conducted in respect of cyber crime.

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2. RATIFICATION OF THE CONVENTION cont.

2.2.2 Constraints regarding Ratification cont.

According to paragraph 42 of the Salvador Declaration, the study is to examine the following:

“We invite the Commission on Crime Prevention and Criminal Justice to consider convening an open-ended intergovernmental expert group to conduct a comprehensive study of the problem of cyber crime and responses to it by Member States, the international community and the private sector, including the exchange of information on national legislation, best practices, technical assistance and international cooperation, with a view to examining options to strengthen existing and to propose new national and international legal or other responses to cyber crime”.

The above recommendation was adopted by the Commission on Crime Prevention and Criminal Justice and then by the Economic and Social Council in its resolution 2010/18 and by the General Assembly in its resolution 65/230. 

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2. RATIFICATION OF THE CONVENTION cont.

2.2.2 Constraints regarding Ratification cont.

The above study, the outcome of which is expected by April 2013, should give us an indication of the gaps (if any) in the Convention and indicate whether there is a need for a new international instrument under the auspices of the United Nations. Should we now ratify the Convention and a need for a new international instrument is identified, we may be in a position where an outdated Convention had already been ratified.

This was also a concern raised by a number of countries at the 2011 expert group meeting on cyber crime held in Vienna, Austria, under the auspices of the United Nations Office on Drugs and Crime.

2. Of particular concern is the fact that South Africa’s domestic legislation is not fully aligned with the procedural law requirements prescribed by Section 2 of the Convention.

The lack of domestic procedures as required by the Convention may also become relevant in Chapter III of the Convention that deals with international cooperation. Legislation in South Africa does not provide for preservation of data, especially where no formal request for mutual legal assistance had been received. Data can only be received once it had formally been seized by the police.

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2. RATIFICATION OF THE CONVENTION cont.

Other Constraints regarding Ratification, cont.

This may impact negatively on international cooperation if South Africa is not in a position to comply with foreign requests in terms of the Convention. For example, Parties inter alia have to adopt such legislative and other measures as may be necessary to obtain orders against persons for the expeditious preservation of specified computer data, to maintain the integrity of such data for a period of time and to make provision for production orders by its competent authorities in terms of which persons can be ordered to submit specified computer data or to protect computer data in a computer system, to search and seize stored computer data, to collect traffic data in real time and to intercept the content of data.

South Africa furthermore does not have specific procedures in place which is exclusively focused on computer systems and computer data. There is also no provision made in domestic legislations for preservation of computer data for the protection of computer data by persons who are being investigated or who are implicated in investigations.

Of particular concern is Article 32 of the Convention which provides for trans-border access to stored computer data in certain circumstances. This aspect may pose a threat to national sovereignty and state security in that any person (including a private person) who has so-called lawful authority to disclose information could disclose computer data to another State without the knowledge and consent of the State where the data is located/stored.

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2. RATIFICATION OF THE CONVENTION cont.

Other Constraints regarding Ratification cont.

3. An important concern involves the status of Parties to the Convention from outside the Council of Europe, in comparison to Member States of the Council of Europe.

Chapter IV of the Convention, for example, indicates that key decisions concerning the Convention will reside with the Members States and the structures of the Council of Europe. These decision making processes are managed by officials whose mandate derives from the Members of the Council of Europe, not from other parties to the Convention.  This weakens the influence of Parties outside the Council of Europe with respect to decisions concerning the Convention, including future amendments. This could impact on our ability to address Cybercrime effectively on a global basis in future.

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2. RATIFICATION OF THE CONVENTION cont.

Other Constraints regarding Ratification cont.

4. Ratification of the European Convention may send a confusing signal in terms of our stance in the international discourse on Cybercrime. Ratification at this point in time would be seen as an endorsement of the view that there is no need for a global treaty to deal with Cybercrime, in opposition to the views of many developing countries (especially BRIC).

In view of the above it is submitted that ratification of the Convention may be premature at this point in time.

It is therefore recommended that the intended ratification be kept in abeyance until after the 2013 outcome of the UN study provided in paragraph 42 of the Salvador Declaration.

