Provocation of a crime: analysis of the case law of the European Court of Human Rights and the Supreme Court

Abstract

The article is devoted to law-making acts of the judicial branch of power on the example of judgments of the European Court of Human Rights (hereinafter - ECHR) and the Supreme Court (hereinafter - SC) on determining the presence or absence of provocation of a crime by law enforcement agencies or persons involved by them. The choice of these courts is justified by the authors from the point of view that the resolution of legal issues by the ECHR and the SC is of significant importance for criminal proceedings - the performance of procedural actions, and the adoption of procedural decisions by pre-trial investigation bodies, prosecutors, and courts of first instance and appeal. The authors of the study focus on how the ECHR and the Supreme Court define provocation of a crime, citing, in particular, examples from Teixeira de Castro v. Portugal, Ramanauskas v. Lithuania, Malinas v. Lithuania, Milinene v. Lithuania, Sequeira v. Portugal, Furcht v. Germany, Chokhonelidze v. Georgia, and others. The provisions of these judgments, along with the provisions of the procedural legislation of Ukraine, are considered in the article as objective factors, compliance with which should indicate the legitimacy of law enforcement agencies. At the same time, focusing on the provocation of a crime, the authors emphasise that the recognition of law enforcement agencies' actions as provocative also depends on the subjectivity of the court's position based on the assessment of evidence provided by the parties to criminal proceedings. It is established that the subjectivity of the ECHR and the SC is of a different nature. In particular, the consistency and coherence of the ECHR's position on provocation of a crime has been consistent and unchanged since 1998, while the SC has adopted diametrically opposite legal opinions in a short period of time. The authors come to the conclusion that the activities of courts, which are legally obliged to establish justice, to observe the principles of criminal proceedings such as the rule of law and legal certainty, in terms of changing approaches to the assessment of evidence should be strictly regulated at the legislative level.