Criminal procedure concept of instigation. The ECHR perspective and comparative law

• Author: Adrian Aldea
• Position: Transilvania University of Brasov
• Pages: 155-160

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 10 (59) No. 1 - 2017

CRIMINAL PROCEDURE CONCEPT OF

INSTIGATION. THE ECHR PERSPECTIVE

AND COMPARATIVE LAW

Adrian ALDEA1

Abstract: In the actual criminal code system, the principle of fair evidence

administration is a fundamental one. Within this prin ciple, it is ruled the

prohibition of the judiciary bodies to instigate, directly or indirectly, an

individual to commit or continue to commit a criminal offence in order to

obtain case evidence. Procedural loyalty or fairness is a corrective principle

of the evidence freedom fundamental that allows usage of any evidence

means which is not prohibited by law.

Key words: instigation, police, agent, ECHR, evidence, criminal.

1. Introduction

In the Romanian procedural law, the concept of instigation to commit an offence

emerges within the analysis of the principle of fair evidence administration, which in turn,

relates to the lawfulness of the criminal trial (art.2 of the Romania Criminal Procedure

Code).

The principle of fair evidence administration is the regulation that prohibits the use of

any strategy or treatment which aims to dishonestly manage any evidence. This principle,

as it is stipulated in article 101 paragraph 3 of the Criminal Procedure Code, forbids the

judiciary bodies or any other intermediaries to instigate an individual to commit or to

continue to commit a criminal offence in order to obtain evidence.

As the internal law neither defines what is meant by the procedural notion of

“instigation” nor mentions the reason of this procedural concept, and given that its source

is represented by the ECHR jurisprudence and other state laws, I believe that for the

clarification of the concept and implicitly for a fair settlement of the case, we must

consider this source legislation, namely ECHR jurisprudence, other state laws,

comparative law and doctrine.

The reason for sanctioning the unfair behaviour of the judiciary bodies, in case of police

instigation, lies in the avoidance of any abuse of the judiciary bodies, any setup done to

an innocent individual facing an atypical, forced situation (Edwards and Lewis vs. The

United Kingdom no. 39647/98 and 40461/98, § § 46-48). The state is committed to

pursue criminal offences having been forbidden to generate offences. It is not permitted

to instigate the unsuspected individual by persistently influencing him/her.

1 Transilvania University of Braşov, adrian.aldea@unitbv.ro