THIRD SECTION

CASE OF MINIKAYEV v. RUSSIA

(Application no. 630/08)

JUDGMENT

STRASBOURG
5 January 2016

This judgment will become final in the circumstances set out in Article 44 2 of the
Convention. It may be subject to editorial revision.

MINIKAYEV v. RUSSIA JUDGMENT

In the case of Minikayev v. Russia,

The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Luis Lpez Guerra, President,
Helena Jderblom,
George Nicolaou,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 8 December 2015,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 630/08) against the Russian
Federation lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (the Convention)
by a Russian national, Mr Almaz Ilgizovich Minikayev (the applicant), on
10 October 2007.
2. The applicant, who had been granted legal aid, was represented by
Mr E. Markov, a lawyer admitted to practice in Odessa and living in France.
The Russian Government (the Government) were represented by Mr G.
Matyushkin, Representative of the Russian Federation to the European
Court of Human Rights.
3. The applicant alleged, in particular, that he had been subjected to
ill-treatment by the police and forced to make a confession, and that his
pre-trial detention had been excessively long.
4. On 8 November 2013 the above complaints were communicated to
the Government and the remainder of the application was declared
inadmissible pursuant to Rule 54 3 of the Rules of Court.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1981 and is serving a prison sentence in
Bor in the Nizhniy Novgorod Region.

MINIKAYEV v. RUSSIA JUDGMENT

A. Robbery of 30 December 2004

6. According to the official version of events, on 30 December 2004
D.M., S., R.M., the applicant and an unknown person broke into Kh.s
house and assaulted her until she showed them where some money was
hidden. They tied her up with electric cable, took the money, a hunting knife
and a mobile telephone and then left. She reported the robbery to the
authorities that day.
B. Robbery of 22 March 2005, the applicants arrest and the
pre-trial investigation
7. According to the official version of events, D.M., Siv., R.M., the
applicant and an unknown person planned to commit a robbery. At around
8 p.m. on 22 March 2005 they collected together some ski masks, an air
gun, gas sprays, a police uniform and a sawn-off shotgun. S. drove them all
to B.s house. S. stayed in the car with the shotgun while the rest of the
group approached the house. R.M. put on the police uniform and knocked
on the door. When G. opened it, R.M. threatened him with an air gun, threw
him to the floor and entered the house with his accomplices. At around
9.30 p.m. some police officers, who had been informed earlier that a
robbery was being planned, arrived at B.s house. When they entered, R.M.
shot one of them with the air gun. The police arrested him and the applicant.
D.M. and the unknown person got away. S. was later caught. The applicant
was taken to the police station.
8. According to the applicant, when the policemen showed up at B.s
house, they handcuffed him. He did not resist arrest, but they still assaulted
him inside the house. They then took him outside, threw him down on the
porch and assaulted him again. They kicked him and struck him with the
butt of a gun. Afterwards, he was taken to the police station, where the
officers assaulted him again. They questioned him repeatedly through the
night and threatened to put him in a cell with dangerous inmates who would
assault him knowing that he was a former law enforcement officer. As a
result, he confessed to the robbery of 30 December 2004. However, the
police officers forged the date on the confession, indicating that he
confessed on 20 April 2005.
9. At 12.30 p.m. on 23 March 2005 investigator S. questioned the
applicant, who chose to remain silent in order not to incriminate himself. He
was represented by lawyer K. According to him, the police officers
questioned him again at 2 p.m. They threatened and insulted him.
10. At approximately 4 p.m. that day the applicant was examined by a
forensic medical expert, Sk., in the presence of a police officer. She
prepared report no. 358 on 25 March 2005 noting that, according to the
applicant, he suffered from headaches and impaired vision in the right eye

MINIKAYEV v. RUSSIA JUDGMENT

and had sustained his injuries in the course of arrest. The expert documented
the injuries and concluded that they might have been caused by the impact
of blunt objects at the time and in the circumstances indicated by him. She
further suggested that the applicant should seek medical advice to exclude
the possibility of concussion. According to her report, the applicant
sustained the following injuries:
bruising around the eyes, intense swelling of the left eyelid ... bruising and swelling
of soft tissue on the forehead, an abrasion in the centre of the forehead, bruising to the
ears, abrasions on the left temple and right cheekbone, a small surface contusion on
top of the head, haemorrhaging and a small bruise on the inside of the lips, a bruise on
the back and haemorrhaging on the left buttock.

