Euroopa Inimõiguste Kohus
05.02.2008
Facts
The applicant, Mr. Ramanauskas, was a prosecutor. He was approached by an officer of a special anti-corruption police unit who offered him a bribe to secure the acquittal of a third person. Initially the applicant refused, but the offer was repeated a number of times. Once Mr. Ramanauskas agreed the officer gave the bribe to Mr. Ramanauskas. Afterwards Mr. Ramanauskas was convicted of accepting a bribe. In rejecting the applicant’s cassation claim, the Supreme Court noted that the question of incitement was of no consequence for the legal classification of the applicant’s conduct.
Complaint
Mr. Ramanauskas submitted that he had been incited to commit a criminal offence, in breach of his right to a fair trial.
Court's ruling
The Court noted that the use of special investigative methods – in particular, undercover techniques – cannot in itself infringe the right to a fair trial. However, on account of the risk of police incitement entailed by such techniques, their use must be kept within clear limits. The use of evidence obtained as a result of police incitement could not be justified as to do so would expose the accused to the risk of being definitively deprived of a fair trial from the outset. Where an accused asserts that he was incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 (1) of the Convention, all evidence obtained as a result of police incitement must be excluded.
The Court noted that police incitement occurs where the officers involved exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to provide evidence and institute a prosecution.
In the present case the Court found that the actions of the officers went beyond the mere passive investigation of existing criminal activity as there was no information that the applicant had planned to take a bribe at the first place. The officers had initiated all the meetings with Mr. Ramanauskas prompting him to take the bribe. There was also no serious examination of the applicant’s incitement plea at the judicial level, therefore the applicant’s right to fair trial had been violated.