DISSENTING OPINION OF JUDGE butkevych

I regret that I cannot agree with such a decision. I am ready to share the fear that unsanctioned acts of the police, even if inspired by noble intentions, may result in gross infringements of human rights. If one considers the rights and freedoms of an individual apart from rights and freedoms of society as a whole, the conclusion must be in favour of an individual. However, bearing in mind that some rights and freedoms cannot be regarded separately because they are not absolute rights, one should weigh against the defence of an individual’s rights restrictions on those rights imposed to protect the rights of other members of society.

One should be particularly attentive in approaching the observance of such a balance when offences posing a danger for society are concerned, for example: violent transplant of human organs for gain, trade in people, forced prostitution, terrorism, unlawful trade in components of weapons of mass destruction and drug trafficking.

In the present case the applicant knew that he was committing a criminal offence. The fact that he did not know that those offering to buy the heroin from him were police officers does not change the essence of the case.

The argument that qualified “undercover agents” acted as “ agents provocateurs ”, inter alia , is unconvincing in this case. The reference in the trial documents of the national courts to “even if they were agents provocateurs ” does not mean that they were in fact “ provocateurs ”. In any society a person selling drugs without appropriate or any other necessary authorisation knows or should know that he can cause damage to third parties. Moreover, it is not difficult for him to accuse another person of being a “ provocateur ” as part of his defence. Furthermore, in such cases the legislation allows the use of “undercover agents”.

Also, in my opinion, the trial documents are not unambiguous because the national judicial bodies based their decisions exclusively on the evidence of the police officers.

I concur with those judicial decisions grounded on the facts found by the Commission. However, I cannot support the rationale for these decisions on the basis of my hesitation regarding the qualification of this paper.

[1] Notes by the Registrar

. The case is numbered 44 / 1997 / 828 / 1034 . The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[3] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.