11. According to the applicant, on the way back to the police station
two police officers assaulted him again. After arriving at the station, several
officers made him sign some documents. They struck him on the head and
continued threatening him.
12. On 24 March 2005 the Melekesskiy District Court of the Ulyanovsk
Region authorised the applicants pre-trial detention. He remained in
custody pending investigation and trial.
13. On the same date investigator S. questioned the applicant at the
police station in the presence of lawyer K. The applicant described the
events preceding his arrest on 22 March 2005 and admitted his involvement
in the robbery. Fearing for his life, he did not tell the investigator about the
ill-treatment. According to the applicant, he was forced to admit his
involvement in the robbery because he had been threatened and pressured
by the police prior to meeting the investigator.
14. On 29 March 2005 the applicant was transferred from the police
station to a remand prison.
15. According to the official version of events, on 20 April 2005, while
detained in the remand prison, the applicant signed a confession admitting
his involvement in a robbery which was incorrectly written as having taken
place on 29 December 2004.
16. On an unspecified date the applicant confirmed, when questioned by
the investigator in the presence of his lawyer, that he had taken part in the
robbery of 30 December 2004.
17. On 23 June 2005 the applicant was taken to the crime scene, where
he gave explanations as to the events of 22 March 2005 in the presence of
lawyer Sh. who had been appointed to represent him.
18. On 12 September 2005 investigator Kuz. questioned the applicant in
the presence of lawyer Sh. The applicant confirmed his previous statements
of 24 March and 23 June 2005. He also provided information as regards the
robbery of 30 December 2004.
19. On 9 November 2005 the same investigator questioned the applicant
again in the presence lawyer Sh. The applicant confirmed his earlier
statements.

MINIKAYEV v. RUSSIA JUDGMENT

C. Trial
20. On 25 May 2006 the District Court fixed a trial start date of 7 June
2006.
21. On 21 December 2006 the applicant testified in court. He revoked
his confession, alleging that the police officers had put mental and physical
pressure on him to confess to the robberies. He also testified against his codefendants. In particular, he stated:
I was arrested ... at about 10 p.m. Even though I did not resist arrest, [police
officers] beat me up during the arrest and right afterwards to make me make the
necessary statements for them. They beat me up in the yard of B.s house, then on the
porch and inside the house. When ... inside, B. punched me in the eye. [The police
officers] punched and kicked me and struck me with the butt of a gun. They told me to
confess to a robbery ... These were M., G. and U. They accompanied the beatings with
a threat that if I refused to confess to the robbery, they would charge me with murder.
They also asked me to testify against [co-defendants]. ... They beat me up until I
agreed to cooperate. Then G. recorded my confession. As a result of [the beatings] I
suffered trauma and injuries. My rib was broken. On 23 March 2005 I told forensic
expert Sk. about them but she did not mention them in her report.

22. On 30 December 2006 the District Court found the applicant guilty
of two counts of robbery and sentenced him to eleven years imprisonment.
The court relied on the applicants statements (see paragraphs 9, 13 and
15-19 above). As regards the robbery of 30 December 2004, the court relied
on the statements made by defendant K., Kh. and her husband, forensic
medical evidence and other exhibits submitted by the prosecution. Kh.
identified the applicant and his co-defendants as the persons who had
broken into her house and robbed her. As regards the robbery of 22 March
2005, the court based its findings on the statements and testimony given by
the defendants including the applicant, the victims B. and G., police
officers, as well as forensic and other evidence. As regards the applicants
injuries, the court noted:
The court verified the allegation made by the applicant [and his co-defendants] that
they confessed under mental and physical pressure exerted by police officers
including U., B., and G. These [police officers] submitted, when questioned in court,
that they had not put any pressure on the defendants, nor made [them] confess. The
[district] prosecutors office did not confirm [the defendants] allegations either. The
court concludes that the injuries sustained by [the applicant and two of his codefendants] as documented in the forensic reports were inflicted in the course of their
lawful arrest. Regard being had to the above, the court concludes that the confessions
made by [the applicant and three of his co-defendants] about their involvement in the
crimes are admissible and objective, in so far as they were found to be credible as
being in accordance with other evidence. The court does not discern any evidence to
confirm the defendants allegation of an infringement of their right of defence in the
course of the pre-trial investigation.

MINIKAYEV v. RUSSIA JUDGMENT

23. On 16 April 2007 the Ulyanovsk Regional Court upheld the

applicants conviction on appeal in substance. As regards the confessions
allegedly extracted under coercion, the appellate court noted:
The argument raised by the defence before the appellate court, that the defendants
confessions and testimony given in the course of the pre-trial investigation admitting
that they had taken part in the crimes and testifying against [each other] were obtained
under physical and mental pressure, has been subject to thorough examination by the
trial court. It concluded that those allegations were unsubstantiated. Furthermore, the
trial court only relied on the defendants concurring statements given in the presence
of their lawyers, that is, in circumstances excluding the possibility of unlawful
methods of investigation.

