IV.ULUSLARARASI NECMETTİN ERBAKAN ÜNİVERSİTESİ HUKUK KONGRESİ
AN EVALUATION ON THE LEGAL CONSEQUENCES OF THE UNDERCOVER AGENT’S AND TRUSTEE’S ACTIVITY OF INCITEMENT IN GERMAN LAW IN LIGHT OF CURRENT DEVELOPMENTS
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Necmettin Erbakan Üniversitesi Yayınları
German investigative authorities have long used to incite to commit a crime through an undercover agent or a trustee as a routine investigation method. However, in German law, it is still a controversial issue whether it is lawful to incite someone to commit a crime. In its consistent decisions since the 1980s, the German Federal Supreme Court (GFSC), has examined the issue by making a distinction between “permissible/ acceptable incitement” and “impermissible/unacceptable incitement”. Accordingly, the GFSC considers it lawful for the investigating authorities to incite a person to commit a crime as a legitimate investigative method, especially in dangerous crimes that seriously threaten social life, such as drug trafficking and organized crimes, in the presence of certain conditions. The Supreme Court adds that the “principle of the rule of law” sets a limit to this activity and characterizes the incitement contrary to the principle of rule of law as impermissible/unacceptable incitement. Therefore, the GFSC has developed some criteria for determining in which cases an incitement activity is permissible/acceptable. In the course of the historical process, different decisions have been made by the Supreme Court regarding the legal consequences of impermissible/unacceptable incitement. In this context, various remedies such as impairment of judgment, mitigation of sentence or ban on all evidence obtained as a result of incitement have come to the fore and the GFSC have predominantly considered as a reason for the mitigation of sentence in the case of impermissible/unacceptable incitement. Similarly, there is no consensus in the doctrine on which method should be applied and variouse ideas have been put forward. On the other hand, the majority opinion in the Turkish criminal law doctrine does not accept it as lawful for the investigating authorities to incite a person to commit a crime on the grounds that it would be incompatible with the principle of the rule of law. The Turkish Supreme Court, without making a distinction between permissible/acceptable incitement and impermissible/unacceptable incitemet, has consistently developed a practice that all evidence obtained as a result of incitement can not be used in the criminal proceedings. The European Court of Human Rights (ECHR), in its Furcht v. Germany judgment3 in 2014 and Akbay and Others v. Germany judgment4 in 2020 ruled that the BGH’ s solution which mitigate of sentence in case of impermissible/unacceptable incitement, violated the right to fair trail within the meaning of Article of 6 of The European Convention on Human Rights. After these jugdments of the ECHR, the discussions on incitement to commit a crime and its legal consequences have been reignited in German law. In fact, this situation has attracted the attention of the legislator and work has begun to make a legal regulation on the subject. In this study, it is aimed to examine and evaluate the doctrinal opinions and judicial decisions in German law, which have emerged in the historical process regarding the incitement activities carried out by the investigative authorities through undercover agent or trustee, in the light of current discussions. In this context, the decisions of the ECHR and Turkish Supreme Court and the doctrinal opinions in Turkish criminal law will also be utilized.
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