Octopus Cybercrime Community

Belarus has not yet acceded to the Budapest Convention on Cybercrime (ETS 185) but has expressed a strong interest in accession. …

• Criminal Code, Law No 275-Z
• Criminal procedure code, Law No 295-Z
• Law No 455-Z "On Information, Informatization and Protection of Information of Republic of Belarus"
• Law No 277-Z "On Telecommunications"
• Decree of the President of Republic of Belarus of November 8, 2011 No. 515 About some questions of development of information society in Republic of Belarus
• Law of the Republic of Belarus dated July 15, 2015 N 293-Z "On the State Forensic Examination Committee of the Republic of Belarus" - a legislative act which defines legal status of the mentioned body;
• The law of Republic of Belarus of July 15, 2015 No. 307-Z "About operational search activity"
• Law of the Republic of Belarus dated July 13, 2012 "On the Investigation Committee of the Republic of Belarus"
• Law of the Republic of Belarus No. 263-Z “On Agencies of Internal Affairs of Belarus”
• Law of the Republic of Belarus No. 102-Z “On Agencies of State Security of Belarus
• Law of the Republic of Belarus No. 220-Z “On Prosecutorial bodies of Belarus”
• Decree of the President of the Republic of Belarus No 60 On Measures to Improve Use of the National Segment of Internet

In terms of substantive law compared with Budapest Convention provisions, national legislation of Belarus encompasses:

• Incomplete implementation of Articles 2-6 of the BCC (c-i-a offences);
• Only general definitions of forgery and fraud – no computer data elements (Art. 7-8 BCC);
• General definition of fraud used – no computer data element (Art. 8 BCC);
• General implementation of child pornography offences but several definitions lacking (Art. 9 BCC);
• General provision used for IPR offences (Art. 10 BCC);
• Concepts of attempt, aiding and abetting implemented (Art. 11 BCC);
• Corporate liability established only for administrative misdemeanours (Art. 12 BCC)

Title XII of Belarus’ Criminal Code - Crimes against Information Security - contains in Chapter 31 a number of articles that deal with the requirements of Articles 1-6 of the Cybercrime Convention:

• Article 349. Unauthorized Access to Computer Data
• Article 350. Computer Data Modification
• Article 351. Computer Sabotage
• Article 352. Illicit Acquisition of Computer Data
• Article 353. Production or Disposal of Special-Purpose Tools to Acquire Unauthorized Access to a Computer System/Network
• Article 354. Design, Utilization or Dissemination of Malicious Software
• Article 355. Breach of IT System/Network Operation Rules
• Article 212. Computer Theft
• Article 201. Violation of author's, allied, inventive and patent rights
• Article 222. Production or sale of counterfeit means of payment (credit cards)
• Article 343(1). Production and Dissemination of Child Pornographic Materials

The notions of electronic evidence for the purpose of criminal proceedings as well as important definitions of subscriber information, traffic data and content data, as required by the Convention, are not implemented as a part of general definitions of the criminal procedure or related legislation.

The Decree of the President of the Republic of Belarus No. 60 "On the issues to improve making use of the national segment of Internet" (1 February 2010) covers data retention and some of the issues which are subject-matter of Articles 16 and 17 Budapest Convention, namely, expedited preservation of stored computer data and expedited preservation and partial disclosure of traffic data. This decree mandates that Internet service providers “identify user’s terminals when providing services”, and “register and store data on the users’ terminals and information on Internet services provided”. In addition, owners of Internet share points (computer clubs, Internet-cafes, home networks and other locations where public access to the Internet is possible) or persons authorised by them are required to enable identification of their Internet users and store their personal data and information on internet services provided to those users. However, this does not amount to full implementation of Articles 16 and 17, as the retention of data is not identical with the scope and purpose of these Articles.

Regarding production orders under Article 18 Budapest Convention, Article 103, p. 2 of the Criminal Procedure Code of Belarus provides only general guidance as to the handover of documents by any person at the request of an investigator, as sanctioned by the prosecutor. Additionally, according to the Law on Agencies of Internal Affairs, internal affairs agencies are authorized to carry out operative investigations and to, inter alia, “request and receive from companies and people data and explanations as to inspected activity; to schedule inventory count and inspections; to request and, where necessary, seize documents” and so on.