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3. IRAN TREATIES

3. DISCUSSION REGARDING THE (a) EXTRADITION TREATY AND (b) AGREEMENT ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN SOUTH AFRICA AND IRAN

3.1 Request by the Select Committee:

The Select Committee, in dealing with the political mandate of the agreement, questioned:

•the processes followed to formulate an international agreement; and•the motivation to approve the agreement when South Africa’s constitutionally imposed human rights obligations toward offenders were not compatible with that of the Islamic Republic of Iran.

The Select Committee requested consequently a meeting with the Accounting Officer of the Department of Justice and Constitutional Development to discuss the political matters related to the international agreement.

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3. TREATIES cont.

3.2 Background to the Extradition Treaty and Mutual Legal Assistance between South Africa and Iran

It should be noted that though the Executive negotiates and signs international agreements, treaties are only binding once Parliament approves them.

Parliament’s involvement takes place after a treaty or agreement was negotiated and is, mostly, limited to either approving or not approving.

The State Law Advisers have indicated that the two Treaties are not in conflict with South Africa’s domestic law and existing international obligations. The former President T Mbeki approved on 22 August 2004 that the Minister of Justice and Constitutional Development sign the Treaties with the Islamic Republic of Iran on behalf of the Government. It was signed on 31 August 2004 by Minister Mabandla. Unfortunately, it was discovered that it has still not yet been submitted to Parliament by 2009 and it was submitted by the current Minister to Parliament.

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3. TREATIES cont.

3.2 Background cont.

The Extradition Act, 1962(Act 67 of 1962), inter alia, provides in section 2(1)(a) that the President may, on such conditions as he may deems fit but subject to the provisions of the Act, enter into an agreement with any foreign state, other than a designated state, providing for the surrender on a reciprocal basis of persons accused or convicted of the commission within the jurisdiction of the Republic or such state or any territory under the sovereignty or protection of such state, of an extraditable offence or offences specified in such agreement and may likewise agree to any amendment or revocation of such agreement.

A similar provision exists in section 27(1) of the International Cooperation in Criminal Matters Act, 1996 (Act 75 of 1996).  

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3. TREATIES cont.

3.3 Discussion

In terms of article 25(2) of the Extradition Treaty and article 22(2) of the Mutual Legal Assistance in Criminal Matters Treaty, the respective Treaties shall enter into force on the date of the last written notification that the constitutional processes have been completed. Section 231(2) of the Constitution provides as follows:“An international agreement binds the Republic only after it approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3)” As indicated earlier, the Portfolio Committee has approved the ratification in 2011. The request is now for the Select Committee and the NCOP to do the same.

As soon as Parliament has approved the ratification of the Treaties, the Minister for Justice and Constitutional Development will give notice thereof in the Gazette in terms of section 2(3)ter of the Extradition Act, 1962 (Act 67 of 1962) and section 27(2) of the International Cooperation in Criminal Matters Act, 1996 (Act 75 of 1996). 

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3. TREATIES cont.

3.3 Discussion cont.

The Constitutional Court in the case of President of the RSA v Nello Quagliani and others ruled that the procedure followed for the conclusion of Extradition treaties is correct and constitutional.

The team negotiating the Treaties with Iran was fully aware of the human rights record of Iran. Provisions were thus made to protect any person’s human rights if he or she is extradited.

Treaties are subject to the domestic law of the two states. Any request or element thereof in conflict with the RSA domestic law will lead to request be declined. Regarding a situation where a death penalty is a possible sentence in Iran, sufficient assurances need to be given that the person extradited will, amongst others, not be tortured, or put to death.

In 2007 a SA citizen was tried in Iran for drug related charges and the death penalty was imposed. After intervention by SA the sentence was commuted to life imprisonment.

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4. CONCLUSION

1.CONVENTION ON CYBERCRIME

RECOMMENDATION

In light of the constraints it is recommended that ratification be held in abeyance.

2.TREATIES WITH IRAN

RECOMMENDATION

In light of the background provided and also to indicate to the rest of the world that South Africa will not be a safe haven for criminals, it is recommended that Parliament approve the ratification of the said Treaties.