The Ministry of Internal Affairs of Ukraine has taken into account recommendations from CO ‘Legalife-Ukraine’

The CO “Legalife-Ukraine” has received an official response from the Ministry of Internal Affairs of Ukraine and the National Police to its enquiry regarding the practice of using “undercover clients” (test purchases) in cases under Articles 301–303 of the Criminal Code of Ukraine. Although the Ministry has not altered the current legal framework, it has officially confirmed that our recommendations have been taken into account and will be considered in the National Police’s future operations.

Context: why we approached the Ministry of Internal Affairs

The CO ‘Legalife-Ukraine’ is the first nationwide organisation to systematically carry out human rights advocacy work on behalf of the sex workers’ community: it defends their human dignity, combats stigma and violence, and monitors compliance with human rights in the activities of law enforcement agencies.

An analysis of court rulings in Ukraine from 2020 to 2026, conducted by our expert group, revealed systemic problems in the practice of using covert investigative (detective) measures in cases under Articles 301 (pornography), 302 (prostitution) and 303 (pimping) of the Criminal Code of Ukraine.

The main conclusions of our study are as follows:

• The tactics employed by law enforcement agencies in using ‘undercover clients’ often contravene the standards set out in Article 6 of the European Convention on Human Rights (the right to a fair trial) and the case law of the European Court of Human Rights, in particular the well-known ‘Bannikova test’ (regarding entrapment).
• There are instances where the ‘passive agent’ principle is not observed: representatives of the Ministry of Internal Affairs themselves initiate contact, artificially provoking the individual into actions which they would not have taken without an external stimulus.
• A financial and economic analysis has shown that the state spends between 56 and 180 million hryvnias annually on such test purchases, with up to 35 per cent of these funds being spent ineffectively due to subsequent overturning of convictions and the exclusion of evidence.

Based on this analysis, we have approached the Ministry of Internal Affairs with the following proposals:

1. To incorporate our Findings into the work of the relevant units of the National Police responsible for operational and investigative activities;
2. To update departmental guidelines, clearly distinguishing between permitted (passive) and prohibited (provocative) behaviour by an ‘undercover agents’, and to introduce mandatory video recording of such operations from the very first moment of contact;
3. To issue a separate order prohibiting the use of the ‘undercover client’ method in cases under Part 1 of Article 302 and Article 301 of the Criminal Code of Ukraine involving adults acting by mutual consent — in the absence of any indications of child pornography, violence or human trafficking;
4. Establish a joint working group with representatives of CO ‘Legalife-Ukraine’ to develop a publicly available regulatory document — standard rules for the use of the ‘undercover client’ method in cases involving offences against public morality.

The Ministry of Internal Affairs’ response

The Ministry of Internal Affairs’ Department for Co-operation with the National Police, in conjunction with the National Police, set out in detail the legal framework governing operational and investigative activities.

The Ministry noted that:

• controlled and covert procurement is carried out in accordance with Article 271 of the Criminal Procedure Code of Ukraine, in accordance with a procedure agreed with the Office of the Prosecutor General and registered with the Ministry of Justice;
• Part 3 of Article 271 of the Criminal Procedure Code expressly prohibits provoking (inciting) a person to commit a crime with the aim of subsequently exposing them, as well as influencing a person’s behaviour through violence, threats or blackmail — evidence obtained in such a manner cannot be used in criminal proceedings;
• the Public Prosecutor’s Office oversees the legality of operational and investigative activities;
• undercover purchasing is not in itself a ground for bringing a person to justice, but merely a tool for documenting existing criminal activity where there are lawful grounds.

The Ministry also noted that the detection of crimes under Articles 301 and 302 of the Criminal Code is complicated by their latent nature  —as they are typically committed covertly, without identifiable victims who might report them to the police — and it is precisely for this reason that the law provides for the right of operational units to apply appropriate measures where there are grounds specified by law.

On this basis, the Ministry of the Interior concluded that there are no legal grounds for introducing the amendments we proposed to the current procedure.

Most importantly: the recommendations have been taken on board

Nevertheless, the response contains a provision of fundamental importance, which we consider to be the key outcome of this appeal:

‘At the same time, the conclusions and recommendations regarding the practice of using “undercover clients”, as outlined in your appeal, have been noted and will be taken into account in the ongoing activities of the National Police of Ukraine.’

This is official acknowledgment that our organisation’s analytical work has reached the relevant authority and has become part of a substantive dialogue on the limits of the use of covert investigative measures. The Ministry of Internal Affairs has also confirmed the principle underpinning our position: inciting a crime is strictly prohibited, and evidence obtained through such instigation is inadmissible in court. This is an important benchmark to which we can refer in our future human rights advocacy and monitoring efforts.

What next?

For CO ‘Legalife-Ukraine’, this response is not an end in itself, but a stage in our long-term advocacy work. We plan to:

• continue monitoring court rulings in cases under Articles 301–303 of the Criminal Code of Ukraine to ensure compliance with the prohibition against entrapment;
• insist on the creation of a joint working group to develop clear standard rules for the use of the «undercover client» method;
• use the official acknowledgment of our recommendations as a basis for further dialogue with the Ministry of Internal Affairs, the National Police and the Office of the Prosecutor General.

We would like to thank everyone who supports our work. Systemic changes in law enforcement take place gradually — and every step, where a relevant authority officially takes the position of the human rights community into account, brings us closer to a practice that fully complies with European human rights standards.

Charitable Organisation ‘Legalife-Ukraine’