Article 19 Budapest Convention on the search and seizure of stored computer data is generally implemented in the Belarus legislation via traditional search provisions contained in chapter 24 of the Criminal Procedure Code. According to article 208 of the CPC, searches can be executed when there is reasonable evidence to believe that the instrument of crime, items, records, and valuables which may be critical for criminal investigation may be kept on specific location or held by specific person. In the similar manner, Article 209 states that “reasonable evidence indicating that certain items or records which are critical for criminal investigations are available, provided that the location and possessor thereof have been clearly identified, constitutes grounds for a seizure”. Belarus does not provide for judicial supervision of search and seizure measure, as the order of investigator or prosecutor (or, in special cases, heads of investigative units) is sufficient in this respect (Article 210 of the Code of Criminal Procedure).

Implementation of special provisions in the context of search and seizure provided by Article 19 (search of a connected system; making and retaining a copy of those computer data; maintaining the integrity of the relevant stored computer data; rendering inaccessible or removing those computer data in the accessed computer system) is not found in the procedural legislation of Belarus. At the same time, provisions related to seizing or similarly securing computer data (p. 3(a)) and assistance of specialists in technical matters (p. 4) are covered by general regulations on seizures and involvement of specialists and experts in criminal proceedings.

The real-time collection of traffic data (Article 20 Budapest Convention) is performed on the basis of the Law on Investigation Activities. The relevant provision in this regard is article 11, sub-paragraph 12, which provides for a power to “retrieve information from telecom channels”. As the real-time collection of traffic data is considered to be the measure which limits constitutional right to privacy, Article 13 of the said Law stipulates that this measure can only be executed on the basis of prosecutor’s warrant, upon a “well-grounded order of a respective agency responsible for operational investigation”; no judicial authorization is provided. Article 13 also provides for certain time-limits of the duration of relevant measures.

The legal framework for interception of content data (Article 21 Budapest Convention) is established in several sources of law. Article 214 of the Code of Criminal Procedure provides for a general power to monitor and record communications. According to this provision, “communications may be monitored and recorded subject to the warrant issued by the prosecutor or deputy thereof, or, alternatively, subject to the resolution of the Republic of Belarus Interior Minister, Chairman of the National Security Committee, Vice-Chairman of the Government Audit and Supervision Committee – Head of Financial Investigations, or officials acting in their capacity”; no judicial authorization is provided. From the technical perspective, the interception of content data is facilitated by Decree of the President of Belarus of 3 March, 2010, No 129 “On Cooperation between Telecommunication Operators and Investigation Authorities”.

Legal and other measures to establish powers and procedures for specific criminal investigations or court hearings are provided in a number of laws, for example Criminal Procedural Code, Criminal Code, The law of Republic of Belarus of July 15, 2015 No. 307-Z "About operational search activity" etc.

Specific rules concerning the investigation of computer crimes are not defined in the law.

The questions concerning the powers and procedures which are necessary for realization of specific criminal investigations or procedures mentioned in Article 14 of the Convention are regulated by riminal Procedure Code Of Republic of Belarus.

No specific provisions on computer-related search and seizure; “traditional” rules on search and seizure are used.

In terms of horizontally applicable conditions and safeguards (Article 15 Budapest Convention), some of the elements limiting and controlling the application of more intrusive measures, such as search and seizure, real-time collection of traffic data and content interception, are present.

The Constitution of Belarus guarantees a series of fundamental human rights and freedoms.

General Prosecutor’s office oversees enforcement of laws in the course of criminal investigation, and compliance of court judgements with law, including civil and criminal cases, and misdemeanours; where so stipulated by law, it carries out initial investigation and supports public prosecution.

Belarusian Constitution provides an adequate legal framework for the protection of human rights. The protection of personal data as well as the protection of privacy in the context of electronic communications are values specifically guaranteed by article 28 of the Constitution.

Cooperation between service providers and authorities in interception of computer data is regulated by Decree of the President of Belarus of 3 March, 2010, No 129 On Cooperation between Telecommunication Operators and Investigation Authorities

The National Program of development of digital economy and information society for 2016 – 2020 

The Strategy of development of informatization in Republic of Belarus for 2016 – 2022

24/7 points of contact and police cooperation

The national authority for the 24/7 point of contact is the High-Tech Crime Department within the Ministry of Interior of Belarus (Department “K”) .