D. Investigation into the applicants allegations of ill-treatment

24. According to the parties, on an unspecified date in 2005 the
applicant complained to the District Prosecutors Office (the prosecutors
office) of ill-treatment during arrest and in police custody. On 13 April
2005 the district prosecutor refused to institute criminal proceedings against
the police officers. The applicant did not appeal against that decision.
25. On 6 March 2006 the applicant lodged another complaint with the
prosecutors office. The prosecutor dismissed it on the same date, noting:
The criminal case file contains sufficient evidence that the [applicant is] guilty ... A
study of the material in the case file has shown that no evidence was obtained in
contravention of [the rules of criminal procedure] that could be found inadmissible. It
follows from the material in the case file, including the statements made by [the
applicant] in the course of the preliminary investigation, that no pressure was put on
him. Physical force was only used against him during the arrest.
The [applicants] arguments should be construed ... as an attempt to avoid criminal
liability ...

26. On 18 September 2007 the applicant resubmitted his complaint. On

27 September 2007 senior investigator R. refused to institute a criminal
investigation against the alleged perpetrators, noting:
In order to elucidate the circumstances of the case, [the investigator] asked for a
copy of the judgment in the [applicants] criminal case. According to [that], the
[applicants allegations of ill-treatment] were subjected to examination by the [trial]
court. The court questioned [the police officers implicated by the applicant]. However,
his allegations were found unsubstantiated and viewed as an attempt by [him] to avoid
criminal liability.
...
[Police officer] K. submitted, when questioned, that ... he had arrived at [the crime
scene] after [the applicant] had been arrested. He had visited [him] at the police
station, but had not put any physical or psychological pressure on him. He knew that
at the time of the arrest, a member of the criminal group had opened fire at the
policemen and as a result, one of the perpetrators had escaped. The police had had to
use force against all of them, which had been justified in the circumstances of the
case.

MINIKAYEV v. RUSSIA JUDGMENT

...
Having examined the above-mentioned material, I conclude that there is nothing ...
to suggest that [the police officers] committed a crime against [the applicant].

27. It appears that the decision of 27 September 2007 was quashed and
the matter was remitted for an additional inquiry. On 9 November 2007
R. again refused to open a criminal investigation into the applicants
allegations of ill-treatment. He reiterated the reasoning from the decision of
27 September 2007 verbatim. He also relied on the statements made by
police officer M. and forensic medical expert Sk., noting:
[Police officer M.] submitted, when questioned, that he had been part of the arrest
team. His task was to cover the officers conducting the arrest ... When he arrived at
the crime scene, all the members of the criminal group had been arrested. He had not
interacted with them ... he had not put any physical or psychological pressure on them.
Forensic medical expert Sk., who examined [the applicant], submitted, when
questioned, that she had documented all the complaints made by [him] in respect of
his health. She had also recommended that he consult a traumatology specialist.
However, she had received no documents from a traumatologist for forensic expert
evaluation and had to proceed without them. If she had noticed [that the applicant
had] a broken rib, she would have noted it in the report.

28. On 25 August 2008 the regional prosecutor quashed that decision

and ordered an additional inquiry into the matter. On the same date the
Dimitrovgrad Town Court of the Ulyanovsk Region dismissed an appeal by
the applicant against the decision of 9 November 2007, noting that it had
been quashed by the Regional Prosecutors Office.
29. On 4 September 2008 R. again refused to institute criminal
proceedings against the police officers. He relied on his earlier reasoning of
27 September and 9 November 2007.
30. On 6 December 2008 he issued another decision refusing to open a
criminal investigation into the applicants allegations of ill-treatment. He
reiterated his earlier reasoning verbatim. As regards the applicants
allegation that he had been coerced into making a confession on 20 April
2005, the investigator noted:
[The applicant] indicated in his complaint that on 20 April 2005 Ye., V. and U. had
taken him to their office and made him write a confession, threatening to put him in a
cell with dangerous inmates.
...
Ye. submitted, when questioned, that, as far as he could recollect, [the applicant]
had been detained at their police station and might have made a confession. However,
he could not remember who had been present when [he] confessed. Any threat to the
effect that [the applicant] would be put in a hostile environment with other inmates
would have been impossible. People arrested and inmates were detained [separately]
in accordance with the law. No one had put any physical or psychological pressure on
him.

MINIKAYEV v. RUSSIA JUDGMENT

[Police officer V.] submitted, when questioned, that he had no recollection of [the
applicant].

