DISSENTING OPINION OF JUDGE YUDKIVSKA

The first known entrapment defence in history failed – the Lord God did not forgive Eve for eating the forbidden fruit from the tree of the knowledge of good and evil, and for giving Adam its forbidden fruit to eat, despite Eve claiming that she had been provoked by the serpent: “The serpent beguiled me, and I did eat” [2] .

Millennia later, legal doctrine considered the manipulability of human nature and the authorities’ enormous resources to influence an individual and convince him or her to become a criminal, and came to the conclusion that investigative authorities should not test the ability of a person to resist the temptation to commit a crime if the opportunity was offered to him or her. A person’s free will can be undermined and manipulated, and thus he or she cannot be held responsible for acts committed when his or her will has been manipulated. This is called “entrapment”.

Investigative tactics, including provocative ones, might be used to clear a crime but not to create one. Legal doctrine and extensive jurisprudence, including the case-law of this Court, have made a clear distinction between “permissible conduct in the use of legitimate undercover techniques in criminal investigations” (since “the use of investigative methods – in particular, undercover techniques – cannot in itself infringe the right to a fair trial” [3] ) and entrapment, the latter constituting a breach of Article 6 § 1 of the Convention [4] .

I dissent in the present case since I fail to see it as falling within the category of “entrapment cases”.

In this case the applicant wanted to kill S., with whom he had had a long-lasting conflict. Initially, in 2007, he contacted Ch. to seek his assistance in beating S. However, several years later, after having lost all his court cases against S., his anger apparently turned into obsession and he explicitly requested Ch. – as was established in the domestic proceedings – to find contract killers to murder S. Thus, it is clear from the facts of the case that it was the applicant who had first solicited Ch.’s help in murdering S. The criminal design thus originated in the applicant’s mind, and not in the mind of the law-enforcement authorities. The police only intervened because they had a reasonable suspicion based on the applicant’s wish for S to be killed, and they merely “opened a door for him” – giving him the opportunity to go through with something he had originally intended to do – but did not push him out (compare Rymanov v. Russia [5] , where the Court held that “the applicant took a proactive stance in the criminal undertaking, without any intervention from the police, and thus revealed a pre-existing intent to commit crime”). In other words, they opened a door for him, and nobody entrapped him into hiring a killer.

Likewise, it cannot be said that the applicant was tempted or induced to commit a crime (inciting a murder) which he had not otherwise intended to commit. He was convicted for “instigating” the contract murder: the domestic courts found that the applicant had hired I., who turned out to be an undercover agent introduced to him by Ch., discussed the details, including his alibi, and paid I., in part before the “murder” and in full after the staged photograph of S.’s “dead body” was presented to him. The domestic authorities thus considered that the applicant, “by way of persuasion and bribery, induced I. to commit the offence” (see paragraph 13 of the judgment).

Although in the recorded conversations, I. and Ch. “appeared to have displayed a more active attitude” (see paragraph 52), entrapment does not exist if the law-enforcement officials merely afforded someone an opportunity to commit a crime. Offering services to carry out a murder, as well as discussing further practical details, cannot be said to be entrapment. An individual who did not intend to incite a murder would never be interested in these services.

The majority, however, did agree that I.’s and Ch.’s apparently “more active attitude” could not be a major factor given that the applicant was convicted only as the “instigator”. The sole point that made them unable to “establish definitively, on the basis of the substantive test alone, whether the applicant was subjected to incitement”, was the applicant’s “seemingly non-committal and vague answers” and “remarks which could be interpreted as him expressing hesitations about either the entire criminal scheme or some of its aspects” (see paragraph 49 of the judgment). In particular, reference is made to the conversation quoted in paragraph 11 (ii) (a) of the judgment.

The relevant part of the conversation is the following ( emphasis added, and the applicant’s words that made the majority believe in his “non-committal” attitude are underlined ):

“I.: And well let’s... I am just talking to people. Well, you understand. I will just get down to business... Shall I bring you his ear, his head? A photo will be enough .

A.: There is no need, there is no need for anything . Serezha, don’t...

I.: I’m just a person who...

A.: There is no need .

I.: Listen, let’s... Listen, listen, let’s, listen...

A.: He would call me the same day and say... you understand.

I.: Yes, we would meet, you will understand and that is all. We will sort it out.

A.: Calm down. There is no need for any of this . I will know about it for sure, I’d be the first [to know ] . I did nothing, but they say that I tried to stab him... He lodged a complaint against me with the prosecutor...”

It is clear here that the applicant’s “there is no need” remarks are a reply to I.’s “kind” proposal to bring him S.’s ear or head as proof that the murder has been completed. The applicant merely said that he did not need that kind of proof. The further conversation and the applicant’s plea to “calm down” in relation to providing any proof of the murder explain why he did not need any sort of proof that the murder had been carried out – if S. was dead, the applicant would be the first to find out.

In a further fragment, the applicant’s remark “don’t do anything, don’t say anything” is a reply to I.’s unwearying efforts to provide him with an account of the completed murder:

“I.: Wait Oleg, I am just explaining it to you. If I do it today, let’s say, I would come tomorrow and say ‘Oleg, the work is done’ .

