Published on 27 February 2023

THIRD SECTION

Application no. 3023/22 Peeter HELME against Estonia lodged on 10 January 2022 communicated on 6 February 2023

SUBJECT MATTER OF THE CASE

The complaint concerns alleged online entrapment of the applicant.

The applicant is a man in his forties. He was convicted of attempt of sexual enticement of children. He had over a period of time initiated several sexually loaded private chats on an Internet portal with someone who he thought was a 12-year-old girl. In fact, it was a police officer masking behind a pseudonym “Marleen12”.

The domestic courts found that the use of an undercover police agent had been lawful, and that the evidence thereby obtained was admissible. The criminal investigation had been initiated on the basis of information received by the police that various persons had used the given Internet portal to engage in chats of sexual nature with minors under the age of fourteen and had sent them files with sexual content. The use of an undercover police agent had been authorised by the prosecutor’s office and had been carried out in accordance with such authorisations. The courts found that given the hidden nature of such crimes it was justified and proportionate to use an undercover police agent. Such offences were often committed in a manner that made their discovery complicated. Moreover, the offenders were likely to take measures to destroy any relevant evidence of such offences. The domestic courts also found that the police agent had in no manner provoked the applicant and that it had been the latter who had initiated the chats. It was also found, based on the manner in which the online portal operated, the username that the police agent had used and the content of the chats between the applicant and the police officer that the applicant must have indeed thought that he was chatting with a twelve-year-old girl.

The applicant complains of a violation of his fair trial rights under Article 6 § 1, alleging that he – who had no criminal background – was unlawfully entrapped.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention (see, for example, Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 53-61, ECHR 2008; Ramanauskas v. Lithuania (no. 2) , no. 55146/14, §§ 52-62, 20 February 2018; compare Eurofinacom v. France (dec.), no. 58753/00, 7 September 2004)? In particular,

(a) What was the preliminary information based on which the police instituted criminal investigation against the applicant?

(b) Was the applicant incited to commit the offence?

(c) What were the procedural safeguards in place under domestic law when deploying undercover police agents, and how where they applied in the case at hand?

(d) Did the application of procedural safeguards concerning the use of undercover police agent take into account (or should it have taken into account) the online nature of the offence in question?

2. The Government are invited to submit documents concerning the prosecutor’s request(s) under Article 126 9 of the Code of Criminal Procedure to authorise the use of an undercover police agent in the present case and a subsequent authorisation decision(s). The Government are also asked to submit the records of the online chats between the applicant and the undercover police officer.