Rechtsstaatswidrige Tatprovokation

Die Einstellung des Strafverfahrens und der Anspruch des Opfers auf Strafverfolgung des Täters

Book cover: Rechtsstaatswidrige Tatprovokation

Extent: 230 pages

Publisher: Wiley-VCH

Series: Veröffentlichungen zum Verfahrensrecht

Language: German

Paperback (Forthcoming)

(February 2027)

ISBN: 9783162009081

6.1 x 9.13 inches

Price: $120.00

In cases of unlawful entrapment by state authorities, proceedings must be discontinued, according to the prevailing view. But does this also apply where, under ECtHR case law, the victim has a right to prosecution? And why discontinue proceedings rather than apply a ground excluding punishment?


Clara Retczak examines the legal consequences of unlawful entrapment for the person induced to commit the offence where the offence has also harmed individual legal interests. Consider, for example, the following scenario: law enforcement authorities deploy a confidential informant to investigate a group suspected of various offences in the field of organized crime. In order to gain the targets’ trust, the informant becomes increasingly involved in their criminal activities until, one day, he induces someone to seriously injure a third party.
The prevailing view in legal scholarship is that proceedings against an offender who has been unlawfully entrapped must be discontinued. The Federal Court of Justice (BGH) has recently adopted this position as well. Following two judgments against Germany by the European Court of Human Rights (ECtHR) finding a violation of Article 6 ECHR, the BGH abandoned its so-called sentencing solution, under which it had been considered sufficient to grant “merely” a substantial reduction in sentence as compensation for the unlawful inducement to commit the offence.
However, where an offence has an individual victim, this approach of discontinuing proceedings may conflict with the case law of the ECtHR and the Federal Constitutional Court concerning the victim’s right to have the offender prosecuted. This right may range from a right to comprehensive investigations conducted ex officio to a right to the offender’s conviction and punishment.
How, then, should this tension between a prohibition on prosecution and a right to prosecution be resolved? The author reaches the following conclusion: the approach of discontinuing proceedings reaches its limits in such cases of conflict. Even in cases involving the unlawful entrapment of “victimless” offences, a legal consequence other than treating the entrapment as a procedural bar is preferable.