Appendiks
Appendiks 1
Konventionsbestemmelser om forsøg og medvirken – originalsprog (engelsk)
| Convention on Cybercrime, ETS No. 185 (2001) | Convention on Action against Trafficking in Human Beings, CETS No. 197 (2005) | Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, CETS No. 201 (2007) | Convention on Preventing and Combating Violence against Women and Domestic Violence, CETS No. 210 (2011) |
| Article 11 – Attempt and aiding or abetting | Article 21 – Attempt and aiding or abetting | Article 24 – Aiding or abetting and attempt | Article 41 – Aiding or abetting and attempt |
| 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. | 1. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences when committed intentionally, aiding or abetting the commission of any of the offences established in accordance with Articles 18 and 20 of the present Convention. 2. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences when committed intentionally, an attempt to commit the offences established in accordance with Articles 18 and 20, paragraph a, of this Convention. | 1. Each Party shall take the necessary legislative or other measures to establish as criminal offences, when committed intentionally, aiding or abetting the commission of any of the offences established in accordance with this Convention. 2. Each Party shall take the necessary legislative or other measures to establish as criminal offences, when committed intentionally, attempts to commit the offences established in accordance with this Convention. 3. Each Party may reserve the right not to apply, in whole or in part, paragraph 2 to offences established in accordance with Article 20, paragraph 1.b, d, e and f, Article 21, paragraph 1.c, Article 22 and Article 23. | 1. Parties shall take the necessary legislative or other measures to establish as an offence, when committed intentionally, aiding or abetting the commission of the offences established in accordance with Articles 33, 34, 35, 36, 37, 38.a and 39 of this Convention. 2. Parties shall take the necessary legislative or other measures to establish as offences, when committed intentionally, attempts to commit the offences established in accordance with Articles 35, 36, 37, 38.a and 39 of this Convention. |
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Konventionsbestemmelser om forsøg og medvirken – dansksproget version*
| Budapestkonventionen, ETS. nr. 185 (2001) | Warszawakonventionen, CETS nr. 197 (2005) | Lanzarotekonventionen, CETS nr. 201 (2007) | Istanbulkonventionen, CETS nr. 2010 (2011) |
| Artikel 11 – Forsøg og medvirken | Artikel 21 – Forsøg og medvirken | Artikel 24 – Forsøg og medvirken | Artikel 41 – Forsøg og medvirken |
| 1. Enhver part skal vedtage sådanne lovgivningsmæssige og andre foranstaltninger, der måtte være nødvendige for at fastsætte, at det er en strafbar handling i henhold til national ret forsætligt at medvirke til at begå en af de strafbare handlinger, der er nævnt i konventionens artikel […] 9, med forsæt til, at der begås en sådan strafbar handling. 2. Enhver part skal vedtage sådanne lovgivningsmæssige og andre foranstaltninger, der måtte være nødvendige for at fastsætte, at det er en strafbar handling i henhold til national ret forsætligt at forsøge at begå en af de strafbare handlinger, der er nævnt i konventionens artikel […] 9, stk. l, litra a og c. 3. Enhver stat kan forbeholde sig ret til helt eller delvist at undlade at anvende stk. 2 [forsøg]. | 1. Hver part skal vedtage de lovgivningsmæssige og andre foranstaltninger, der måtte være nødvendige for at fastsætte, at det er en strafbar handling forsætligt at medvirke til at begå en af de strafbare handlinger, der er omfattet af konventionens artikel 18 og 20. 2. Hver part skal vedtage de lovgivningsmæssige og andre foranstaltninger, der måtte være nødvendige for at fastsætte, at det er en strafbar handling forsætligt at forsøge at begå en af de strafbare handlinger, der er omfattet af konventionens artikel 18 og artikel 20, litra a. | 1. Hver part skal træffe de nødvendige lovgivningsmæssige eller andre foranstaltninger for at fastsætte, at det er en strafbar handling forsætligt at medvirke til at begå en af de af konventionen omfattede strafbare handlinger. 2. Hver part skal træffe de nødvendige lovgivningsmæssige eller andre foranstaltninger for at fastsætte, at det er en strafbar handling forsætligt at forsøge at begå en af de af konventionen omfattede strafbare handlinger. 3. Hver part kan forbeholde sig ret til helt eller delvist at undlade at anvende stk. 2 [forsøg] på strafbare handlinger omfattet af artikel 20, stk. 1, litra b, d, e og f, artikel 21, stk. 1, litra c, artikel 22 og artikel 23. | 1. Parterne træffer de lovgivningsmæssige eller andre foranstaltninger, der er nødvendige for at gøre det strafbart med forsæt at medvirke til begåelsen af de strafbare handlinger, der er omfattet af artikel 33, 34, 35, 36, 37, 38, litra a, og 39 i denne konvention. 2. Parterne træffer de lovgivningsmæssige eller andre foranstaltninger, der er nødvendige for at gøre det strafbart med forsæt at forsøge at begå de strafbare handlinger, der er omfattet af artikel 35, 36, 37, 38, litra a, og 39 i denne konvention. |
