CRITERIA FOR DISTINGUISHING CRIME PROVOCATION FROM PERMISSIBLE COVERT ACTIVITY IN CRIMINAL PROCEEDINGS

Abstract

The article examines the criteria for distinguishing crime provocation from permissible covert investigative activity in criminal proceedings. The relevance of the topic stems from the fact that covert investigative activity is the area where the need to detect latent crime most sharply intersects with the risk of artificial creation or substantial intensification of criminal intent by the State. The purpose of the article is to systematise the criteria for distinguishing crime provocation from lawful covert activity and to construct an integrated model for their legal assessment with due regard to the criminal procedural legislation of Ukraine, the case law of the European Court of Human Rights, and the legal positions of the Supreme Court. The methodological framework combines formal legal, comparative legal, systemic-structural, and functional methods. The article demonstrates that Ukrainian criminal procedure law establishes a direct prohibition of provocation in the course of control over the commission of a crime, but does not provide a complete legal test for distinguishing provocation from lawful covert activity. It is argued that decisive importance belongs to the source of initiative, the intensity of influence on the person’s conduct, the existence of prior objective information, the procedural controllability and completeness of recording of the covert measure, and the consequences of establishing provocation for the admissibility of evidence. The study of the ECtHR case law shows the evolution from a narrow prohibition of direct State-created crime to a broader assessment of the entire interaction between State agents and the person concerned, while the analysis of the Supreme Court’s practice reveals a growing emphasis on thorough judicial scrutiny of entrapment claims. The scientific contribution of the article lies in substantiating an integrated five-element model for assessing the existence of crime provocation in covert activity. The article concludes that a finding of provocation primarily entails the inadmissibility of the relevant evidence and undermines the legitimacy of criminal prosecution to the extent that it is based on a State-created criminal situation.