CCPR/C/145/D/3247/2018

GE.26-05343 (E) 120526 130526

Human Rights Committee

Views adopted by the Committee under the Optional

Protocol, concerning communication No. 3247/2018*, **, ***

Communication submitted by:

Alina Burlaku (not represented by counsel)

Alleged victim:

The author

State Party:

Russian Federation

Date of communication:

19 August 2018 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State Party on 21 December 2018 (not issued

in document form)

Date of adoption of Views:

10 March 2026

Subject matter:

Police entrapment; lack of fair trial

Procedural issues:

Exhaustion of domestic remedies; substantiation

of claims

Substantive issues:

Fair trial; inhuman treatment; lack of effective

remedy

Articles of the Covenant:

2 (3), 7 and 14 (1) and (3) (b), (e) and (g)

Articles of the Optional Protocol:

2 and 5 (2) (b)

1.

The author of the communication is Alina Burlaku, a national of the Republic of

Moldova born in 1993. She claims that the Russian Federation has violated her rights under

articles 2 (3), 7 and 14 (1) and (3) (b), (e) and (g) of the Covenant. The Optional Protocol

entered into force for the State Party on 1 January 1992. The author is not represented by

counsel.

Factual background

2.1

In March 2014, a man called “Yakov” contacted the author on social media. They met

a few times and started communicating regularly before Yakov claimed financial troubles

and told her about a rich English lord, who wanted to meet a girl for a serious relationship.

He asked the author for help in finding a girl, for a fee, which they would split. Yakov said

* Adopted by the Committee at its 145th session (2–19 March 2026).

** The following members of the Committee participated in the examination of the communication:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,

Carlos Ramón Fernández Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly

Ndiaye, Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Tijana Šurlan,

Teraya Koji and Hélène Tigroudja.

*** An individual opinion by Committee member Hélène Tigroudja (concurring) is annexed to the

present Views.

United Nations

CCPR/C/145/D/3247/2018

International Covenant on

Civil and Political Rights

Distr.: General

13 May 2026

Original: English

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that a representative of the lord, named “Arthur”, was dealing with all the logistics. The

author refused, saying that she would not be able to find a girl willing to go to England.

Yakov kept insisting and, at some point, suggested that she lie to Arthur, assuring her that

Arthur would not reclaim the money if the girls later refused to go. On this condition, the

author agreed to meet with Arthur.

2.2

On 22 May 2014, Arthur called the author, after Yakov’s preliminary call. The author

met with Arthur (undercover police agent G) on the same date. Their conversation was

recorded. Arthur asked the author whether she had met their mutual acquaintance and showed

her on his phone the pictures of the girls sent by the author to Yakov. They agreed to meet

on 27 May 2014, and the author promised to come with the girls.

2.3

On 27 May 2014, the author met Arthur again, bringing four girls who had answered

her social media post. She told the girls that the lord’s assistant would be holding a casting

and asked them to wait in a park. Only one of the girls had the necessary travel documents

or intended to travel to England. They had come mainly for the chance of modelling work or

out of curiosity. The author never asked for their documents. Although she knew that the

girls would not travel to England, the author nevertheless assured Arthur that they would and

accepted the payment. After that, Arthur offered a lift to the author and the girls. When the

author and two of the girls got into the car, the author was detained by the police, and the

girls were told that they had just been “sold”.

2.4

The author was taken to a police station. She was charged under article 127.1 (2) (a)

of the Criminal Code with trafficking in persons. The author was interrogated on 27 May

2014. On 28 May 2014, after spending a night in poor detention conditions, and in the absence

of a lawyer, she had to sign the record of her interrogation. Although the author noticed some

inaccuracies in the record, where it did not reflect her statements given on 27 May 2014, she

signed the document, thinking that it would not have legal effect since she had done so

without a lawyer.

2.5

On 15 September 2014, the author had a face-to-face confrontation with police officer

G (“Arthur”), during which he denied any knowledge of Yakov. He said that the author’s

name and phone number had been received from the main police directorate as part of

operational information that had served as the basis for an “undercover operation” and an

“undercover infiltration”, two covert investigative measures.

2.6

On 8 October 2014, to prove that she had been in communication with Yakov, the

author requested the investigator to retrieve relevant information from her mobile phone,

which had been taken from her by the police upon her detention, and to retrieve the call

history details from the telephone company. She indicated the approximate dates and timing

of Yakov’s and Arthur’s calls. She also requested the police to establish Yakov’s identity and

to call him in for questioning and for a face-to-face confrontation.

