Provocation of a crime in the legal positions of the European Court of Human Rights and in the national judicial system

Abstract

The legal positions of the European Court of Human Rights contain clear criteria for distinguishing provocation of a crime that violates the requirements of paragraph 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, from lawful conduct in the use of secret methods in criminal proceedings: 1) verification of the validity of the provocation (material criterion of provocation); 2) the procedure for reviewing the complaint on provocation (procedural criterion of provocation); 3) methodology of assessment of the European Court of Human Rights. When considering a defendant's complaint about the presence of signs of provocation in the actions of law enforcement agencies, national courts must establish the following procedural criteria: 1) whether there were grounds for monitoring the commission of the crime; 2) what is the measure of interference of law enforcement officers in the commission of a crime; 3) the nature of the actions to which the accused was subjected. In the legal positions of the European Court of Human Rights, examples of provocation to commit a crime are, in particular, the following: law enforcement on its own initiative contact with the applicant in the absence of objective suspicion of his involvement in criminal activity or propensity to commit a criminal offense; 2) renewal of the proposal by law enforcement officers, despite the previous refusal, to insist, exerting pressure. Based on the analysis of the legal positions of the European Court of Human Rights, it was concluded that a new presumption has actually appeared in the criminal law of Ukraine - provocation of a crime. The basis for it is Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, as well as the decision of the European Court of Human Rights in cases of provocation. The presumption of provocation of a crime is that an accused who has stated that he committed a crime under the influence of provocative actions of law enforcement officers cannot be prosecuted unless the investigation and the court establish otherwise. In national jurisprudence, courts most often considered the following situations as provocation of a crime: detection of a crime in the absence of objective information about the preparation for the commission of a crime or the beginning of its commission; inciting (pushing) a person to commit a crime through active and persistent actions; violation of the procedural order of conducting procedural actions. Keywords: provocation of a crime, provocation of bribery, incitement, initiative, exposing a crime.