ROLE OF THE COURT IN EXAMINING CRIME PROVOCATION (ENTRAPMENT) COMPLAINTS

Abstract

This article provides an extensive analysis of one of the guarantees under the right to fair trial – prohibition of crime provocation (entrapment), and the role of the court in the process of examining complaints related to the crime provocation (entrapment complaints).

The article provides a brief overview of the European Court of Human Rights (hereinafter: ECtHR) case law related to the crime provocation, a summary of basic principles of the Court and the approaches for revealing the essence of the prohibition of entrapment.

The European Court examined the entrapment complaints based on substantive test and procedural test.

Under the substantive test, the ECtHR assesses whether the government representatives acted “in an essentially passive manner”, whether without their involvement the subject would commit the crime concerned, and, accordingly, ascertain if the entrapment actually took place.

Under the procedural test, the ECtHR assesses the procedure of national courts for examining the entrapment complaint. The Court requires the procedure in question to be adversarial, thorough, comprehensive and conclusive on the issue of crime provocation. The burden of proof to rebut the entrapment complaint is on the prosecution. Herewith, the ability of the prosecution to successfully carry this burden of proof does not excuse national courts from their obligation to effectively examine the entrapment plea.

The present article also analyses the legislative framework of Georgian Courts for examining the entrapment complaints. In addition, the article provides assessment of the interdependence of the laws governing the conduct of operative-investigative activities and the effective examination of the entrapment complaints by the courts. In this regard, the first Georgian case examined by ECtHR – Chokhonelidze v Georgia – is also discussed below.

In the end, the article offers a conclusion that Georgian legislation and legal practice (especially considering the decision of the Constitutional Court of Georgia dated September 29, 2015) allow Georgian courts to be proactive and assess the issues necessary for the examination of the entrapment complaint upon their own initiative. Such an initiative on the part of the courts should not bedeemed a violation of the principle of adversarial process under the Criminal Procedure Code of Georgia since in this case, the initiative serves the purpose of providing the defendant with an opportunity to enjoy the fair trial right.

Herewith, the article assesses significant gaps and shortcomings in Georgian legislation – absence of the notion of crime provocation or entrapment, non-existence of proper judicial or prosecutorial supervision over the operative-investigative activities that are “vulnerable” to entrapment, as well as the legislative restriction to access the information obtained in result of such operativeinvestigative activities, which quite frequently makes it impossible for domestic courts to effectively examine the entrapment complaint.