On the prospects of legislative regulation of provocative behavior and its legal consequences

Abstract

Analysis of the provisions of the draft of the new Criminal Code of Ukraine regarding provocative behaviour and its legal consequences is conducted. Emphasis is made on finding out to what extent the developers of the researched document took into account achievements of the criminal law doctrine, legal positions of the European Court of Human Rights and law on covert investigative actions and other covert measures, as well as whether unification of specified behavior in the draft law will help solving law enforcement problems. The directions in which it is expedient to continue work on improvement of the corresponding provisions are defined.In particular, it is argued that definition of the concept of provocation of a crime, described in Part 1 of Art. 2.5.3 of the draft, needs to be improved taking into account that provocation of a crime does not exclude such influence on a person, which is not covered by the criminal law concept of incitement to crime.It is proved that Article 2.4.5 of the draft criminal code «Voluntary refusal of an uncompleted crime committed in complicity» should be supplemented with a part that would reflect the specifics of the voluntary refusal of the provocateur, and when finalizing section 7.4 of the draft «Crimes against Justice» it is worth to return to the issue of including the article on provocation of a crime in such section, intended for officials of law enforcement agencies.When improving part 2 of Art. 2.5.3 of the draft law on lawful conduct of law enforcement officers related to crime provocation, it is proposed to: 1) to change provision on giving a person the opportunity to commit a crime under control of law enforcement officials with a generalized wording, which will cover activities constituting various types of control over the commission of a crime as covert investigative actions; 2) to include, in such provision of the draft criminal code, a reference to operative-investigative measures carried out before criminal proceedings and regulated not by the Criminal Procedure Code of Ukraine, but by operative-investigative law.It has been proved that the project’s proposed non-application of criminal remedies to an person, who violated a criminal law ban on encroachment on the state, due to a provocation by an official of a law enforcement agency, should not be unreasonably linked to the problem of error (both legal and factual). As an option, causing damage to law enforcement interests in such situation may be recognized as a circumstance, which excludes illegality of the act.The disadvantage of the draft criminal code lies in the lack of provisions on the impact on the legal fate of the violator of the criminal law prohibition of the fact that the crime (including a crime against the state) has been provoked by another entity and not by a law enforcement officer. It has been suggested for the further discussion that commission of a crime under the influence of provocative behaviour could acquire the status of a circumstance, which reduces the gravity of the crime (rather than simply mitigates the punishment), which would correspond to the innovative approach to crime classification embodied in the draft law.