Criteria for the legality of attracting undercover agents to investigate crimes were analyzed by scientists and practitioners

Without agents, effective investigation of corruption offenses is almost impossible. But their participation, taking into account the practice of the European Court of Human Rights, must be passive in order to completely eliminate the provocation of a crime.

Scientists and practitioners came to such a general opinion during the round table of the Ukrainian Bar Association “Secret agents and provocation of crime”. Experts of Skliarenko, Sydorenko and Partners initiated a professional discussion in the framework of the Criminal Law Committee and the process of the Ukrainian Bar Association.

The moderator of the event is the co-chairman of the Committee, partner of Skliarenko, Sydorenko and Partners, Andriy Sydorenko noted that when investigating corruption crimes in the arsenal of secret investigative (search) actions, the “favorite” of the law enforcement officers remains the use of confidential cooperation (Article 275 of the Criminal Procedure Code). In particular, the involvement of undercover agents. But their participation in the process often borders on provocation of the crime, which is unacceptable. Therefore, the issue that was the subject of discussion at the round table is of great practical importance to ensure compliance with the guarantees of a fair court in the understanding of the provisions of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The impossibility of an effective investigation of corruption crimes without the involvement of agents was emphasized by NABU freelancer Yevgeny Shevchenko, who shared his experience of exposing corrupt officials with the participants of the event. In his opinion, the institute of prohibition of provocations in corruption offenses protects criminals and is inexpedient.

The investigative judge of the Solomenskiy District Court of Kiev Viktoriya Zhovnovatyuk has a different opinion. She is convinced that the provocation of a corruption offense is an unacceptable phenomenon, and the role of an agent in this case must be passive. According to the judge, the answer to the question of whether there has been a provocation of a person to commit a crime can only be provided by evaluating the evidence base in the aggregate and relationship.

The need for legislative changes in terms of regulation of attracting an agent to criminal proceedings, as well as the need for legislative recognition of the definition of “provocation of crime” was justified by the associate professor of the Department of Administrative and Financial Law of the National University of Life and Environmental Sciences of Ukraine Anatoly Dolgopolov. According to the scientist, should also provide a separate special composition for the crime of provocation on the initiative of a law enforcement officer.

Incitement of an individual to accept unlawful gain is an objective part of the crime, stipulated in art. 370 of the Criminal Code. Andriy Trigub, an associate partner of Skliarenko, Sydorenko and Partners, recalled this. He noted that the provocation is often disguised as a voluntary message by a citizen about providing unlawful benefits with the subsequent release of this person (which is actually the agent) from criminal liability. “Therefore, the task of the court and the defense in this situation is to check the methods used by law enforcement officers for their compliance with the guarantees of the Convention and the criteria developed by the practice of the European Court of Human Rights,” the lawyer said.

The European Court of Human Rights has repeatedly mentioned in its decisions that the use of secret forces and means to combat crimes requires clear and adequate procedural guarantees of admissibility. At the same time, a public need cannot justify the use of evidence obtained as a result of a provocation. If before the use of secret means the person did not commit unlawful actions, the measures taken by law enforcement officers indicate a coercion to commit a crime, because without outside interference the crime could not have taken place (decisions in the Teixeira de Castro vs Portugal, Nosko and Nefedov vs Russia, Chokhonelidze vs Georgia cases).