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The ECtHR on the Limits of Police Incitement

The European Councils information Centre in Tallinn

The CoE Information Office in Tallinn http://www.coe.ee

Thinking of the seminar on EU accession to European Convention on Human Rights that took place from 2 to 3 February 2010 in Madrid, and after a Caffee Latte at Vilde (the place exercises re-use policy towards serviettes – for the sake of rainforests?), on Tuesday evening, I started to translate the decision (of  5 January 2010) of the European Court of Human Rights as to the admissibility of Application no. 7157/05 by Aleksey Vayser against Estonia, into the Estonian language. The applicant complained that he had been the victim of unlawful police incitement – The question arose, whether the police collaborator could be viewed as an agent provocateur.

The applicant argued that under the Estonian Surveillance Act (Jälitustegevuse seadus) the surveillance procedure could be started if there was information – and if this information was insufficient to initiate a pre-trial criminal investigation – concerning a criminal offence in the first degree being prepared or committed or having been committed, or concerning a criminal offence in the second degree having been committed intentionally, if the latter carried a sentence of at least three years’ imprisonment. Thus, there had to be sufficient information that an offence was being planned or committed. However, in the present case no offence had been being planned or committed and the criminal offence had been simulated without the existence of any of the information required by the Surveillance Act, such information having only been created by way of the simulation. Accordingly, there had been an incitement and there was good reason to believe that without it no offence would have been committed. He also reiterated that the simulation of the offence should have been considered as a mitigating circumstance.

The ECtHR agreed on account of the risk of police incitement (entailed by techniques), that it must be kept within clear limits. The ECtHR further explained that police incitement occurs where the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution. Concerning the particular case, the ECtHR was of opinion that it was the applicant who had hinted at an option to commit a crime, saying to the person who later collaborated with the police, Zh., that there were „possibilities“ if they found a „common language“. When Zh. informed the police thereof, this information was considered sufficient to open a criminal investigation. It was already in the context of the criminal investigation that the police sought authorisation for the simulation of the offence of bribery. The ECtHR considered the complaint manifestly ill-founded, which must be rejected in accordance with Article 35 §§ 3 and 4 of the ECHR.

The ECtHR inter alia explained the principle of exhaustion of domestic remedies in this case – The ECtHR noted at the outset that the views of the parties differed as to whether the domestic remedies had been exhausted. The ECtHR reiterated that the purpose of the requirement of exhaustion of domestic remedies (Article 35 § 1, ECHR) was to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the ECtHR. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The requirement of exhaustion of domestic remedies does not mean merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law; and, further, that any procedural means which might prevent a breach of the Convention should have been used (see Cardot v. France, 19 March 1991, § 34, Series A no. 200, with further references).

The ECtHR noted that there were no dispute that the applicant appealed up to the Supreme Court, thus having had recourse to the available remedies. However, the ECtHR observed that there was no indication that he raised the issue of incitement in the first-instance court. In his appeal the simulation of the offence was only mentioned as a mitigating circumstance in the context of the sentence; it was noted in that context that without simulation the offence might not have been committed. Thus, it can be well understood that the City Court and the Court of Appeal did not deal specifically with the question of incitement later invoked by the applicant. It was only in his appeal to the Supreme Court on points of law that the applicant argued that the simulation was unfounded in the light of the criteria set out in the Surveillance Act; he then added that without active incitement he would not have committed the offence. The ECtHR doubted, whether it could be said that the domestic remedies had been exhausted in the present case as the arguments advanced by the applicant in the domestic, proceedings seemed to have differed from those he made before the ECtHR (compare Cardot v. France, 19 March 1991, cited above, and Ahmet Sadik v. Greece, 15 November 1996, § 33). However, the ECtHR did not find it necessary to determine whether or not the domestic remedies were exhausted in the present case as the complaint had to be declared inadmissible, in any event, for the reasons given below.

Earlier translations of the decisions of the ECtHR into the Estonian language are available at the Council of Europe’s Information Office in Tallinn website at http://www.coe.ee

Before I started with translation of the referred afore case on the 2nd of February, I successfully presented the 75 % e-version of the course „Legal Remedies in Europe“ that I read at the University of Tartu. The presentation should be available at http://www.ut.ee/591542



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