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ZSOLT SZOMORA
a criminal offence. In respect of the specific case of the trap server, there was
no suspicion that the defendant had been involved in criminal activity, but on
the other side, there was a predisposition to acquire child pornography. Persons
who connected to the Sex Preteen directory might deliberately be searching for
such possibilities on the internet. It was not the Italian Police that instigated the
illegal file sharing, it merely made the file sharing possible for persons who were
searching for such a possibility. Therefore, I conclude that the reference made by
the Hungarian court to the Teixeira case was not correct.
The same conclusion can be made also regarding the remark of the first¬
instance court that the application of the trap server was not authorized by a judge
but by the prosecutor. This statement can also be argued now by the case law of
ECtHR: in the judgment Bannikova v. Russia, the Court held that a supervision by
a prosecutor may be appropriate provided that adequate procedure and safeguards
are in place. This represents a material approach, which means that the absence of
the authorization by a domestic court can not be argued by a mere formal point
of view.
Observing the Strasbourg case law discussed above would now allow the
conclusion that the Hungarian courts’ reference to human rights issues were not
correct. However, at this point, a recent judgment of the ECtHR shall also be
mentioned when making analogy from undercover agents to virtual agents, that
is the trap server. Analogies might be wrong but necessary, since the operation of
a trap server has not yet been tested before the ECtHR, as to my knowledge. Such
analogy allows the reference to the case Grba v. Croatia of 2018.” In this case, the
ECtHR states that the prohibition of entrapment also extends to the recourse to
operation techniques involving the arrangement of multiple illicit transactions
with a suspect by the state authorities. The Court has held that such operation
techniques are recognised and permissible means of investigating a crime when
the criminal activity is not a one-off, isolated criminal incident but a continuing
illegal enterprise. Any extension of the investigation to multiple illicit transactions
must be based on valid reasons, such as the need to ensure sufficient evidence to
obtain a conviction, to obtain a greater understanding of the nature and scope
of the suspect’s criminal activity, or to uncover a larger criminal circle. Absent
such reasons, the state authorities may be found to be engaging in activities which
improperly enlarge the scope or scale of the crime."
In the combat against child pornography, international cooperation of investiga¬
tive authorities is essential. There were many cases, where covert telecommunication
7 Application no. 47074/12, 23 November 2017.
8 Guide on Article 6 of the European Convention of Human Rights. Right to a fair trial
(criminal limb). State as of 31 December 2020, 45.
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