The 24/7 contact point does not confirm receipt of data preservation requests. Upon receipt of a preservation request, a legal review as to national and international requirements is performed within 24 hours, another 24 hours is reserved for decision on returning the request for additional clarifications, proceeding with the request or refusing to comply. In case of approval, the request is sent for execution to the relevant provider/person within 24 hours of approval. Providers undertake necessary activities for data preservation during the working hours and within a few days upon the written inquiry.

Urgent procedures are not stipulated in the Criminal Procedure Code of the Republic of Belarus, but in case of need and possible public danger (due justification is important) every kind of legal assistance sought in a criminal case can be rendered within the shortest term.

24/7 Point of contact (G7):

Ministry of the Interior

High-Tech Crime Department (HTCD)

Minsk, Republic of Belarus

Gordoskoy Val 4

Mutual legal assistance authorities

At the pre-trial stage of criminal proceedings, Office of the Prosecutor General of the Republic of Belarus, International Legal Department is deemed to be central authority for mutual legal assistance in criminal cases based on the principle of reciprocity.

At the trial stage of criminal proceedings, the competent authorities are the International Legal Department of the Office of the Prosecutor General and the Supreme Court of the Republic of Belarus; the latter is competent only for submitting procedural or other documents in criminal cases under trial and execution of sentences (and also in relation to other decisions of the court in criminal proceedings).

In the course of implementation of international cooperation in criminal cases and preparation of the corresponding requests for legal assistance on the basis of a treaty, the Office of the General Prosecutor is always indicated as the central competent authority. In case of a treaty basis, the Republic of Belarus additionally determines national competent authorities specific to the treaty (the following authorities are often mentioned: the Investigative Committee of the Republic of Belarus, the Committee for State Security of the Republic of Belarus, the Ministry of Internal Affairs of the Republic of Belarus, the State Control Committee of the Republic of Belarus and others), or may choose to keep the Prosecutor’s Office as single authority. This does not apply in the course of implementation of international cooperation based on the principle of reciprocity, where the Office of the Prosecutor General represents the only central competent body.

For outgoing requests, the authority in charge of the criminal case sends a draft of the request to the competent authority that can approve the request or ask for clarifications/corrections. Once cleared, the request and attached materials are sent to the foreign competent authority either through diplomatic channels or directly – in which case the requesting criminal justice authority is notified of progress.

Central competent authority of the Republic of Belarus for extradition on the basis of an agreement or treaty, as well as on the basis of the principle of reciprocity is Office of the General Prosecutor of the Republic of Belarus (International Legal Department)

Central competent authorities of the Republic of Belarus for mutual legal assistance are:

• Office of the General Prosecutor of the Republic of Belarus (only this Office if cooperation is built on the basis of the principle of reciprocity)
• Office of the General Prosecutor of the Republic of Belarus (on a treaty basis, if requested procedural actions require a sanction of a public prosecutor)
• Investigative Committee of the Republic of Belarus (if requested procedural actions do not require a sanction of a public prosecutor)
• State Security Committee of the Republic of Belarus (if requested procedural actions do not require a sanction of a public prosecutor)
• Ministry if the Interior of the Republic of Belarus (if requested procedural actions do not require a sanction of a public prosecutor)
• State Control Committee of the Republic of Belarus (if requested procedural actions do not require a sanction of a public prosecutor)
• Direct communication (treaty basis), communication through diplomatic channels (cooperation on the principle of reciprocity, some treaties, e.g. with Cyprus)
• INTERPOL channels serve as an alternative means of communication (for urgent cases)
• Contact point 24/7 within Ministry if the Interior of the Republic of Belarus

MLA request:

General prosecutor's office

Minsk, Republic of Belarus

Internatsionalnaya 22

MLA request:

Investigative Committee

220034, Minsk, Frunze st., bldg. 19

sk@sk.gov.by

According to the international agreements signed by Belarus with other member-states of the CIS the Investigative Committee of the Republic of Belarus is declared to be a competent agency to provide assistance in criminal cases.

All forms of cooperation are covered by the chapter XV of the Criminal Procedure Code of the Republic of Belarus if we deal with the cooperation on the reciprocity principle.

If some obstacles are not well enough regulated in a bilateral or multilateral treaty we use the Criminal Procedure Code of the Republic of Belarus as a supplementary source (Article 1 part 5)