The Entrapment—the judgments of European Court of Human Rights
Date Issued
2010
Date
2010
Author(s)
Huang, Ching-Shiun
Abstract
“Entrapment” is a crime investigative method that requires the use of undercover police and informants to infiltrate the criminal environment and induce the suspect to commit crimes. This method is particularly effective in combating the victimless (consensual), clandestine and organized criminal crimes. These crimes, including drug trafficking, firearms smuggling, money counterfeiting etc., are difficult to be investigated by traditional methods. However, the use of entrapment raises the concern for a breach of The Principle of Rule of Law. By the means of incitement or threat, the undercover agents may proactively force the suspects, who originally don’t have crime predisposition, to commit crimes.
In judging the legality of such investigative method, there are two formulations: subjective test and objective test. Subjective test considers the predisposition of suspects; while, the objective test emphasizes the boundary of the state’s activities. In Taiwan, judicial practices and majority of academics incline to the use of the subjective test for determining the legality of entrapment; while, there are some academics sympathetic towards the objective test. According to the analysis of recent judicial verdicts, the utilization of subjective test tends to produce a guilty verdict with insufficient and abstract reasoning. The subjective test is, therefore, needed some further adjustments.
In recent years, European Court of Human Rights (ECHR) has defined the legality of entrapment from the perspective of objective test through various cases. Based on the principle of “fair trail” in the Article 6-1 of European Convention on Human Rights, ECHR tries to define the legal confines of the state’s behaviors, and reduce the emphasis on the suspect’s predisposition. Under the consideration of ECHR, the government is required to prove the crime suspicion by obtaining concrete evidences of perpetration before entrapment. In addition, the undercover agents should not impose excess pressure on suspects, and any inducement in entrapment is subject to the supervision of independent institution. Once the government behaviors violate the principle of fair trail, no guilty verdict can be pronounced. In some cases, ECHR excluded evidences from illegal entrapment and even went so far to terminate the litigation procedure.
The convention states have followed the leading cases of ECHR on entrapment but with varying degree. In Germany, the judicial practice approves of an appropriate investigation before the use of entrapment, but the court does not accordingly adopt the legal effect suggested by ECHR, but retain its previous measurement of penalty, causing academic debates. In the United Kingdom, the court has followed the spirit of ECHR by requiring appropriate procedures before entrapment and the judge has rights to exclude the evidence and terminate the case if he finds an inappropriate entrapment.
This essay aims to provide a better solution for the legal judgment on entrapment for Taiwan’s judicial system. The essay consults not only the judicial practice and academic debates in Taiwan but also cross-examine the practices and theoretical debates in two European countries, namely Germany and the United Kingdom. The essay, therefore, is able to provide insights for Taiwanese legal system from a comparative legal perspective.
Subjects
entrapment
undercover agents
fair trial
suspect
acquittal
SDGs
Type
thesis
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