Article 368 of the Criminal Code of Ukraine Acquittal in a Bribery Case

The court delivered an acquittal in a case against a public official accused of receiving an unlawful benefit under Part 4, Article 368 of the Criminal Code of Ukraine, having found that law enforcement provoked the offense and committed procedural violations during the pre-trial investigation.

Legal Grounds for Acquittal

The court was guided by the principle of a fair trial (Article 6 of the European Convention on Human Rights) and Article 271 of the Criminal Procedure Code of Ukraine, which explicitly prohibits provoking a person to commit a crime for the purpose of exposing them. Evidence obtained as a result of provocation is inadmissible.

Positions of the Supreme Court and ECtHR

The Supreme Court has repeatedly emphasized: if the initiative to commit a crime came from law enforcement rather than the accused, it constitutes provocation, and the evidence is inadmissible. For instance, in case No. 161/13738/16-k dated February 2, 2023, the Court clearly stated that courts must examine whether the person was incited to commit a crime.

The European Court of Human Rights (ECtHR), in the case of Ramanauskas v. Lithuania (No. 74420/01, February 5, 2008 and No. 55146/14, February 20, 2018), established criteria to identify provocation: whether the crime would have been committed without state intervention, whether the authorities acted passively, and whether there was an objective suspicion of the person’s predisposition to commit a crime.

Specific Court Decisions:

• The Supreme Court’s ruling in case No. 127/31729/13-k from December 14, 2022 emphasizes the need to thoroughly assess defense arguments regarding provocation in light of ECtHR practice.
• In case No. 185/3086/16-k from October 10, 2023, the appellate court confirmed the presence of provocation, referencing ECtHR rulings (Ramanauskas v. Lithuania, Bannikova v. Russia, Matanović v. Croatia).
• An analysis of Supreme Court decisions on white-collar crimes confirms: if the initiative came from law enforcement, this is provocation and the evidence is inadmissible.

Conclusions for Trial Participants:

Judicial practice and the norms of both international and national law exclude the use of evidence obtained through crime provocation, ensuring adherence to the principles of fair justice. This ruling further highlights the importance for the defense to carefully examine pre-trial materials for procedural violations and signs of provocation.

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