The article discusses topical issues of the use of evidence obtained as a result of covert (investigative) search actions (hereinafter - CISA), in particular, control over the commission of a crime. An analysis of the investigative and judicial practice testifies to the ambiguous interpretation of the tactics of the CISA, which leads to the ruling of acquittals by the courts, since signs of provocation are established in the actions of law enforcement officials.
The judicial practice has not developed a unified approach to assessing the actual circumstances of control over the commission of a crime. Different interpretations are allowed by the courts of first instance and appeal.
International convention standards provide for the possibility of such measures that are effective in the fight against corruption. The European Court of Human Rights (hereinafter - the ECHR) also recognizes the legality of covert operations in the fight against organized crime and corruption. At the same time, the ECHR points to a number of signs that allow determining the legality of such actions. In particular, the ECHR identifies two groups of criteria: substantive and procedural. Some relate to the nature of the actions of both parties themselves, while others allow the court to assess and verify the procedural grounds and the procedure for conducting the operation.
Despite the fact that the Decisions of the European Court of Human Rights are considered a source of law and the courts of Ukraine are obliged to use them in legal proceedings, in practice a number of unresolved questions arise when assessing evidence. That is, whether they are reliable and proper. Alternatively, is there a provocation, that is, a criminal offense, excluding person’s accusation?
The general criteria for provocation is the repeated offer by the agent to commit any illegal actions; verbal, organizational, psychological acts aimed at provoking, an attempt to evoke compassion, pity; use of friendly ties. The very fact of expressing “abstract readiness” (to hand over an unlawful benefit) on the part of law enforcement agencies is not a provocation.
A new direction in expert practice, linguistic expertise, which solves questions of speech and law, is used in Ukraine in this category of criminal proceedings extremely rarely. Since the operational purchase, test purchase, special investigative experiment are carried out in conditions of direct establishment of interpersonal communication, the content of communication should be considered from the point of view of tactical characteristics (psychological, organizational, speech), for the presence of a call to commit illegal actions by insisting, persuasion:
– the use of nihilistic culture, the prevailing illegal practice (“Everybody does it”, “You have to live”),
– willingness to pay (“I collected money”),
– involvement in the subject’s problems, which he/she can solve with the help of illegal benefits. Using the example of a specific criminal proceeding, the author reveals the mistakes of the investigating authorities and justifies the advisability of raising the level of awareness regarding the use of the possibilities of linguistic expertise to establish signs of provocation, indicating passive corruption or the exclusion of charges.
Waffengleichheit im Vorverfahren