Prohibition to use the data obtained in consequence of crime provocation as one of the elements of the right to judicial protection and the guarantees for its realization in criminal law of the Russian Federation

The analysis of the European Court of Human Rights (ECHR) activity and the results of judicial practice in the Russian Federation enable us to conclude that there is a widespread problem in Russia connected with the use of data obtained in consequence of crime provocation as the proof of guilt of the accused. However, prohibition to use the data obtained in consequence of crime provocation is one of the elements of the right of the accused to a fair trial. The author substantiates that all elements of the right to a fair trial serve as elements of the constitutional right to judicial protection including the prohibition to use the data obtained in consequence of crime provocation. Drawing a line between crime provocation and legal operative search activity, it is necessary to rely upon the criteria formulated by the ECHR. Having analyzed the law enforcement practice in Russia, the author came to the conclusion that operative search bodies often make mistakes (commit violations) that result in inconsistency between operative search activity and the criteria formulated by the ECHR. Courts in the Russian Federation sometimes correct these mistakes but sometimes ignore them. The article identifies the basic mistakes of law enforcement bodies and courts when they use the results of provocation in order to prove the guilt of the accused; analyses the reasons for such mistakes and proposes the system of legal and organizational guarantees to minimize the number of mistakes. The guarantees include: 1) bringing the wordings and criteria of provocation and a legal investigative operation contained in the Acts of the Supreme Court of the Russian Federation into line with legal positions of the ECHR; 2) securing the inadmissibility of using the results of an investigative operation having a search character (unlike the investigative operation to document the participation of a particular person in the commission of a crime) as evidence. It is necessary to change the assessments for the activity of investigative bodies and coordinate a legal position of the Supreme Court of the Russian Federation in relation to the ad-missibility of "repeated" test purchases; 3) introduction of effective control over substantiality and order of such investigative operations as a test purchase or an operative experiment and attachment of such control to the prosecution agencies; 4) formation of a uniform judicial practice connected with the exclusion from the prosecution evidence of those results of investigative operations that have the characteristics of crime provocation; inclusion of the prohibition to use the data obtained in consequence of crime provocation and the rules for checking the applications for provocation into criminal procedural law.

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