FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12025/02 by Yevgeniy Yevgenyevich TRIFONTSOV against Russia

The European Court of Human Rights (First Section), sitting on 8 June 2006 as a Chamber , composed of:

Mr C.L. Rozakis , President , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens, judges ,

and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 25 June 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yevgeniy Yevgenyevich Trifontsov, is a Russian national who was born in 1963 and lives in Kaliningrad .

At the relevant time the applicant worked as a police investigator. He was in charge of a criminal case against Mr NK, suspected in illegal possession of drugs.

According to the official account of events, in December 1999 the applicant contacted the suspect ’ s father, Mr VK, and proposed him to close the case against his son in exchange of a certain sum of money. Mr VK agreed.

Some time afterwards Mr VK informed the Internal Security Service [1] (hereinafter ISS) of that offer. The officers of the ISS equipped Mr VK with a concealed listening device. They also gave the applicant money to be transmitted to the applicant, and recorded serial numbers of the banknotes.

On 15 January 2000 Mr VK met the applicant in the building of the regional prosecutor ’ s office, where they discussed their deal. Mr VK secretly recorded their conversation. The applicant asked VK to leave the money on a table, in a plastic bag. When Mr VK has done so, the applicant gave him a document confirming that the case against Mr NK had been closed.

As soon as he left the building, Mr VK contacted ISS officers, who were waiting nearby. He informed them that the money had been transmitted and gave them the audio record of his conversation with the applicant. The ISS officers immediately apprehended the applicant; however, he had no money with him. The ISS officers then searched the place and found the money in a plastic bag, hidden in the corridor. The numbers of banknotes found corresponded to those given earlier to Mr VK by the ISS officers. The ISS officers drew up a record of the search, which was signed by two witnesses – military sailors from an adjacent navy base.

As a result, the applicant was questioned and arrested. He claims that he has not been given a lawyer immediately after his arrest. The case was then transferred to the regional prosecutor ’ s office, and on 18 January 2000 the applicant was formally charged with bribe taking. It appears that starting from that date the applicant had been assisted by a lawyer.

On an unspecified date the prosecution transmitted the case with a bill of indictment to the court. The applicant claims that the prosecution did not advise him that he had the right to be tried by a jury. As a result, he was tried by a professional judge, assisted by two lay judges.

In the course of the trial the applicant pleaded not guilty. According to him, it was Mr VK who offered him money. The applicant did not deny that he had accepted to take it; however, he claimed that his real intention had been to denounce Mr VK as a briber. This is why he arranged the meeting in the prosecutor ’ s office building, where his friend worked. He also claimed that the audio record and the protocol of the search should not have been admitted in evidence.

The prosecution insisted that the applicant had been extorting money from Mr. VK. In support they produced a protocol of the search of the corridor where the money in the plastic bag was discovered. They also produced the result of an expert examination of the fingerprints on that plastic bag. According to it, the fingerprints belonged to the applicant. The record of the conversation of 15 January 2000 between the applicant and Mr VK was also produced to the court. Finally, the prosecution submitted the decision to discontinue the proceedings against Mr NK, signed by the applicant.

The court heard several witnesses. Mr VK testified that the applicant offered him to discontinue the proceedings against his son, in exchange of a bribe. This testimony was corroborated by Mr NK, who testified that in 1999 his father had told him about the offer made by the applicant. Another witness, Mr VK ’ s wife, stated that she had known about that deal and had persuaded her husband to inform the Internal Security Service about it. The court also questioned ISS officers involved in the operation. They confirmed that Mr VK had informed them about the offer made by the applicant. The applicant ’ s immediate superiors were also questioned. According to them, the applicant had never told them that Mr VK had offered him money for discontinuation of the criminal case against his son.

On 13 July 2000 the Kaliningrad Regional Court found the applicant guilty of bribe taking and sentenced him to four years ’ imprisonment. The applicant alleges that during the breaks in the deliberations the presiding judge was seen at the doors of the court building, talking to a representative of the prosecution.

The applicant appealed, submitting, inter alia , that ISS officers framed up a “provocation” against him. ISS had to, first, obtain Mr VK ’ s written submissions, then start an “operative inquiry” or institute criminal proceedings. However, nothing of that had been done.

