Agent provocateur

The agent provocateur (original term in French, agent provocateur) is the person who incites another to commit a crime or punishable or compromising acts, in order that the actions of the provoked be discovered and punished.

Conceptualization

Francesco Carrara wrote in Criminal Law Program that agent provocateur is the person “who incites another to commit a crime, not because he has an interest in the consummation of that crime or enmity against the designated victim, but on the contrary, because he has an interest in the crime being committed or tempted so that an evil happens to the instigated himself." In a similar vein, criminal lawyer Carlos Creus thinks. In a sense that also coincides, it has been said in other words that it is the person "who incites another to carry out an illegal act, or who through his conduct causes the necessary factual circumstances for him to carry out a crime, with the in order to verify said illegality in order to suppress it”.

It has been declared that the act of a person who responds to the voluntary offer to the public of carrying out the maneuver of the accused does not fall within the figure of agent provocateur; in the case it is resolved that the person who goes to a place open to the public and acquires merchandise of illegal origin that is offered there, with the purpose of exposing the crime, is not an agent provocateur.

The British Royal Commission on Crime defined in 1928 the figure of agent provocateur as one who induces another to commit a crime that he would not otherwise have committed and proceeds or reports on said crime.

There are three elements of the figure of the agent provocateur:

• First, it requires an objective element represented by the incitement of the provocative agent, it must take the initiative as a result of which criminal resolution arises in the person of the defendant.
• Second to have a subjective element, represented by the conduct of the provocative agent who aspires to achieve a goal that differs entirely from that which the offender usually persecutes, since his intervention in the act has as immediate purpose to achieve the punishment of the provoked person.
• Finally, the third characteristic element is that the provocative agent has put all the appropriate means to prevent the unprotected result from being achieved.

Consequently, it is only possible to speak of an agent provocateur and as a consequence of an provoked crime when the intervention takes place before the possible perpetrators have begun preparing the act. On the contrary, when the preparation for the commission of the crime has already begun, and the police have well-founded suspicions that this is the case, there is no longer a provocation in the sense of the induction of article 28.a) of the Criminal Code, given that the perpetrators have already decided on the commission of the crime and, therefore, it is no longer possible to create fraud in the perpetrators, since they are already acting in this way.

Conduct of the agent provocateur

Regarding the conduct of the agent provocateur, two cases must be distinguished:

Firstly, that the commission of the crime was not induced, but that the simulated actions of the agent provocateur, who is a police officer, have been aimed at discovering that already committed before. the participation in this act of the police agent has been justified by the fulfillment of the duties of his position, being, therefore, a lawful behavior, within the limits of the Spanish Constitution (art. 126) and the Law of Criminal Procedure (articles 282 and ss,) and article 11 of the L.O. 2/1986 of State Security Forces and Bodies.

Second that there is a really provoked crime, in this case, the conduct of the agent provocateur would not be punishable, since he acts without the double intent that the inducement requires.

The combination of the two assumptions is decisive for giving a coherent response to the issue of the responsibility of the agent provocateur acting as a participant. This is the only way to justify why the agent provocateur should go unpunished in many of the cases in which he intervenes. Their impunity is a consequence of the fact that their behavior does not generally justify the injustice that makes it possible to impose a sentence. And it does not justify it well because it does not really and effectively contribute to the attack on the legally protected interest in the type of special parties, or because it is not protected against its attacks. The last chapter is devoted to examining the relationship between the conduct of the agent provocateur and the impossible crime. In the doctoral student's opinion, referring the topic to the framework of the unsuitable attempt, in order to respond to the responsibility of the agent provocateur, implies incurring a patent methodological error. He indicates that the circumstance that conceptually lacks the will to injure or endanger the legal right should not be ignored. Consequently, it is not appropriate to refer his conduct to the second paragraph of article 5.º C.P. The unsuitable attempt requires, inexcusably, a subjective moment represented by the intention to commit a crime.

Difference from other criminal figures

Undercover agent

The undercover agent is “any official of the authorized security forces... who gives his consent and conceals his identity, infiltrates or introduces criminal organizations or criminal associations, in order to identify or detain the perpetrators. authors, participants or concealers, to prevent the consummation of a crime, or to gather information and evidence necessary for the investigation, with judicial authorization.” In all cases, the agent must belong to the security forces and have judicial authorization to act as such in a specific case.

If the agent gets involved in such a way that he would have created or instigated the criminal offense in the criminal's head, he is not an undercover agent but an agent provocateur (CSJN, Rulings 313:1305 “Fiscal c/ Fernández).

Revealing agent

The revealing agent is "the agent of the security or police forces designated in order to simulate interest and/or carry out the transportation, purchase or consumption, for themselves or for third parties of money, goods, people, services, weapons, narcotics or psychotropic substances, or participate in any other activity of a criminal group, with the purpose of identifying the people involved in a crime, arresting them, seizing the assets, releasing the victims or collecting probative material that serves to the clarification of the illegal acts. In this sense, the action of the revealing agent is not of continuous execution nor is it perpetuated over time, therefore, it is not destined to infiltrate criminal organizations as part of them." His performance requires the designation of the judicial authority.

Informante

It is the person who "under identity reservation, in exchange for an economic benefit, contributes to the security forces, police or other organizations in charge of the investigation of illegal acts, data, reports, testimonies, documentation or any other pertinent and useful element or reference that allows to initiate or guide the investigation for the detection of individuals or organizations dedicated to the planning, preparation, commission, support or financing" of certain types of crimes specified by the legislation.

Surveillance delivery

It is when the judge authorizes the detention of persons or the seizure of property to be postponed when he deems that the immediate execution of said measures may compromise the success of the investigation. This power includes the possibility of suspending the interception in Argentine territory of an illicit consignment and allowing them to enter, circulate or leave the national territory, without interference from the competent authority and under its control and surveillance, in order to identify the participants, Gather information and evidence necessary for the investigation as long as you are sure that it will be monitored by the judicial authorities of the country of destination.

The agent provocateur is not a punishable instigator because he wants to avoid the crime, that is, the counterpart of the instigation; Contrary to this statement, the opinion has been raised that considers that nothing prevents the provocative activity from being reflected through authorship or participation behavior, in all its forms. The creation or instigation of the crime in order for the possible suspect to fall into the trap, thus generating the criminal intent in those who do not have it, is what differentiates them from the undercover agent. The jurisprudence maintains that, since the prevention function excludes the very production of the crime by tempting the innocent, the evidence provided by a mere agent provocateur will not be usable.

In the Spanish Criminal Law Code, for example, the provoked crime can be considered as an unsuitable attempt (resulting in the offender going unpunished), and even if the crime occurred against the will of the agent provocateur, he or she could be convicted of reckless crime. There are articles, such as 263 bis of the Criminal Procedure Law, that allow this type of trick, for example in anti-drug issues. However, the agent provocateur is a figure of dubious constitutionality and foundation as a democratic means, so its legitimacy is more proper as a means of espionage, repression or dictatorial.

Prevention of agents provocateurs in public demonstrations

Sometimes the actions of the agent provocateur have the political interest of harming a group before public opinion, especially on the occasion of public demonstrations, either by pretending to be a supporter of it or through actions that seek a reaction from it. To prevent agent provocateur infiltration, organizers of long or risky demonstrations can organize their own order service, and conduct copwatching.