Provocation of criminal offense: comparative legal aspect

Abstract

Within the scientific article the author makes an attempt to analyze, from the standpoint of legal comparative studies, the issue of provocation of a criminal offense, based on relevant legislative and law enforcement sources in Ukraine and some other countries.

Based on the active appeal to the previous legislative work and the development of relevant foreign experience, some prospects for improving the intersectoral institution of provocation are predicted. Relevant historical and international aspects of the issue are covered, the positions of American and European authors on determining the signs and limits of the permissibility of provocation are considered.

Based on the legal positions elaborated by the U.S. Supreme Court, cases in which persons who intended to commit a crime may be given the opportunity to carry out their illegal plan should not be considered as provocation based. In particular, only such actions of an informant (of a certain private person) aimed at inciting a person, who did not have a criminal intent to commit a crime, are considered provocative. Thus, the informant provides police with the opportunity to prosecute a person.

Analysis of most foreign regulations in the field of legal regulation of pre-trial investigation of crimes has revealed that the use of covert methods of obtaining information about crimes, perpetrators, has long been considered to characterize the level of democracy in the country. On the contrary, the transparency of their legislative regulation and implementation, the existence of statutory mechanisms of control over the proceedings makes them an effective tool for law enforcement activities of a democratic state.

It has been also demonstrated that each state is trying to establish its own, original approach to the legal assessment of law enforcement provocation.