Further, the applicant contested the admissibility and authencity of the audiotape where his conversation with Mr VK was recorded. He also contested the admissibility of the protocol of the search in the building where he had been arrested. He indicated that those pieces of evidence had been obtained not in conformity with the requirements of the law “On operative and search activities in the Russian Federation ”. Further, the applicant challenged the veracity and consistency of statements of those witnesses who testified against him.

However, on 28 December 2000 the decision of the Kaliningrad Regional Court was upheld by the Supreme Court of the Russian Federation . The Supreme Court confirmed the conclusions of the first instance court as to the facts of the case. It also noted that the operation, which had led to the applicant ’ s arrest, had been carried out in conformity with the applicable legislation. The materials obtained by the ISS officers were duly incorporated in the body of evidence. Further, under the criminal procedure rules the ISS officers had the right to search the premises without waiting for an investigator of the prosecutor ’ s office. The Supreme Court also found that the first instance court had the right to make breaks during the deliberations.

COMPLAINT S

1. Under Article 3 of the Convention the applicant complains of ill-treatment while in custody.

2. Under Article 5 the applicant complains that his pre-trial detention was unlawful and unjustified. He also complains that he was not informed about the reasons for his arrest immediately after it.

3. Under Article 6 § 1 the applicant complains that he was convicted on the basis of unlawfully obtained evidence and that the case against him was “fabricated”.

4. Under Article 6 §§ 1 and 3 the applicant presents a number of complaints about the criminal proceedings, which ended with his conviction. In particular, he complains of various informalities and procedural flaws in terms of the domestic law. He also complains of absence of legal assistance during the first days after his arrest. The applicant insists that he did not request a jury trial because he was not informed about such opportunity; instead he was tried by a court composed of a professional judge and two lay judges. He claims that the lay judges were influenced by the presiding judge. He also complains of the contacts of the presiding judge with the representatives of the prosecution during the breaks in the hearings.

5. Under Article 6 § 1 the applicant complains that the length of proceedings in two instances exceeded the “reasonable time” requirement.

6. Finally, the applicant complains that the court of appeal gave a very superficial assessment of the conclusions of the first instance court, and did not take into account his arguments. The applicant refers to Article 13 in this respect.

THE LAW

1. Under Article 3 of the Convention the applicant complains of ill-treatment while in custody between 15 January and 13 July 2000 . Article 3 of the Convention , referred to by the applicant on that account, reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or pu n ishment.”

Even assuming that the domestic remedies in respect of this complaint were exhausted and the application was lodged within the six months time-limit provided by Article 35 § 1 of the Convention, t he Court recalls that allegations of ill-treatment must be supported by appropriate evidence. However, t he applicant did not produce any evidence of ill-treatment , such as medical certificates, witness testimonies etc. His submissions in this respect are very vague. Accordingly, there is an insufficient evidentiary basis on which to conclude that the applicant, beyond reasonable doubt , was ill-treated by the police, as alleged by him.

It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Under Article 5 the applicant complains that his pre-trial detention was unlawful and unjustified. He also complains that he was not informed immediately about the reasons of his arrest.

The Court notes that the applicant ’ s pre-trial detention ended on 13 July 2000 with the decision of the Kaliningrad Regional Court (see Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 23, § 9 ), that is more than six months before the introduction of his application before the Court.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. Under Article 6 § 1 the applicant complains that he was convicted on the basis of unlawfully obtained evidence and that the case against him was “fabricated”. He may be understood as claiming that he was convicted as a result of a police provocation. Article 6 § 1, insofar as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. Finally, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the remainder of the applicant ’ s complaints under Articles 6 and 13 do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

For these reasons, the Cou rt unanimously

Decides to adjourn the examination of the applicant ’ s complaints co n cerning his conviction being based on evidence obtained in the course of the undercover operation by the police;

Declares the remainder of the application inadmissible.

Søren Nielsen     Christos Rozakis    Registrar                                 President

[1] A special department of the Ministry of Interior dealing with investigation into crimes committed by the members of the police.