Provocation of a bribe as a circumstance excluding a corpus delicti
The Criminal Code of Ukraine does not contain separate provisions on the specifics of the criminal liability of the recipient of undue gain (bribe), in the event of provocation of such actions by law enforcement agencies. However, not in every scientific and practical commentary to Art. 368 of the Criminal Code of Ukraine states: the provocation of a bribe does not exclude the guilt of one who received undue profit. The indicated doctrinal conclusion is verbatim repeated in paragraph 23 of the Resolution of the Plenum of the Supreme Court of Ukraine of 04.26.2002 No. 5 “On judicial practice in cases of bribery”.
However, according to Art. 3 of the Criminal Code of Ukraine, the legislation on criminal liability is the Criminal Code of Ukraine, which is based on the Constitution of Ukraine and generally recognized principles and norms of international law. Accordingly, in interpreting and applying the provisions of the Criminal Code of Ukraine, the norms of international treaties ratified by the Verkhovna Rada of Ukraine are subject to mandatory accounting, among which the Convention on the Protection of Human Rights and Fundamental Freedoms 1950 (hereinafter referred to as the Convention) and the decisions of the European Court on it human rights. Moreover, Art. 17 of the Law of Ukraine “On the implementation of decisions and application of the practice of the European Court of Human Rights” defines the practice of the European Court of Human Rights as a direct source of law in Ukraine.
In turn, the practice of the European Court of Human Rights (hereinafter – the ECHR) in assessing the provocation by state agents of criminal behavior by a person with the aim of further exposing the crime (see e.g. Ramanauskas v. Lithuania, 2008, Teixera de Castro v. Of Portugal (Teixeira de Castro v. Portugal, 1998), Vanyan v. Russia (Vanyan v. Russia, 2005), – significantly differs from the unconditional provisions of paragraph 23 of the Resolution of the Federal Arbitration Court of April 26, 2002 No. 5 “On Judicial Practice in Bribery Cases” .
So, in the case of using imitation of crime and using agents of law enforcement agencies, the decision of the Grand Chamber of the ECHR in the case of Ramanauskas v. Lithuania is indicative. In particular, in §56, 71 of the decision of the ECtHR Ramanauskas v. Lithuania, the following conditions are defined which are to be assessed when deciding whether the provocation of taking a bribe corresponds to. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms:
whether there was an incitement of the suspect to commit a crime; and if such incitement, according to the suspect, was to find out the reasons for the start of the police operation, the degree and nature of the participation of law enforcement in the development of the crime, and the intensity of the incitement itself;
is there any reason to believe that the crime occurred without the participation of law enforcement officials;
or there is no objective information about the conduct by the suspect of criminal activity even before the moment when the law enforcement operation to provoke a bribe was launched against him.
A positive answer to the first question, and a negative one to the second and third question, in the practice of the ECHR, are a condition for recognizing a violation of the right to a fair trial from the moment the investigation of the crime began. In turn, the law enforcement agencies imitating a crime, provided that before the start of such an imitation, the law enforcement authorities had sufficient information to suggest possible criminal activity on the part of the suspect, for example, audio recordings of conversations taken from third-party communication channels excludes violations of the Convention (see for example, a decision of the ECHR by Eurofinac v. France (Evrofinacom v. France, 2004), Bannikov v. Russia (Bannikov v. Russia, 2010). Also, there is no violation of Article 6 of the Convention if dulling occurred on the initiative of the suspect himself without intense incitement and with the passive role of a law enforcement agent (People v. Switzerland (Ludi v. Switzerland, 1992), Miliniene v. Lithuania (Miliniene v. Lithuania, 2008).
In our opinion, in the case of evidence of provocation of a bribe, in the sense described above, on the part of the person, at the initial stage of the criminal activity was already guided by law enforcement officials, there is every reason to raise the issue of the absence of suspected corpus delicti in the actions. For example, paragraph 34 of the new Resolution of the Plenum of the Supreme Court of the Russian Federation of 09.07.2013 No. 24 “On judicial practice in cases of bribery and other corruption crimes” contains the following: if the consent of the official was obtained as a result of persuading such person to receive bribes for circumstances indicating that without the intervention of law enforcement officials there would have been no intent to receive a bribe and the crime had not been committed, such actions are contrary to the law on operational search activity, and in this case in the offense committed by the official of the act of the forum.