A.: Don’t do anything, don’t say anything. We... That’s all.”

As explained above, the applicant did not need any proof of the murder coming from I., and his remarks did not indicate his “non-committal” attitude to the incitement. The majority indeed viewed the above remarks differently, as can be seen from paragraph 50 of the judgment. The remainder of the conversation concerned the organisation of the applicant’s alibi and the practical arrangements for I.’s remuneration, which further reinforces the applicant’s active involvement in the crime.

Police provocation presupposes a causal relation between the agents’ acts and the criminal actions of the defendant. A person who initiated a crime himself cannot be said to have been provoked to commit it. In a similar vein, in the case of Trifontsov v. Russia [6] , the applicant’s complaint that he had been incited to take a bribe was rejected by the Court, as it was established that the person who could be considered a “police agent” had become such an “agent” only after the applicant had solicited a bribe; and in the case of Sequeira v. Portugal [7] the Court found that the police informers “began to collaborate with the criminal-investigation department at a point when the applicant had already contacted A. with a view to organising the shipment of cocaine to Portugal”. The applicants’ complaints in this regard were declared inadmissible.

This present complaint should equally be declared inadmissible if the Court is to remain consistent with its approach in cases concerning entrapment. As it has stated in many cases (see, for instance, Bannikova v. Russia [8] ), “closely linked to the criterion of objective suspicions is the question of the point at which the authorities launched the undercover operation, i.e. whether the undercover agents merely ‘joined’ the criminal acts or instigated them”. In the present case – as was proved in the domestic judicial proceedings – Ch. reported to the police the applicant’s request to find a killer, and that triggered the police operation. The police thus clearly “joined” the ongoing crime and “their actions thus remained within the bounds of undercover work rather than that of agents provocateurs ” [9] .

For the above reasons, in my judgment, the domestic courts rightly did not consider the applicant’s entrapment defence plausible: the authorities investigated the reported crime in an essentially passive manner and did not persuade the applicant to commit a crime (that is, instigating a murder) that otherwise would not have been committed. The applicant’s allegations in this respect were “wholly improbable” (however restrictive this clause is [10] ), and should have made it unnecessary for the majority to proceed with the “procedural test of entrapment” – the examination of the way the domestic courts dealt with the applicant’s entrapment plea.

Referring to the malleability of human nature, one might imagine that an allegedly corrupt official can be “provoked” or “induced” to take a bribe from a particular person for a particular action, or that a drug dealer can be “induced” to sell drugs to a police agent. The same concerns a contract killer – an agent provocateur can easily “create” a crime by proposing to pay someone who makes his living from that activity to commit a murder. Therefore, “the most objectionable feature” of entrapment is “that the government, by using encouragement, is no longer in a neutral position vis-à-vis its citizens and the choice that they make. Rather than giving an individual full freedom to comply with the law, and thereby respecting the individual’s autonomy and ability to avoid crime, by offering the encouragement the government tries ... to persuade the individual to violate the law” [11] .

On the other hand, it is hard to imagine that someone can be “induced” or “encouraged” or “persuaded” to incite and pay for a murder that he never envisaged. Deprivation of a human life is, to use Leo Tolstoy’s words, “the last most terrible crime, the most repugnant to any not completely depraved human heart” [12] , so I am unable to believe that the authorities’ omnipotence in manipulating people’s minds goes so far as to be able to turn an innocent person into a murderer by way of simple persuasion.

Having disagreed that in the present case the applicant was subjected to incitement contrary to Article 6 of the Convention, I must admit, however, that every cloud has a silver lining – this is the first judgment against Ukraine concerning entrapment, and the detailed explanation of the principles relating to police incitement, the tests required and the necessary criteria to address any entrapment plea effectively will serve, I hope, as an important guide for the national courts.

[1] The agent’s first name was Sergey. In the relevant recordings he is sometimes referred to by the diminutive form of that name, Serezha (see paragraph 11 (ii) below).

[2] Genesis 3:13.

[3] Ramanauskas v. Lithuania [GC], no. 74420/01, § 51, ECHR 2008.

[4] See the case-law referred to in the draft and “Guide on Article 6 - Right to a fair trial (criminal limb)”, pp 45-48, https://www.echr.coe.int/documents/guide_art_6_criminal_eng.pdf

[5] (Dec.), n o. 18471/03 , 13 December 2016.

[6] (Dec.), no. 12025/02, § 32, 9 October 2012.

[7] ( Dec.), n o. 73557/01, ECHR 2003-VI.

[8] No. 18757/06, § 43, 4 November 2010.

[9] See, for instance, Mili nienė v. Lithuania , no. 74355/01, § 38, 24 June 2008.

[10] For a criticism of the “ not wholly improbable” clause, see the concurring opinion of Judge Kūris in Ramanauskas v. Lithuania (no. 2) , no. 55146/14, 20 February 2018.

[11] Jonathon C. Carlson, “The Act Requirement and the Foundations of the Entrapment Defense”, 73 VA. L. REV. 1011, 1063 (1987), p. 1086.

[12] Leo Tolstoy, I cannot be silent (1908).