Resolução da Assembleia da República n.º 91/2009, de 15 de Setembro de 2009
Resoluçáo da Assembleia da República n. 91/2009
Aprova o Protocolo Adicional à Convençáo sobre o Cibercrime
Relativo à Incriminaçáo de Actos de Natureza Racista e Xenófoba Praticados através de Sistemas Informáticos, adoptado em Estrasburgo em 28 de Janeiro de 2003.
A Assembleia da República resolve, nos termos da alínea i) do artigo 161. e do n. 5 do artigo 166. da Constituiçáo, aprovar o Protocolo Adicional à Convençáo sobre o Cibercrime relativo à Incriminaçáo de Actos de Natureza Racista e Xenófoba Praticados através de Sistemas Informáticos, adoptado em Estrasburgo em 28 de Janeiro de 2003, cujo texto, na versáo autenticada na língua inglesa, assim como a respectiva traduçáo para a língua portuguesa, se publica em anexo.
Aprovada em 10 de Julho de 2009.
O Presidente da Assembleia da República, Jaime Gama.
6416 ADDITIONAL PROTOCOL TO THE CONVENTION ON CYBERCRIME,
CONCERNING THE CRIMINALISATION OF ACTS OF A RACIST AND XENOPHOBIC NATURE COMMITTED THROUGH COMPUTER SYSTEMS.
The member States of the Council of Europe and the other States Parties to the Convention on Cybercrime, opened for signature in Budapest on 23 November 2001, signatory hereto:
Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
Recalling that all human beings are born free and equal in dignity and rights;
Stressing the need to secure a full and effective implementation of all human rights without any discrimination or distinction, as enshrined in European and other international instruments;
Convinced that acts of a racist and xenophobic nature constitute a violation of human rights and a threat to the rule of law and democratic stability;
Considering that national and international law need to provide adequate legal responses to propaganda of a racist and xenophobic nature committed through computer systems;
Aware of the fact that propaganda to such acts is often subject to criminalisation in national legislation;
Having regard to the Convention on Cybercrime, which provides for modern and flexible means of international co -operation and convinced of the need to harmonise substantive law provisions concerning the fight against racist and xenophobic propaganda;
Aware that computer systems offer an unprecedented means of facilitating freedom of expression and communication around the globe;
Recognising that freedom of expression constitutes one of the essential foundations of a democratic society, and is one of the basic conditions for its progress and for the development of every human being;
Concerned, however, by the risk of misuse or abuse of such computer systems to disseminate racist and xenophobic propaganda;
Mindful of the need to ensure a proper balance between freedom of expression and an effective fight against acts of a racist and xenophobic nature;
Recognising that this Protocol is not intended to affect established principles relating to freedom of expression in national legal systems;
Taking into account the relevant international legal instruments in this field, and in particular the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocol n. 12 concerning the general prohibition of discrimination, the existing Council of Europe conventions on co -operation in the penal field, in particular the Convention on Cybercrime, the United Nations International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, the European Union Joint Action of 15 July 1996 adopted by the Council on the basis of article K.3 of the Treaty on European Union, concerning action to combat racism and xenophobia;
Welcoming the recent developments which further advance international understanding and co -operation in combating cybercrime and racism and xenophobia;
Having regard to the Action Plan adopted by the Heads of State and Government of the Council of Europe on the occasion of their Second Summit (Strasbourg, 10 -11 Octo-
ber 1997) to seek common responses to the developments of the new technologies based on the standards and values of the Council of Europe:
have agreed as follows:
CHAPTER I
Common provisions
Article 1
Purpose
The purpose of this Protocol is to supplement, as between the Parties to the Protocol, the provisions of the Convention on Cybercrime, opened for signature in Budapest on 23 November 2001 (hereinafter referred to as «the Convention»), as regards the criminalisation of acts of a racist and xenophobic nature committed through computer systems.
Article 2
Definition
1 - For the purposes of this Protocol:
Racist and xenophobic material
means any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors.
2 - The terms and expressions used in this Protocol shall be interpreted in the same manner as they are interpreted under the Convention.
CHAPTER II
Measures to be taken at national level
Article 3
Dissemination of racist and xenophobic material through computer systems
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:
Distributing, or otherwise making available, racist and xenophobic material to the public through a computer system.
2 - A Party may reserve the right not to attach criminal liability to conduct as defined by paragraph 1 of this article, where the material, as defined in article 2, paragraph 1, advocates, promotes or incites discrimination that is not associated with hatred or violence, provided that other effective remedies are available.
3 - Notwithstanding paragraph 2 of this article, a Party may reserve the right not to apply paragraph 1 to those cases of discrimination for which, due to established principles in its national legal system concerning freedom of expression, it cannot provide for effective remedies as referred to in the said paragraph 2.Article 4
Racist and xenophobic motivated threat
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:
Threatening, through a computer system, with the commission of a serious criminal offence as defined under its domestic law i) persons for the reason that they belong to a group, distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or ii) a group of persons which is distinguished by any of these characteristics.
Article 5
Racist and xenophobic motivated insult
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:
Insulting publicly, through a computer system i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or ii) a group of persons which is distinguished by any of these characteristics.
2 - A Party may either:
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Require that the offence referred to in paragraph 1 of this article has...
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