The criteria the compliance with which in integrity testing will not be considered as a provocation are formulated by the ECtHR in the case of Cavca v. the Republic of Moldova.

According to the case file, on 29 February 2019 the National Anti-Corruption Centre of Moldova (Centrul Național Anticorupție, hereinafter, the Centre) initiated an integrity testing of employees of the Environmental Protection Inspectorate (EPI). Mr. Ivan Cavca held the position of head of a territorial subdivision of the EPI. On 22 May 2019 someone called the EPI, complaining about the illegal felling of trees. Cavca left to verify the information. At the location indicated by the caller, he discovered that S. had cut down a tree with a chainsaw. In fact, S. was acting undercover to test Cavca’s professional integrity. He suggested to Cavca that the “issue could be resolved” without there being an official procedure, and offered him brandy, fish, money and the chainsaw as a bribe. Cavca rejected that suggestion and drew up a record of the administrative offence committed by S.

S. returned to Cavca’s office later to show proof that he had paid the fine for committing the administrative offence. Cavca informed S. that he also had to confiscate the chainsaw used to commit the offence. Cavca then gestured to S. not to speak, they went outside and Cavca told him that he had had to draw up the record because there had been a third person (a forester) present. He promised to help S. in the future if S. warned him ahead of time. S. asked whether Cavca needed the chainsaw (apparently offering it as a bribe), and Cavca replied that he did and showed S. a car where he could leave it, which S. did. It was established that Cavca had failed the professional integrity test. He was fired later. Cavca appealed against the decision, stating that his misconduct had been provoked and he had not been informed that he would have been tested.

The domestic courts of different instances refused to satisfy his complaint. Having considered it, the ECtHR found that Article six of the European Convention for the Protection of Human Rights and Fundamental Freedoms (right to a fair trial) had been violated because the Moldovan courts had not considered Cavca’s arguments about the provocation.

At the same time, the ECtHR stressed that due to the difficulties in detecting and proving specific corrupt practices, authorities can resort to testing the inclination of certain groups of officials to violating the standards of conduct. As the meaning of such testing consists in creating artificial situations that can occur in the exercise of professional duties of the individual tested, they cannot be equated with an incitement to commit a crime, if:

• the official who failed the testing is held only disciplinary liable, which, in particular, implies the use of lower standards of a fair trial: the undercover testers in this case play a more active role than in criminal prosecution and can demonstrate from the very beginning their intention to offer a reward, expecting an unequivocal refusal from the individual tested and subsequent reporting of incitement to corruption;
• the testing is related to corruption risks that are inherent in a specific body (organisation)/sector of activity rather than to suspicions with regard to specific officials, which is normally the case in sting operations;
• the prior authorisation from the court was obtained to conduct the integrity testing and there was subsequent control over the relevant activities on behalf of the justice authorities*;
• the official held liable as a result of the testing is entitled to participate in the proceedings with regard to the cases resulting from the testing and to defence.

In 2015, the Constitutional Court of Moldova found unconstitutional the provisions of Law of 23 December 2013 No. 325 “On Assessment of Institutional Integrity” that suggest conducting integrity testing without the knowledge of civil servants via staged situations, provocations and secret surveillance. The Court found that such methods allow interfering with private life and can tarnish the professional image of citizens, violate the principles of legal certainty, presumption of innocence and proportionality of interference and do not have the sufficient safeguards against abuse. Additionally, the Constitutional Court stressed that the use of such verifications with the aim to hold the perpetrators disciplinary and/or criminally liable is unacceptable in the absence of a clearly regulated procedure and judicial supervision. Even if the possibility of integrity testing remained in place, some experts believe that the decision of the Constitutional Court about the inadmissibility of enforcement of the unconstitutional provisions has almost completely paralyzed their normal conduct. A number of experts linked the adoption of the decision to the fact that the Constitutional Court at that time was ceased by the elites who did not expect the integrity testing mechanism to be truly effective for combating corruption.

*In Moldova, the professional integrity testing (test de integritate profesională) is a part of the mechanism for assessing institutional integrity. It is carried out by the Centre after the authorisation of a court of general jurisdiction at the location of the body where the respective verification is planned to take place.

The assessment consists of four stages:

1. Detection of corruption risks in the body;
2. Testing of professional integrity of officials of the body which is modeling of a situation similar to working one by the tester with a view to assessing the reaction and behaviour of the official (for example, incitement to an offense and analysis of whether the official will have the appropriate reaction or will suggest “repairing the situation” for a reward);
3. Description of corruption risks and analysis of the factors that generate them;
4. Drafting of the report on the findings of assessment of institutional integrity and formulation of recommendations on how to mitigate the corruption risks detected and enhance corporate institutional integrity.

The materials obtained in the course of the assessment, including the outcomes of testing of professional integrity of officials are verified and adopted by the same court that authorised it. In particular, the results of the resting can be positive (the official did not violate the standards of conduct), negative (the official violated the standards of conduct) and indefinite (the conduct of the official can be qualified neither as positive nor as negative and/or the testing was performed with breaches). In case of a negative outcome the official can be held disciplinary liable up to dismissal.