Bannikova c. Russia

In Bannikova c. Russia befasst sich die I. Kammer des EGMR mit der Abgrenzung der unerlaubten Tatprovokation von der legitmierbaren verdeckten Ermittlung sowie mit den Anforderungen an die wirksame Geltendmachung einer unzulässigen Tatprovokation im Verfahren (EGMR Nr. 18757/06 vom 04.11.2010, 1. Kammer).

Keine unzulässige Tatprovokation liegt vor, wenn es nicht durch den Lockspitzel initiiert worden ist:

The Court observes that the applicant began to arrange the sale in question in September 2004, allegedly through a certain Vladimir, who requested her to sell him large quantities of cannabis and harassed her into that deal. Until 28 January 2005 the applicant was preparing the sale, acting as an intermediary between S., the supplier, and Vladimir. According to the applicant’s own testimonies in court, her first encounter with the FSB undercover agent B. took place on 29 January 2005, immediately before the test purchase. By that stage the FSB already possessed recordings of her conversations with S., which had taken place between 23 and 27 January 2005, concerning the ongoing drug sale. It follows from that account that the FSB agent B. stepped into the transaction when it was already under way. Therefore, as far as B.’s role is concerned, it is beyond doubt that he merely “joined in” the criminal acts rather than instigated them (Rz. 69).

Massgebend war, dass die Agenten den Testkauf erst eingeleitet haben, nachdem sie bereits konkrete Erkenntnisse über das geplante Drogengeschäft ermittelt hatten.

Die Behauptung, “Opfer” eines Lockspitzels geworden zu sein, muss in einem fairen Verfahren mit Konfrontationsrecht abgeklärt werden:

The Court reiterates that for such a plea to be effectively addressed the court would have had to establish in adversarial proceedings the reasons why the operation had been mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected (see Ramanauskas, cited above, § 71). In the present case the trial court, confronted with the applicant’s allegation that her dealings with Vladimir had been a part of the undercover operation – an allegation which was not wholly improbable – was under an obligation to take the necessary steps to uncover the truth, while bearing in mind the burden of proof falling on the prosecution to prove that there had been no incitement (ibid., § 70). It should accordingly have verified, by assessing the information in the case file and, if necessary, reviewing the relevant materials concerning the undercover operation and examining the officials and other individuals involved, whether Vladimir had been primed by the FSB to approach the applicant and ask her to sell drugs (Rz. 73).