2.7

On 16 October 2014, the Tagansky District criminal investigation unit denied the

author’s request to identify and summon Yakov for questioning on the basis that sufficient

evidence had been collected against the author under article 127.1 (2) (a) of the Criminal

Code. The investigator stated that claiming the existence of “Yakov” was a defence tactic by

the author to avoid criminal liability. The investigator agreed to retrieve information from

the author’s mobile phone but refused to request the call history details from the telephone

company on the ground that doing so would not make it possible to determine the content of

the conversations and would serve no purpose. The author filed similar motions,

unsuccessfully, in the trial proceedings.

2.8

On 28 October 2014, the author was informed that, on 15 September 2014, the

investigator had requested the relevant police unit in Moscow, which had carried out the

covert operation, to identify Yakov. The police unit reported on 27 October 2014 that, despite

the measures taken, for which no details or information were provided, identification was

impossible. On 14 November 2014, she requested the Head of the Criminal Investigation

Department in Moscow to provide her with details of the measures taken to identify Yakov.

Having received no answer, she resubmitted her request on 6 March 2015.

2.9

On 28 October 2014, the author was present when the investigator examined her

mobile phone. The name “Yakov” was missing from her contacts, and all entries for calls

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from and to Arthur, as well as text messages from Yakov, had disappeared. The author made

a comment to this effect in the examination report. She later informed the trial court that all

relevant entries had been deleted and requested that a technical examination of her phone be

carried out to verify her allegations. The court denied her request.

2.10

On 6 March 2015, the author filed a complaint with the Tagansky Interdistrict

Prosecutor’s Office, alleging intentional concealment of Yakov’s identity by the police and

falsification of evidence of having conducted an investigation to identify him. She claimed

that the police had not carried out any investigative measures. Her complaint was rejected by

the prosecutor’s office on 24 April 2016. The author appealed unsuccessfully against the

prosecutor’s decision, to the Tagansky District Court and to the Moscow City Court, which

both rejected her appeals, on 30 January 2017 and 14 September 2017, respectively. The

decisions were based on the fact that the pretrial proceedings in the author’s criminal case

had been completed, and the issues that she had raised were not related to the conduct of the

criminal prosecution.

2.11

On 4 March 2015, the author went on hunger strike until Yakov was identified. During

the trial court hearing, she felt weak and asked the court for a break. Her request was rejected.

An ambulance had to be called after the author had finished her concluding remarks.

2.12

On 12 March 2015, the author was sentenced to five years in prison by the Tagansky

District Court in Moscow. The court found that the covert police operations had been carried

out and documented in accordance with duly authorized decisions. The necessity of the

operations was justified by information received from the main police directorate, which had

established that an unidentified woman, named “Alya”, was a member of a criminal group

involved in trafficking in persons. The court confirmed that the acts of trafficking committed

by the author had been established by officer G during the police operation and that there had

been no provocation in officer G’s actions. The trial court dismissed the author’s claims about

the provocation by Yakov, referring to them as a defence tactic. The court relied on the results

of the police report of 27 October 2014 concerning the impossibility of identifying Yakov.

The court stated that the subject matter before it was trafficking in persons committed by the

author and that the alleged unlawful activity by Yakov was irrelevant to the case.

2.13

On 23 March 2015, the author filed an appeal with the Moscow City Court. She

reiterated her claim about police provocation before the covert operation. She claimed, inter

alia, that neither the trial court decision, nor the court documents or case materials, contained

any proof of her involvement in trafficking in persons. The police officers who had been

witnesses in the case, including officer G, could not provide relevant information either,

referring to the need to protect the source’s identity. The trial court did not try to establish

any facts in support of the police statements according to which she had been engaged in

trafficking activities before her first contact with undercover police officer G (“Arthur”), did

not assess the credibility of the source referred to by the police officers and did not assess

whether the identity of the source could be shared with the defence. On 5 November 2015,

the author’s appeal was rejected by the Moscow City Court. On 22 December 2015, the

author’s cassation review appeal was rejected by a judge of the presidium of the Moscow

City Court. On 6 June 2016, the author’s second cassation review appeal was rejected by the

Supreme Court.

2.14

In 2018, the author was banned from entering the State Party. On 21 January 2020,

the Second Cassation Court of General Jurisdiction in Moscow, acting on a cassation review

request submitted by the Prosecutor General’s Office on 4 September 2019, reclassified the

author’s charges from trafficking in persons to attempted trafficking in persons and changed

her sentence from five years to three years and eight months in prison. By then, the author

had already served her sentence and had been released in 2018.

