Back Argentina

Status regarding Budapest Convention

Status regarding Budapest Convention

Status : Party Declarations and reservations : No declarations. Reservations regarding Art. 6, Art. 9, Art. 22, Art. 29. See legal profile

Cybercrime policies/strategies

The Information Technology National Office has adopted a cyber security strategy by the Disposition 3/2013 (27/8/2013).

There is an Open Government Action Plan 2013-2014 developed in the framework of Decree no. 996/2016 (Digital Agenda), discussing policies for Information Society Development, E-Government and public services, Citizen participation and access to public information, National Plan of Information Critical Infrastructures and Cybersecurity (ICIC) and Healthy Internet.

There is also a National Programme of Cyber Security and Information Critical Infrastructures in the Chief of the Cabinet of Minister’s Office.

Cybercrime legislation

Substantive law

  • In 2008, Argentina adopted a binding legal text introducing at the domestic level criminal infringements, Law 26.388, enacted on 24 of June of 2008 (B.O. 25/6/2008). The legislative political option was to amend the existing Penal Code, adding to some of the existing types of crimes some details, to cover also the “cyber side”. The general idea of this legal text was to adequate domestic law to the new criminalities, making adjustments and even small changes to classical crimes.

This law largely implements the Budapest Convention’s provisions. In general terms, most types of crimes described under the Convention are also qualified as criminal infringements under the Penal Code. Illegal access and illegal interception are qualified as crimes, as are data and system interference. The law describes as crimes forgery and fraud, both of them covering all acts respecting computer environment. Regarding child pornography, most of the provisions of the Convention are covered by Argentinean law, though it was not considered, under the Penal Code, mere possession of child pornography. There was a similar approach respecting provisions of Article 6 of the Convention – Misuse of devices. Penal Code does not cover some statements concerning the mere possession of devices. These exceptions are based on the regular positions of the Constitutional Court of Argentina. The law does not include the generic list of definitions, as it results from Article 1 of the Convention.

Source: http://www.infoleg.gov.ar/infolegInternet/anexos/140000-144999/141790/norma.htm

 

  • In 2013, law nº 26.904 amended the Penal Code, including grooming as a crime.
  • Accession Act to Budapest Convention adopted in December 2017.
  • The new Criminal Procedure Code of 2019 introduced limited powers of preservation, search/seizure and interception.

Procedural law

Argentina is a federation composed of 23 Provinces and the city of Buenos Aires. In accordance with the Federal Constitution, the criminal code is a federal matter, but procedural law depends on legislative power of each Province.

The Criminal Procedure Code currently in force (Decreto 118/2019) does not include specific rules regarding cybercrime as it applies to all types of crimes, nor does it mention specific rules regarding digital evidence. It includes specific rules with respect to electronic communications interception (art. 150).

In Argentina, the freedom of evidence applies and so these rules are applied by analogy to the different situations involving digital evidence, although there are practical difficulties related to their application, which underscore the need to introduce amendments.

Source: http://www.infoleg.gov.ar/infolegInternet/anexos/0-4999/383/texact.htm

 

Further reform of procedural law underway.

Safeguards

General rules and safeguards apply (National Constitution and Human Rights Treaties incorporated into the Constitution, CN, 75, 22). There are no particular rules on cybercrime. Nevertheless, CN, 18 applies to evidence. Thus, procedural law requires for judge intervention to authorise certain procedural measures if (especially referring to right of privacy) constitutional rights are straitened (interception of communications, e-mails, obtaining traffic data).

Related laws and regulations

Specialised institutions

(Source: http://www.fiscales.gob.ar/procuracion-general/wp-content/uploads/sites/9/2014/09/PGN-2035-2014-001.pdf)

  • The General Prosecutor of Buenos Aires City set up a “Prosecution Team” specialized in computer crimes in the city of Buenos Aires. This team prosecutes crimes related to computer systems or software (computer damage) attacks and child pornography (distribution and production of child pornography).
  • The Federal Police, state polices and other security forces have incorporated special cybercrime investigation units. These units investigate and provide assistance to judicial authorities and prosecutors. For example, the Federal Police’s “Technological Crimes Division”; the Metropolitan Police’s (in Buenos Aires City) “Telematics Investigations Special Unit”; or the “Judicial Investigators Unit” in Buenos Aires City’s judicial system.
  • National Cybersecurity Direction under the Cabinet of Ministers works on developing strategies and mechanisms for the protection of information and services of the National State and its citizens and on coordinating incident management at the national level (including cybercrime-related incidents).
  • Ministry of Security offers annual Cybercrime courses for middle-ranking officers of the four federal forces, the Judicial Investigation Corps of CABA and the National Directorate of Criminal Intelligence (DNIC).

International cooperation

Competent authorities and channels

No special international cooperation authorities or channels regarding cybercrime are appointed in Argentina, the traditional international cooperation rules are applied. Nevertheless, the police special units link up special units in other countries and INTERPOL network.

Especially regarding child pornography, a cooperation agreement is in force between Buenos Aires’ General Prosecutor and National Center for Missing and Exploited Children (NCMEC) that enables efficient cooperation.

Practical guides, templates and best practices

The international cooperation on criminal matters in Argentina, is based on the Law on International Cooperation in Criminal Matters, No. 24.767. It sets out the procedural rules applied to every international judicial assistance and extradition requested. Whether Argentina has no binding treaty with the requesting State, the law regulates the conditions under which the cooperation should be granted.

Argentina signed several bilateral and multilateral cooperation treaties in criminal matters, though neither referred specifically to cybercrime.

Jurisprudence/case law

  • Argentina's Supreme Court declared unconstitutional the data traffic retention law. By means of similar arguments as those adopted by the German and Romanian Court, on February 24, 2009, upheld the unconstitutionality of the law 25.873 that forced telecommunications providers companies to preserve for 10 years the users' personal data, communication traffic data as well as capture and referral communications, for the purpose of preserving the data in case, eventually, it might be required by the public prosecutor or the judiciary in criminal cases investigations. The law was declared unconstitutional for violating the right of privacy and the protection of communications which may only be restricted by a court order in individual cases. The law does not distinguish these particular cases, neither the judicial order rule. Moreover, the Supreme Court states that the traffic data it is tied to the content data, so that both are protected by the right of privacy. The Parliament never passed a new law solving the issues posed by the Supreme Court.
  • The "Cámara Nacional de Casación Penal", Sala IV (Casation Court), on March 22, 2013, upheld a conviction for threats and coercion, on the basis of the content of an email.  The court analysed the chain of custody of the notebook. The sentence states that if a notebook sealed in an envelope is opened in front of witnesses and an actuary it is appropriately protected. It states, as well, that information held in the notebook that was copied bit for bit it is a true copy of the original disk.
  • CSJN fallo R.522.XLIX “Rodríguez, María Belén c/ Google Inc. s/daños y perjuicios"

Supreme Court’s sentence regarding ISPs liability (in particular search engines) for illegal contents or images rights affecting. Though it is not a criminal law case it might be interesting due to the issues addressed in, such as freedom of speech and limits to ISPs liability.

The Supreme Court’s hearing might be interesting too: http://www.youtube.com/watch?v=Bxlikawvc-I

Sources and links

Print Argentina
Tools on Cybercrime & Electronic Evidence Empowering You!

These profiles do not necessarily reflect official positions of the States covered or of the Council of Europe. 

Contribute

  Are you aware of the latest legislative or policy developments on cybercrime and electronic evidence?

  Share this information with us helping to keep this platform up to date.

Useful links