*danske oversættelser fra følgende bekendtgørelser (Lovtidende C): nr. 12 af 15/03/2007, nr. 15 af 02/03/2010, nr. 57 af 15/10/2010 og nr. 11 af 01/08/2014.
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Appendiks 2
Bemærkninger i forklarende rapporter (Explanatory Reports)
| Convention on Cybercrime, ETS No. 185 (2001) | Convention on Action against Trafficking in Human Beings, CETS No. 197 (2005) | Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, CETS No. 201 (2007) | Convention on Preventing and Combating Violence against Women and Domestic Violence, CETS No. 210 (2011) |
| Article 11 – Attempt and aiding or abetting | Article 21 – Attempt and aiding or abetting | Article 24 – Aiding or abetting and attempt | Article 41 – Aiding or abetting and attempt |
| 118. The purpose of this article is to establish additional offences related to attempt and aiding or abetting the commission of the offences defined in the Convention. As discussed further below, it is not required that a Party criminalise the attempt to commit each offence established in the Convention. 119. Paragraph 1 requires Parties to establish as criminal offences aiding or abetting the commission of any of the offences under Articles 2-10. Liability arises for aiding or abetting where the person who commits a crime established in the Convention is aided by another person who also intends that the crime be committed. For example, although the transmission of harmful content data or malicious code through the Internet requires the assistance of service providers as a conduit, a service provider that does not have the criminal intent cannot incur liability under this section. Thus, there is no duty on a service provider to actively monitor content to avoid criminal liability under this provision. 120. With respect to paragraph 2 on attempt, some offences defined in the Convention, or elements of these offences, were considered to be conceptually difficult to attempt (for example, the elements of offering or making available of child pornography). Moreover, some legal systems limit the offences for which the attempt is punished. Accordingly, it is only required that the attempt be criminalised with respect to offences established in accordance with Articles 3, 4, 5, 7, 8, 9(1)(a) and 9(1)(c). 121. As with all the offences established in accordance with the Convention, attempt and aiding or abetting must be committed intentionally. 122. Paragraph 3 was added to address the difficulties Parties may have with paragraph 2, given the widely varying concepts in different legislations and despite the effort in paragraph 2 to exempt certain aspects from the provision on attempt. A Party may declare that it reserves the right not to apply paragraph 2 in part or in whole. This means that any Party making a reservation as to that provision will have no obligation to criminalise attempt at all, or may select the offences or parts of offences to which it will attach criminal sanctions in relation to attempt. The reservation aims at enabling the widest possible ratification of the Convention while permitting Parties to preserve some of their fundamental legal concepts. | 243. The purpose of this article is to establish additional offences relating to attempted commission of certain offences defined in the Convention and aiding or abetting commission of some. 244. Paragraph 1 requires Parties to establish as criminal offences aiding or abetting the commission of any of the offences under Articles 18 and 20 of the Convention. Liability arises for aiding or abetting where the person who commits a crime established in the Convention is aided by another person who also intends the crime to be committed. Treating the offence established by Article 19 (using a victim’s services) as a form of aiding and abetting was ruled out as conceptually impossible. 