TRIFONTSOV v. RUSSIA
Inadmissible
Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicant, Mr Yevgeniy Yevgenyevich Trifontsov, is a Russian national who was born in 1963 and lives in Kaliningrad. He was represented before the Court by Mr V. Filatyev and Mr S. Baranov, lawyers practising in Kaliningrad. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and then by Mr G. Matyushkin, their Representative at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. 3. At the relevant time the applicant was working as a police investigator. He was in charge of a criminal case against N.K., a student suspected of illegal possession of drugs. The case against N.K. was opened on 23 November 1999. 4. According to the official account of events, in December 1999January 2000 the applicant repeatedly contacted N.K.’s parents offering to close the case against their son in exchange for payment of a certain sum of money. The applicant’s father, V.K., tentatively agreed. However, some time later V.K., having discussed the matter with his wife, decided to report the applicant and secretly recorded their conversations on several audiotapes. On 28 December 1999 V.K. informed the Internal Security Service (hereinafter the “ISS”) of the offer he had received from the applicant. He gave them the audiotapes at a later date. It is unclear when those recordings were made and what they contained. 5. The applicant claimed that he had been incited by V.K. to take the money. He also maintained that V.K. had been acting on ISS orders, and that the ISS had instructed V.K. to make him accept the deal and to secretly record their conversations. 6. The ISS’s first official record of V.K.’s statement reporting the applicant was dated 15 January 2000. To the extent that V.K.’s statement is legible (the record of his questioning is hand-written), it can be summarised as follows. According to V.K., in December 1999 the applicant solicited a bribe from N.K.’s mother. In January 2000 the applicant made a similar approach to V.K. The applicant allegedly asked for 5,000 US dollars (US$), which were supposed to go to a supervising prosecutor. V.K. claimed that he had taped some of his conversations with the applicant on his own initiative. 7. On the same date, the ISS conducted a covert operation targeting the applicant. They equipped V.K. with a radio-transmitting device connected to a tape-recorder and instructed him to record his conversation with the applicant. They also gave V.K. money to be handed over to the applicant, and recorded the serial numbers of the banknotes in a document, signed by two attesting witnesses – soldiers from a nearby military base. 8. Again on 15 January 2000 V.K. called the applicant, who told V.K. that they should meet at the regional Prosecutor’s Office. They met there at about noon and discussed the deal. Their conversation was recorded by the ISS through the radio transmitter. In the course of the conversation, the applicant reproached V.K. for having brought only US$ 2,500, namely half the amount agreed earlier. V.K. replied that he would bring the remaining half later. The applicant also asked V.K. whether he had told anybody about their deal. V.K. replied in the negative. The applicant then asked V.K. to leave the money on a table, in a plastic bag. When V.K. had done so, the applicant gave him an official note signed by the applicant and confirming that the case against N.K. had been closed. 9. As soon as the applicant left the building, V.K. contacted the ISS officers, who were waiting nearby and informed them that the money had been handed over. The ISS officers immediately apprehended the applicant, but found that he was not in possession of the money. They then searched the premises where V.K. had met the applicant and found the money in a plastic bag, hidden in the corridor. The serial numbers on the banknotes found there corresponded to those on the banknotes received by V.K. from the ISS. The ISS officers drew up a report of the search of the place of the incident, which was attested by the same two witnesses. The applicant was questioned and arrested. The case was then transferred to the regional Prosecutor’s Office, and on 18 January 2000 the applicant was formally charged with taking a bribe. Material obtained by the ISS during the covert operation was declassified and attached to the criminal case file. On 16 May 2000 the prosecution sent the case with a bill of indictment to the Kaliningrad Regional Court. 10. In the course of the trial the applicant pleaded not guilty and alleged that it was V.K. who had offered him money. The applicant did not deny that he had agreed to take the money but claimed that his real intention had been to report V.K. as a briber. He had arranged for the meeting to take place at the Prosecutor’s Office in order to report him to his friends who worked there. The applicant also claimed that the tape recorded on 15 January 2000 and the search report should not have been admitted in evidence. 11. The prosecution insisted that the applicant had extorted money from V.K. In support, they produced the report of “the search of the place of the incident” (namely the corridor where the money had been discovered in a plastic bag). They also produced the report of an expert examination of the fingerprints on the plastic bag, according to which the fingerprints belonged to the applicant. A record of the conversation of 15 January 2000 between the applicant and V.K. was also presented to the court. Finally, the prosecution submitted the official note signed by the applicant certifying that the case against N.K. was closed.. 12. The court heard several witnesses. V.K. testified that the applicant had offered to discontinue the proceedings against his son in exchange for a sum of money. His testimony was corroborated by N.K., who testified that in 1999 his father had told him about the offer made by the applicant. Another witness, V.K.’s wife, stated that she had known about the deal and had persuaded her husband to inform the ISS about it. The court also examined the ISS officers involved in the operation. They confirmed that V.K. had informed them about the offer made by the applicant. The applicant’s immediate superiors and colleagues were also examined. They claimed that the applicant had never told them that V.K. had offered him money to close the criminal case against N.K. 13. The court also examined the record of the applicant’s first questioning and noted that the applicant had not referred to “incitement” when questioned. The court also heard the two attesting witnesses who had been present on 15 January 2000 during the preparation of the covert operation and during the search of the premises of the regional Prosecutor’s Office. They confirmed the accuracy of the reports drawn up by the ISS. 14. Finally, the court listened to the tape recording made secretly during the meeting between V.K. and the applicant on 15 January 2000, examined the transcript of the tape and studied the official note concerning the closure of the criminal case against N.K. 15. On 13 July 2000 the Kaliningrad Regional Court found the applicant guilty of taking a bribe and sentenced him to four years’ imprisonment. 16. The applicant appealed. He maintained that ISS officers had framed him. He submitted that the ISS should have first obtained V.K.’s written statement, then opened an inquiry or instituted criminal proceedings, but that none of that had been done. The applicant also contested the admissibility and authencity of the tape recording of his conversation with V.K.. He also contested the admissibility of the search report . He submitted that those pieces of evidence had been obtained in breach of the law. Furthermore, the applicant challenged the veracity and consistency of statements of the witnesses who had testified against him. 17. On 28 December 2000 the Supreme Court of the Russian Federation upheld the decision of the Kaliningrad Regional Court and confirmed the findings of the first-instance court as to the facts of the case. It also noted that the operation that had led to the applicant’s arrest had been carried out in conformity with the applicable legislation. The material obtained by the ISS had been duly incorporated in the body of evidence. Furthermore, in accordance with criminal procedure rules, the ISS had the right to search premises without waiting for an investigator from the Prosecutor’s Office. 18. For relevant provisions of the Operational-Search Activities Act of 1995, as in force at the material time, see Bykov v. Russia [GC], no. 4378/02, § 56, 10 March 2009.