Complaint

3.1

The author claims a violation of article 2 (3) of the Covenant because the domestic

authorities refused to investigate her allegations that the police had falsified their

investigation into Yakov’s identity.

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3.2

The author claims a violation of article 7 of the Covenant because she was held in a

metal cage during the trial at the Tagansky District Court. During the hearing, she was on

hunger strike and asked the court for a break, which was refused.

3.3

The author claims a violation of article 14 (1) of the Covenant because she was found

guilty of a crime that was incited and provoked by the police and her related claims have not

been assessed by the courts.

3.4

She claims that article 14 (3) (b) of the Covenant has been violated because she was

not informed of any investigative decisions made following her requests of 8 October 2014

(see para. 2.6 above) and could not prepare adequately her defence.

3.5

The author claims a violation of article 14 (3) (e) of the Covenant because Yakov was

not summoned to the court. Yakov was the key witness and could have confirmed that there

had been police provocation in her case.

3.6

Lastly, the author claims a violation of article 14 (3) (g) of the Covenant because she

had to sign an inaccurate interrogation record on 28 May 2014 in the absence of a lawyer and

while she was in a bad physical state, having spent the night in inadequate conditions of

detention.

State Party’s observations on the merits

4.1

On 6 December 2019, the State Party submitted its observations on the merits of the

communication, denying any violation of the author’s rights. The State Party indicates that,

on 5 April 2019, the Moscow City Prosecutor’s Office submitted a cassation review appeal

in the author’s case to the Moscow City Court, asking it to annul the sentence and send the

criminal case for a new trial. The request was rejected by the Moscow City Court on 29 May

2019.

4.2

The State Party submits that the courts assessed the author’s claims thoroughly and in

accordance with the procedural guarantees of fair trial. The State Party denies that there has

been a violation of article 14 of the Covenant.

4.3

The State Party denies a violation of article 7 of the Covenant and informs the

Committee that, during all trial and appeal stages, the author was seated behind a protective

installation, which is mandatory in criminal trials, according to law, for all accused persons

who are held in pretrial detention. The State Party submits that this is a necessary protective

measure and is not intended to humiliate the accused. Criminal proceedings presuppose

certain restrictive measures that would be unacceptable otherwise, for instance pretrial

detention.

4.4

The State Party denies a violation of article 2 of the Covenant, stating that the author

had unhindered access to protect her rights at the stage of preliminary investigation and in

court, including by submitting complaints against actions of State officials under article 125

of the Code of Criminal Procedure.

Author’s comments on the State Party’s observations on the merits

5.1

On 23 January and 26 February 2020, the author provided her comments on the

observations of the State Party. She updates the Committee about the successful cassation

review request by the Prosecutor General’s Office, upheld on 21 January 2020 by the Second

Cassation Court of General Jurisdiction in Moscow (see para. 2.14 above). The author

submits that the prosecutor’s request concerned only the reclassification of the offence for

which she was convicted and did not include the issue of police entrapment. It therefore does

not address her claims, as her conviction remains on record. The author also informs the

Committee about a permanent prohibition on entering the Russian Federation imposed on her

by the State Party in 2018.

5.2

The author specifies that, in her claims under article 7 of the Covenant, she referred

to the fact that she had been brought to the trial court hearing seven days into her hunger

strike, while the State Party, in its observations, only refers to the arrangements in the

courtroom and her being held in a cage.

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State Party’s additional observations

6.

On 26 November 2020, the State Party submitted additional observations, stating that

the author supported the cassation review request filed by the prosecutor’s office to the

Second Cassation Court of General Jurisdiction in Moscow. According to the State Party,

neither the author nor her lawyer raised claims concerning police entrapment. The State Party

adds that the author failed to exhaust domestic remedies, as she has not appealed against the

decision of the Second Cassation Court to the Supreme Court.

Author’s additional submission

7.1

On 3 December 2020, the author submitted her additional comments regarding the

State Party’s claim that she had not exhausted domestic remedies.1 The author submits that,

at the time of submission of her communication to the Committee, she had exhausted all

domestic remedies. The prosecutor’s cassation review request to the Second Cassation Court

of General Jurisdiction in Moscow in 2019 concerned only the reclassification of the final

sentence. The appeal that the State Party claims that the author should have submitted would

have to have been submitted to the Supreme Court – the same court that had already

considered the author’s cassation review appeal in 2016. The author does not consider it to

be an effective remedy to reiterate her claims to the same court that had discarded them

previously.

