Summary

The use of informers and secret agents is one part of the arsenal of methods to which the police have access. Unfortunately the use of such methods also means barring the basic rights of persons. In a democratic law-based state, legal regulations and practice must ensure a balance between various values, and an independent court system and an effective control mechanism over surveillance activity, however, must exclude the misuse of power. The greater the opportunities that are provided to the police and other institutions dealing with surveillance in the collection of information and barring basic rights, the clearer must be the norms regulating surveillance activity and the stricter the controls over such activity.

In Estonian court practice, the nature of provoking an act, and its permissibility, has been handled by the Criminal Chamber of the Supreme Court in its decision, Case 3-1-1-110-04 of 2 December 2004. The author examines as to whether the instructions issued by the Supreme Court are in accordance with the practice of human rights as recognised in the European legal sphere. The author is of the opinion that imitating a crime in a manner that is in accordance in continental Europe with the behaviour of an agent provocateur,and in the Anglo-American system with entrapment, is in conflict with the principle of fair court process stipulated in Article 6, Paragraph 1 of the European Convention on Human Rights. The aim of imitation is to collect evidence for the purpose of solving a crime, or to find, or capture, the perpetrator of a crime, but not to encourage a crime to be committed.