Legal summary
October 2025
Helme v. Estonia - 3023/22
Judgment 7.10.2025 [Section III]
Article 6
Article 6-1
Fair hearing
Applicant’s conviction following explicitly sexual conversations with an undercover police officer purporting to be a 12-year-old girl in an online chatroom: no violation
Facts – In September 2019 criminal proceedings were initiated on the basis of information received by the police indicating that various persons had used internet sites to engage in chats of a sexual nature with minors under the age of 14 and had sent them files containing sexual content. On the basis of that information the prosecutor’s office authorised the use of an undercover police officer to gather information on one of the websites.
Between 8 October and 8 December 2019 a police officer using the fictional identity of a 12-year-old-girl and the pseudonym “Marleen12” used online chatrooms on that website in order to collect information relevant to the proceedings. During that operation the applicant, using the username “m41tln”, had explicitly sexual conversations via private messages with “Marleen12” on the website having being told during their first chat she was 12 years old.
Subsequently, the applicant was convicted of attempted sexual enticement of a minor with the transcripts of his conversations with “Marleen12” being admitted as evidence in the proceedings against him. All the applicant’s appeals were unsuccessful.
Law – Article 6 § 1:
Based on the criteria set out in the Court’s case-law and using the methodology for the examination of complaints of entrapment, in view of its factual circumstances, the present case fell within the category of “entrapment cases”. It was the first case where the Court had been called upon to decide whether an individual had been entrapped in a purely online context.
(1) Whether there were good reasons for mounting the operation – There had been no prior knowledge of or suspicion regarding the applicant’s reprehensible conduct and the investigation had been initiated on the basis of the information received by the police. The first instance court had examined the secret surveillance file and had assessed the overall lawfulness of the secret surveillance operation, including by verifying that there had been a reasonable suspicion that an offence had been committed. In his appeals the applicant had not complained about the general lawfulness of the secret surveillance operation nor the inadequacy of procedural safeguards. However, throughout the domestic proceedings and before the Court, he had complained that an undercover police officer had entrapped him and that there had been no objective suspicion against him personally before that officer had been deployed.
The Court, when assessing the weight to be attached to the fact that prior to the undercover police operation there had been no objective suspicion that it had been the applicant who had engaged in the unlawful sexual enticement of a minor or that he had been predisposed to engaging in such activity, could not ignore the particular context in which the offence had taken place. The Estonian legislature had decided to criminalise the act of knowingly sexually enticing a minor under 14 years of age. It appeared that that activity within the scope of the relevant provision did not necessarily need to take place (either partially or entirely) in the physical world; all communication between the perpetrator and the victim might occur exclusively through electronic means and entirely within an online context, without the suspect ever having suggested or arranged an in‑person meeting with the minor. Indeed, communication between the applicant and “Marleen12” had taken place via private messages in an online chatroom where both parties had used pseudonyms.
The criminalisation of certain behaviour, in itself, had limited deterrent effect if there were no means to identify the actual offender and bring him or her to justice. In that connection, the Court had previously found that a State’s positive obligations under Article 8 to safeguard an individual’s physical or moral integrity might extend to questions relating to the effectiveness of a criminal investigation, even where the criminal liability of State agents was not at issue. Furthermore, an effective criminal investigation required that practical and effective steps be taken to identify and prosecute the perpetrators. Where communication via the internet facilitated the commission of a crime or where all the criminal activity in question took place online, the police also had to make use of online means to investigate and prosecute those crimes.
In a context such as that of the present case, it might not be feasible for the authorities, after receiving information about potentially unlawful activities on a website, to identify possible suspects prior to mounting an undercover operation, or to do so without potentially interfering disproportionately with the rights of others not involved in the investigation, particularly with the right to respect for private life. In that connection, people on certain websites, such as chatrooms, were not usually required to reveal their real or full identities, and often did not. Moreover, people could change their usernames, more than one person could “hide” behind the same username, and the same username could be used consecutively by different people. Where the unlawful activity took place via private messages, albeit in an otherwise public chatroom, it might not be detectable (and thus reportable) by third parties.
In the specific context of the present case, the domestic authorities had had good reasons to initiate the secret surveillance operation. They had been under an obligation to follow up on the information they had received on the potential sexual enticement of minors under the age of 14 on a website. The fact that at that stage there had been no objective suspicion that it had been the applicant specifically who had been involved in criminal activity or had been predisposed to engage in such conduct, was not decisive. The police had had an objective suspicion that had been specific to a defined and limited virtual space – an identified chatroom on a particular website; that had been confirmed by the first instance court and had not been contested by the applicant. Furthermore, the suspicion had involved a crime against minors, who due to their vulnerable position might not be in a position to understand being victimised and/or to report such offences.
(2) Conduct of the authorities during the operation – Firstly, the fact that an undercover operation had been set up did not, in itself, imply that there had been an intention to entrap the applicant by inciting him to commit offences that he would not otherwise have committed. Such operations were, by their nature, set up with the aim of gathering information and evidence, and involved the adoption of false identities. Secondly, the actions carried out by the police – setting up a user profile in a chatroom, logging on and chatting with other persons via private messages – had not, in themselves, constituted unlawful activity, nor had they presumed illegal actions on the part of the person with whom the police had been communicating. The use of the username “Marleen12” had not constituted unlawful incitement by the police. While it could arguably have made reference to the relevant person’s age it had in no way invited communication of an explicitly sexual nature. Furthermore, the applicant had been free to choose whether to communicate with “Marleen12”, which topics to discuss and to make decisions in that regard after “Marleen12” had stated her age early in their first chat. Yet, the applicant had repeatedly engaged in the chats, always initiating them and introducing topics of an explicitly sexual nature. The applicant had not complained in either the domestic proceedings or the proceedings before the Court about how the chats had progressed in terms of the topics discussed, nor that the undercover police officer had encouraged him to discuss sex-related issues. The Court thus found that throughout the operation the undercover police officer had not abandoned the required passive attitude, and the applicant had been under no express or implied pressure to commit the offence.
(3) Conclusion – The Court considered that the available material allowed it to establish that the use of an undercover police officer had not amounted to incitement as defined in the Court’s case-law relating to Article 6 § 1. The subsequent use of the evidence obtained by the undercover measure in the criminal proceedings against the applicant did not therefore raise an issue under that provision.
Conclusion: no violation (six votes to one).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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