ABSTRACT
Similarly to torture evidence, the Court has adopted a rigid rule against the use entrapment evidence. Any evidence of a crime committed as the result of incitement by state authorities which would otherwise not have been committed must be excluded. According to the case law, there are two parts of the relevant test, a substantive and a procedural one. The substantive test includes assessing whether the domestic authorities have had sufficient grounds to suspect someone of a crime before mounting an undercover operation and how that operation was carried out. Typically, claims of entrapment arise in connection with covert investigation methods. If the investigating authorities have only joined a criminal operation already in progress and acted in an essentially passive manner, the risk of incitement would be small. As a part of the procedural test, the Court will examine whether the domestic courts have the power to exclude entrapment evidence or otherwise ensure a similar outcome. It will be argued that other remedies may be more appropriate in this context than the exclusion of evidence.
