Analysis of Standards and Effects of Police Indirect Entrapment from the Perspective of the European Court of Human Rights

— Taking "Akbay and Others v. Germany" as an Example

LIU Meixiang & HOU Huiru

Abstract: The European Court of Human Rights (ECtHR) has ruled that illegal indirect entrapment must meet three criteria simultaneously. This mixed standard requires that the previous direct entrapment violates the “essentially passive,” subsequent indirect entrapment satisfies the “reasonable foreseeability,” and police entrapment of secondary defendants to commit crimes is considered “decisive.” The legal consequences of indirect entrapment are distinguished between general indirect entrapment and illegal indirect entrapment. The basic position of the ECtHR on the consequences of illegal indirect entrapment has shifted from supporting mitigating penalties to recognizing procedural dismissal, and general indirect entrapment is considered a mitigating factor in sentencing. Against the backdrop of increasing internationalization of criminal justice standards, the above criteria and positions have strong implications for the improvement of relevant rules in China.

Keywords: indirect entrapment · direct entrapment · standard of legitimacy · legal consequence