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Section VII.4 – On offences in the field of data processing. (L. 15 July 1993) Article 509-1. (L. 14 August 2000) 4 Anyone who has fraudulently gained or maintained access to all or part of an automated data processing or transmission system shall be punished by two months to two years of imprisonment and/or a fine of 500 to 25 000 euros. When this access results in the deletion or alteration of data contained in the system, or in impairment of its operation, the term of imprisonment shall be four months to two years and the fine 1 250 to 25 000 euros. Article 509-2. (L. 15 July 1993) Anyone who deliberately or in contempt of the rights of others has impeded or tampered with the operation of an automated data processing or transmission system shall be punished by three months to three years of imprisonment and/or a fine of 1 250 to 12 500 euros. Article 509-3. (L. 14 August 2000) Anyone who deliberately or in contempt of the rights of others has directly or indirectly fed data into an automated processing or transmission system or deleted or altered the data which it contains or the methods of processing or transmitting such data shall be punished by three months to three years of imprisonment and/or a fine of 1 250 to 12 500 euros. Article 509-4. (L. 10 November 2006) Where, in the cases contemplated in Articles 509-1 to 509-3, money or monetary value has been transferred so as to cause a third party a loss of possession with the aim of securing an economic advantage to the person committing the offence or to any other person, the penalty incurred shall be four months to five years of imprisonment and a fine of 1 250 to 30 000 euros. The same penalties shall apply to persons who have produced, received, procured, held, sold or transferred to a third party software intended to make an offence referred to in the foregoing sub-paragraph materially possible. Article 509-5. Repealed (L. 14 August 2000). Article 509-6. (L. 15 July 1993) An attempt to commit the offences provided for in Articles 509-1 to 509-5 shall be punishable by the same penalties as an actual offence. Article 509-7. (L. 15 July 1993) Anyone who has participated in an association or conspiracy formed for the preparation, effected by one or more material acts, of one or more offences prescribed by Articles 509-1 to 509-5 shall incur the penalties prescribed for the actual offence or for the most severely punished of the potential offences. 3. Do you plan to introduce new legislation to counter terrorist misuse of cyberspace? What are the basic concepts of these legislative initiatives? At the present stage it is not planned to adopt new statutory provisions, particularly because the cases met with in practice have not revealed any legislative deficiencies.
5 4. What are the existing national practices in the field of detecting, monitoring and closing down websites used for illicit, in particular, terrorist purposes and what kind of national procedures allow the blocking of access to web sites or pages considered illicit? As regards the detection and monitoring aspect, reference is made to the reply to question 1. It is possible to close down websites based in Luxembourg if the publications posted on them constitute criminal offences. Closure is the measure designed to put an end to the offence. Closure is thus possible during the phase of court investigation on the investigating judge’s order. If the site is located abroad, a request for judicial assistance must be made by Luxembourg, and the outcome depends on the decisions taken by the competent authorities of the requested country. Where Luxembourg is the requested country, it suffices that the offence charged also constitutes an offence under the law of Luxembourg. 5. What are the existing national practices in the field of interception of, or infiltration to, the electronic correspondence (e.g. e-mail, forum, instantaneous message service, voice over IP -skype, etc). National practices are determined by law (Code of Criminal Investigation), the relevant excerpt from which is reproduced below, at the end of this reply. From a statutory standpoint, Luxembourg has an instrument suited to present-day technical possibilities. It is self-evident that in practice, the police – and the State intelligence service as the case may be – are faced with the same technical problems as the corresponding departments of other states, in particular the rapid development of technology, efficient encoding tools, etc. Section VIII. - Special surveillance measures. Article 88-1. (L. 26 November 1982) The investigating judge may, as an exceptional measure and by a decision expressly substantiated according to the facts of the case and with reference to the conditions stated below, order the use of technical devices for surveillance and monitoring of all forms of communication, if: a) the criminal proceedings concern an act of particular gravity carrying a maximum criminal sentence of two years or more of imprisonment, and if b) established facts bring the person subject to surveillance under suspicion either of having committed or participated in the offence, or of receiving or sending information intended for or originating from the person charged with or suspected of the offence; and if c) the ordinary methods of investigation prove ineffective owing to the nature of the facts and the special circumstances of the case. The measures ordered shall be lifted once they are no longer necessary. They shall cease automatically one month after the date of the order. They are nevertheless subject to extensions of one month each, although the total duration may not exceed one year, by reasoned order of the investigating judge, approved by the presiding judge of the chamber of the court of appeal who is to rule within two days after receiving the order, the state counsel general’s submissions having been heard. These measures cannot be ordered in respect of a person charged after his or her first interview with the investigating judge, and any such measures ordered earlier shall automatically cease to operate at that date. These measures cannot be ordered in respect of a person who is bound by professional secrecy within the meaning of Article 458 of the Penal Code, unless personally suspected of having committed or abetted the offence.
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