BURDEN AND STANDARD OF PROOF IN ENTRAPMENT ALLEGATIONS: PART 1 – PRELIMINARY STAGE OF CONSIDERATION OF AN ENTRAPMENT APPLICATION

Abstract

This article explores the burden and standard of proof regarding entrapment claims at the preliminary consideration stage in criminal proceedings. Although entrapment is not explicitly listed among the circumstances subject to proof under Part 1 of Article 91 of the Criminal Procedure Code of Ukraine, the author convincingly argues that its relevance to criminal justice requires it to be addressed under Part 2 of the same article. The paper focuses on the concept of prima facie as a minimal threshold of evidentiary sufficiency that triggers further judicial examination. Drawing on the jurisprudence of the European Court of Human Rights (ECtHR), the study outlines how prima facie evidence, once established, shifts the burden of disproving entrapment onto the prosecution.The article emphasizes that the ECtHR treats entrapment as a multi-stage process, with the first stage being the court’s determination of whether the facts of the case prima facie indicate possible entrapment. The paper identifies key indicators that qualify a case for further review: the confidential informant’s prior initiative, cooperation with authorities before the formal investigation, the defendant’s consistent claims of entrapment, and admission of conduct under external inducement.The study concludes that prima facie should not be classified as a separate standard of proof. Instead, it functions as a flexible evidentiary filter and a procedural mechanism that dynamically allocates the burden of proof between the parties.Based on the analysis of the extensive case-law of the European Court of Human Rights, the article identifies the characteristics of prima facie evidence, which allows this category to be regarded not merely as an abstract or exclusively doctrinal concept, but as a flexible and effective tool of procedural activity, particularly in assessing the sufficiency of evidence for initiating or continuing legal proceedings.