7.2

The author adds that, as she was barred from entering the State Party, she was unable

to communicate with her State-appointed lawyer. She states that the State Party did not

provide her with a copy of the Second Cassation Court of General Jurisdiction decision before

submitting its observations to the Committee, such that she could not have appealed it.

Issues and proceedings before the Committee

Consideration of admissibility

8.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

8.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under another procedure of international

investigation or settlement.

8.3

The Committee notes the State Party’s argument that the author failed to exhaust

domestic remedies, since she failed to appeal the decision of the Second Cassation Court of

General Jurisdiction in Moscow dated 21 January 2020. The Committee notes that the final

court (appeal) decision in the author’s case was adopted on 5 November 2015 by the Moscow

City Court. The author also submitted two cassation appeals contesting the verdict in her case

in a timely manner. The Committee notes that the cassation review proceedings in 2019 were

initiated by the prosecutor’s office, therefore constituting extraordinary remedies. The

Committee recalls its consistent approach that such extraordinary remedies do not constitute

remedies that need to be exhausted for the purposes of article 5 (2) (b) of the Optional

Protocol.2 The Committee is therefore not precluded by article 5 (2) (b) of the Optional

Protocol from examining the communication.

8.4

In relation to the author’s claims under article 2 (3) of the Covenant concerning lack

of effective remedies to contest the proceedings aimed at identifying “Yakov”, the

Committee notes that article 2 is of an accessory nature and can be raised only in conjunction

1 The author’s request to submit additional comments was granted by the Special Rapporteurs on new

communications and interim measures under rule 92 (7) and (8) of the Committee’s rules of

procedure, on 7 December 2020.

2 See, mutatis mutandis, Khmelevsky v. Belarus (CCPR/C/139/D/2792/2016), para. 7.3; Alekseev v.

Russian Federation (CCPR/C/109/D/1873/2009), para. 8.4; Kostenko v. Russian Federation

(CCPR/C/115/D/2141/2012), para. 6.3; and Dorofeev v. Russian Federation

(CCPR/C/111/D/2041/2011), para. 9.6.

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with substantive provisions of the Covenant.3 The Committee therefore finds this part of the

communication inadmissible under article 2 of the Optional Protocol.

8.5

The Committee notes that the author has not raised before the domestic authorities her

claims about being brought to the trial court during her hunger strike, which she alleges

before the Committee under article 7 of the Covenant. In the absence of any indication that

domestic remedies were unavailable or ineffective, the Committee finds these claims

inadmissible under article 5 (2) (b) of the Optional Protocol.

8.6

The Committee notes the author’s claim that placing her in a metal cage during the

court hearings contradicts article 7 of the Covenant. However, the Committee has

consistently examined such treatment under the presumption of innocence guarantees of

article 14 (2) rather than under article 7 of the Covenant.4 Even if it were to examine these

claims under article 7, the Committee notes that the author did not bring her claims before

the domestic authorities and did not provide any justification regarding the unavailability or

ineffectiveness of the domestic remedies. Accordingly, the Committee finds this part of the

claim inadmissible under article 5 (2) (b) of the Optional Protocol.

8.7

The Committee notes the author’s allegations under article 14 (3) (b) of the Covenant

that her right to defence was violated because the Tagansky District criminal investigation

unit did not respond to her requests submitted on 8 October 2014. The Committee notes the

author’s explanation in the submission that she learned about these decisions at the end of

the pretrial investigation, which was finalized on 28 October 2014, and that she brought up

similar complaints in the trial and appeal courts. In the absence of any further clarification

on file, the Committee finds this part of the author’s claim insufficiently substantiated and

inadmissible under article 2 of the Optional Protocol.

8.8

The Committee notes the author’s claim under article 14 (3) (e) of the Covenant that

the trial court refused to summon “Yakov” as a witness. The Committee, however, observes

that the court relied on the results of the police investigation, which was unable to identify

“Yakov”. The Committee considers this part of the author’s claims to be insufficiently

substantiated under article 14 (3) (e) of the Covenant and inadmissible under article 2 of the

Optional Protocol.

8.9

In relation to the author’s allegations under article 14 (3) (g) of the Covenant that the

interrogation record of 28 May 2014 contained inaccuracies, the Committee notes the lack of

information indicating that the alterations to her testimony affected the substance of her

testimony or contributed to her conviction. The author mentions that a few sentences were

added to the testimony that she had given on 27 May 2014, in which she had denied her guilt.