245. With regard to paragraph 2, on attempt, it was likewise felt that treating the Article 19 offence as attempt gave rise to conceptual difficulties. Attempted commission of some of the acts dealt with in Article 20 was likewise considered to be too tenuous to be made an offence. Moreover, some legal systems limit the offences for which attempt is punishable. Consequently, Parties are required to make attempt an offence only in connection with the offences established in Articles 18 and 20(a). 246. As with all the offences established under the Convention, attempt and aiding or abetting must be intentional. | 161. The purpose of this article is to establish additional offences relating to aiding or abetting of the offences defined in the Convention and the attempted commission of some. 162. Paragraph 1 requires Parties to establish as criminal offences aiding or abetting the commission of any of the offences established in accordance with the Convention. Liability arises for aiding or abetting where the person who commits a crime is aided by another person who also intends the crime to be committed. 163. With regard to paragraph 2, on attempt, the negotiators felt that treating certain offences or elements of offences, as attempt gave rise to conceptual difficulties. Moreover, some legal systems limit the offences for which the attempt is punished. For these reasons paragraph 3 permits parties to reserve the right not to criminalise attempt to commit the following offences: offering or making available of child pornography, procuring child pornography for oneself or for another person, possessing child pornography and knowingly obtaining access, through information and communication technologies, to child pornography (Article 20 paragraph 1 b, d, e and f; knowingly attending pornographic performances involving the participation of children (Article 21 paragraph 1 c; corruption of children (Article 22) and solicitation of children for sexual purposes (Article 23). This means that any Party making a reservation as to that provision will have no obligation to criminalise attempt at all, or may select the offences or parts of offences to which it will attach criminal sanctions in relation to attempt. The reservation aims at enabling the widest possible ratification of the Convention while permitting Parties to preserve some of their fundamental legal concepts. 164. As with all the offences established under the Convention, aiding or abetting and attempt must be intentional. | 210. The purpose of this article is to establish additional offences relating to aiding or abetting of the offences defined in the Convention and the attempted commission of some. 211. Paragraph 1 requires Parties to the Convention to establish as offences aiding or abetting the commission of any of the following offences established in accordance with the Convention: psychological violence (Article 33), stalking (Article 34), physical violence (Article 35), sexual violence, including rape (Article 36), forced marriage (Article 37), female genital mutilation (Article 38 lit.a), and forced abortion and forced sterilisation (Article 39). 212. The drafters wished to emphasise that the terms “aiding or abetting” do not only refer to offences established by a Party in its criminal law, but may also refer to offences covered by administrative or civil law. This is of particular importance since, pursuant to Article 78, paragraph 3, Parties may provide for non-criminal sanctions in relation to psychological violence (Article 33) and stalking (Article 34). 213. With regard to paragraph 2, on attempt, the drafters felt that treating certain offences as attempt gave rise to conceptual difficulties. Moreover, some legal systems limit the offences for which the attempt is punished. For these reasons, it requires Parties to establish as an offence the attempt to commit the following offences only: serious cases of physical violence (Article 35), sexual violence including rape (Article 36), forced marriage (Article 37), female genital mutilation (Article 38 lit.a), and forced abortion and forced sterilisation (Article 39). 214. With regard to physical violence (Article 35) the drafters acknowledged that the offence as established by the Convention has a very broad scope. It also covers cases of simple assault for which an attempt is difficult to construct. Parties therefore have the discretion to establish as an offence the attempt to commit physical violence only for serious cases of physical violence. The Convention also does not preclude Parties to cover attempt by other offences. 215. As with all the offences established under the Convention, aiding and abetting and attempt must be intentional. |
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