Provocation of a Criminal Offence: Issues of Determining the Legal Nature and Normative Model

Abstract

The article is devoted to determining the legal nature of provocation of a criminal offence and developing proposals for an optimal model of legislative regulation of criminal liability for such acts. The binary nature of provocation is established and characterised, combining the features of complicity (in the form of incitement) and involvement – quasi-lawful activity that poses an independent public danger, encroaching on relations in the sphere of justice. Two types of provocation are distinguished: official and civil. Particular attention is paid to the legal assessment of the actions of law enforcement officers in the context of the practice of the European Court of Human Rights regarding the distinction between provocation and lawful activity in documenting criminal unlawful behaviour. Amendments and additions to the Criminal Code of Ukraine regarding liability for official and civil provocation are proposed A draft of a new legal norm has been developed – Article 384-1 of the Criminal Code of Ukraine “Official provocation of a criminal offence”, in which official provocation is defined as actions by a law enforcement officer to incite a person to commit a criminal offence with the aim of subsequently bringing that person to criminal liability or blackmailing or discrediting. It is justified that the placement of this article after Article 384 of the Criminal Code of Ukraine (“Misleading a court or other authorised body”) is logical, since provocation of a criminal offence, by its generic nature, belongs to law enforcement fictions, which are essentially deception, which subsequently becomes the subject of consideration by the prosecutor (during the approval or drafting of the indictment) and the court (at the trial stage). Arguments are presented in favour of the expediency of excluding Article 370 “Provocation of bribery” from the Criminal Code of Ukraine as redundant in the presence of Article 384-1 de lege ferenda.

It is proposed to supplement Article 27 of the Criminal Code of Ukraine with Part 8 as follows: “A person who provokes a criminal offence, that is, incites another person to commit a criminal offence with the aim of subsequently bringing that person to criminal liability or blackmailing or discrediting, is an instigator. Official provocation of a criminal offence shall entail criminal liability only in cases specifically provided for in Article 384-1 of this Code”. This addition is aimed at regulating issues of the normative definition and qualification of civil provocation.