Otherwise, the testimony remained the same. Since the author does not explain the impact of

the alterations to her testimony on the trial and the verdict, the Committee finds this part of

the author’s submission insufficiently substantiated and inadmissible under article 2 of the

Optional Protocol.

8.10

The Committee finds the author’s claims under article 14 (1) of the Covenant

sufficiently substantiated for the purposes of admissibility and proceeds with its

consideration of the merits.

Consideration of the merits

9.1

The Committee has considered the communication in the light of all the information

made available to it by the parties, as provided for in article 5 (1) of the Optional Protocol.

9.2

The Committee notes the author’s claim under article 14 (1) of the Covenant that she

was a victim of police entrapment, leading to her being sentenced for trafficking in persons.

The Committee recalls that it is generally for the courts of States Parties to evaluate the facts

and evidence in a particular case, and that it is not for the Committee to review such an

3 M v. Belgium (CCPR/C/113/D/2176/2012), para. 6.5.

4 See, for example, Formonov v. Uzbekistan (CCPR/C/122/D/2577/2015), para. 9.4; and Khmelevsky v.

Belarus, para. 8.2. See also the Committee’s general comment No. 20 (1992), para. 4.

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evaluation, unless it can be ascertained that it was clearly arbitrary or amounted to denial of

justice or that the courts violated their obligations of independence and impartiality.5

9.3

The Committee also recalls that the principle of equality of arms, inherent in

article 14 (1) of the Covenant and reflected in paragraph 13 of its general comment No. 32

(2007), requires that the parties to criminal proceedings have equal procedural rights, unless

distinctions are based on law and can be justified on objective and reasonable grounds, not

entailing actual disadvantage or other unfairness to the defendant. The Committee notes that

an undercover operation or use of an undercover agent is not, in and of itself, contrary to the

standards of article 14 (1) of the Covenant. However, the Committee considers that, where

the State, through law enforcement agents, provokes or instigates the alleged criminal

conduct, in the absence of objective evidence that the accused was predisposed to commit

the offence, a concern arises under this principle.6 In addition, in such circumstances, the

equality of arms principle implies that the domestic courts should subject allegations of

entrapment to careful adversarial scrutiny.7

9.4

The Committee notes the author’s argument that her claims of police entrapment were

not properly examined by the domestic courts, which dismissed them as a mere defence tactic.

The Committee observes, from the information on file, that the covert investigative measure

against the author consisted of two parts: the controlled operation of 22 May 2014 and the

undercover infiltration of 27 May 2014, both initiated solely on the basis of undisclosed

“operational information” supplied by the main police directorate (see para. 2.12 above).

According to the documents on file, including the testimony of officer G, the operational

information indicated that it was impossible to document the criminal activity of the

suspected woman, “Alya”, without resorting to a covert operation. The domestic courts,

however, did not seek to establish whether the author had engaged in any prior unlawful

activity that might have justified the covert operation.

9.5

The Committee further notes that the author consistently, and in detail, alleged that

she had been provoked by a man who called himself Yakov, who had introduced her to

“Arthur” for the purpose of committing a crime that she had never previously committed and

would not have committed otherwise. She sought to substantiate her claims by requesting

call history records from the telephone provider and by presenting a detailed chronology of

events, pointing out inconsistencies in the testimony of officer G and in the records of their

meetings. However, none of these claims were assessed by the courts. The only evidence

relied upon by the domestic courts was obtained by the police during the covert operations,

and the only witnesses questioned at trial were the police officers who had participated in

them. The courts rejected all claims relating to events preceding the covert operations.

9.6

The Committee considers that these omissions indicate the lack of fairness of the

proceedings and a failure to observe the equality of arms principle. It concludes that the

domestic courts failed to discharge their duty to examine the author’s allegations of police

entrapment and thereby deprived her of the procedural guarantees enshrined in article 14 (1)

of the Covenant.

10.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that

the facts before it disclose a violation by the State Party of the author’s rights under

article 14 (1) of the Covenant.

11.

Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to

provide the author with an effective remedy. This requires it to make full reparation to

individuals whose Covenant rights have been violated. Accordingly, the State Party is under

an obligation to provide the author with adequate compensation. The State Party is also under

an obligation to take all steps necessary to prevent similar violations from occurring in the

future.

5 G.J. v. Lithuania (CCPR/C/110/D/1894/2009), para. 8.10; V.K. v. Russian Federation

(CCPR/C/116/D/2411/2014), para. 6.6; and Akulich v. Belarus (CCPR/C/140/D/2987/2017),

para. 7.2.

6 Kudryashov v. Kyrgyzstan (CCPR/C/138/D/2998/2017), para. 8.6.

7 See also European Court of Human Rights, Ramanauskas v. Lithuania, Application No. 74420/01,

Judgment, 5 February 2008.

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12.

Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party

has recognized the competence of the Committee to determine whether there has been a

violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has

undertaken to ensure to all individuals within its territory and subject to its jurisdiction the

rights recognized in the Covenant and to provide an effective and enforceable remedy when

it has been determined that a violation has occurred, the Committee wishes to receive from

the State Party, within 180 days, information about the measures taken to give effect to the

Committee’s Views. The State Party is also requested to publish the present Views and to

have them widely disseminated in the official language of the State Party.

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Annex

Individual opinion of Committee member Hélène Tigroudja

(concurring)

1.

I agree with the decision of the Committee to conclude that there was a violation of

article 14 (1) of the Covenant due to the lack of guarantees surrounding the use by police

officers of undercover agents. However, since the present case was one of the very first

opportunities that the Committee had had to clarify its approach to reconciling the right to a

fair trial and the special investigation means used by domestic authorities, I regret that the

standards and assessment criteria were not elaborated on in greater detail in paragraphs 9.3

to 9.6 of the Views.

2.

In this regard, one preliminary element should have been highlighted by the

Committee. The factual background raises the question of sexual exploitation and trafficking

in persons, which must be eradicated and investigated by States Parties. Therefore, there is

no doubt that, under article 8 of the Covenant, States have the obligation to protect victims

from this horrendous crime, which might imply special techniques of investigation, such as

undercover operations (United Nations Convention against Transnational Organized Crime,

art. 20).1 Accordingly, in paragraph 9.3, the Committee should first have clarified that, under

the Covenant, States might have positive obligations to prevent the type of transactions

described in the factual background, which may qualify as sexual exploitation or trafficking

in persons, before assessing the compatibility of the undercover operation with article 14 of

the Covenant. It is important to avoid sending mixed messages to the domestic authorities

and, in particular, law enforcement bodies, especially when such acts and behaviours are

involved.

3.

In addition, the Committee should have clarified its methodology for assessing the

compatibility of the use of such a special investigation measure with the right to a fair trial.

In the very same paragraph of the Views, the Committee referred in a footnote to the Grand

Chamber judgment of the European Court of Human Rights in the Ramanauskas v. Lithuania

case, adopted in 2008.2 Indeed, in that corruption case, after almost 20 years of unclear

jurisprudence, the Court summarized the “factors” used and its methodology: whether the

operation had been supervised by a judge; what the reasons had been for suspecting the

person of the alleged offence; and whether the suspected person had had a criminal record or

any “predisposition” to commit the alleged offence when approached by the police. As

framed by the Court, States must establish “objective suspicions”.3 In its subsequent practice,

the Court developed the “substantive test of incitement”, that is, “whether the offence would

have been committed without the authorities’ intervention, that is to say, whether the

investigation was ‘essentially passive’”; and the procedural test of incitement, that is, “the

way the domestic courts dealt with an applicant’s plea of incitement”.4

1 See especially art. 20 (1): “If permitted by the basic principles of its domestic legal system, each State

Party shall, within its possibilities and under the conditions prescribed by its domestic law, take the

necessary measures to allow for the appropriate use of controlled delivery and, where it deems

appropriate, for the use of other special investigative techniques, such as electronic or other forms of

surveillance and undercover operations, by its competent authorities in its territory for the purpose of

effectively combating organized crime.”

2 Application No. 74420/01, Judgment, 5 February 2008, paras. 49–61.

3 Ibid., para. 56.

4 Ramanauskas v. Lithuania (No. 2), Application No. 55146/14, Judgment, 20 February 2018,

paras. 56–61.

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4.

In the present case, the Committee follows more or less implicitly the very same

methodology but without spelling it out and mixes up procedural and substantive parts of the

test (for instance, in paras. 9.4 and 9.5 of the Views). Considering the need for States to

implement in practice and in a consistent way their obligations under the Covenant and the

obligations that they have under other international regimes on trafficking in persons, but

also dealing with corruption, money-laundering activities and drug trafficking, a more

rigorous methodology must be set out by the Committee in future cases dealing with police

entrapment allegations and the use of special techniques of investigation.