31. On 20 December 2008 R. again refused to institute criminal

proceedings against the police officers. The applicant appealed, arguing that
the inquiry in response to his complaint was incomplete. In particular, the
investigator had not questioned certain witnesses or checked how many
times the officers had questioned him while in custody.
32. On 29 May 2009 the Town Court stopped considering the
applicants appeal, as on 25 May 2009 the prosecutors office had already
quashed the decision of 20 December 2008.
33. On 7 June 2009 R. refused to open a criminal investigation, relying
on his earlier findings.
34. On 11 August 2009 the Town Court upheld the investigators
decision of 7 June 2009. On 23 September 2009 the Regional Court upheld
this most recent decision on appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
35. For a summary of the relevant domestic law and practice, see Lyapin
v. Russia (no. 46956/09, 96-102, 24 July 2014).

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
36. The applicant complained of ill-treatment during arrest and in police
custody and ineffectiveness of the ensuing investigation. The Court will
examine the complaint from the standpoint of Article 3 of the Convention,
which reads as follows:
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.

A. Admissibility
37. The Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further
considers that it is not inadmissible on any other grounds. It must therefore
be declared admissible.

MINIKAYEV v. RUSSIA JUDGMENT

B. Merits
1. The parties submissions
(a) The Government

38. The Government challenged the applicants allegations, which they

argued had been subjected to investigation at domestic level. The
prosecutors office and then the courts had concluded that the use of force
against the applicant during his arrest had been lawful. They had not
discerned any evidence in support of the applicants allegation that he had
been coerced into making a confession.
(b) The applicant

39. The applicant maintained his complaint. He claimed that, despite

there being no resistance on his part towards the arresting police officers,
they had physically assaulted him. The beatings had continued after he had
been taken to the police station, coupled with threats of him being charged
with other unsolved crimes. As a result, he had confessed to the robbery of
30 December 2004. The subsequent medical examination confirmed his
allegations; however, the doctor had not documented all of his injuries. Nor
had she sent him for an X-ray despite his complaints about a broken rib and
concussion. Because of the constant pressure put on him by police officers,
he had been afraid to complain about the ill-treatment immediately. He had
only been able to bring his grievances to the attention of the prosecutors
office after the investigation had ended.
40. The applicant also noted that the Government had failed to explain
the cause of his injuries as documented by the doctor the day following his
arrest. They had not proved that he had resisted arrest or that the use of
force had been necessary to stop him doing so. In this connection, the
applicant pointed out that his arrest had not been carried out in the course of
a random operation which might have given rise to unexpected
developments to which the police might have been called upon to react
without prior preparation. In his case, the police had had prior knowledge
that the robbery was being planned. The police operation had been carefully
prepared. The police officers had clearly outnumbered the applicant.
Besides, the officers had not sustained any injuries as a result of his
supposed resistance to arrest, while he had sustained numerous injuries as a
result. He considered that the use of force against him had been excessive.
41. As regards the ensuing investigation, the applicant argued that it had
not been effective within the meaning of Article 3 of the Convention. Even
though he had not lodged his complaint promptly, it had been incumbent on
the authorities to conduct an investigation in view of his numerous injuries
the authorities had been aware of from the day of his arrest. Subsequent
inquiries had been formalistic and had lacked thoroughness. The prosecutor

MINIKAYEV v. RUSSIA JUDGMENT

and the courts had relied mainly on the statements made by the police
officers. No effort had been made to verify the applicants accusations any
further. Lastly, he pointed out that the investigation had been protracted.
There had been a substantial period of inactivity on the part of the
prosecutors office and the courts. He had been unable to take an active part
in it. He had not even been informed of the results of the initial inquiry or
granted victim status. In conclusion, therefore, the domestic authorities had
failed to take all the reasonable steps available to secure evidence
concerning his ill-treatment and to properly investigate and punish the
alleged perpetrators.
2. The Courts assessment
(a) General principles
(i) Alleged ill-treatment

42. The Court reiterates that Article 3 of the Convention enshrines one
of the most fundamental values of democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or punishment,
irrespective of the circumstances and the victims behaviour (see Kuda
v. Poland [GC], no. 30210/96, 90, ECHR 2000-XI).
43. In order for ill-treatment to fall within the scope of Article 3 it must
attain a minimum level of severity. The assessment of this minimum is, in
the nature of things, relative; it depends on all the circumstances of the case,
such as the duration of the treatment, its physical or mental effects and, in
some cases, the sex, age and state of health of the victim (see Ireland
v. the United Kingdom, 18 January 1978, 162, Series A no. 25).
44. Where allegations are made under Article 3 of the Convention the
Court must apply a particularly thorough scrutiny. Where domestic
proceedings have taken place, however, it is not the Courts task to
substitute its own assessment of the facts for that of the domestic courts and,
as a general rule, it is for those courts to assess the evidence before them.
Although the Court is not bound by the findings of domestic courts, in
normal circumstances it requires cogent elements to lead it to depart from
the findings of fact reached by them (see Gfgen v. Germany [GC],
no. 22978/05, 93, ECHR 2010).
45. Allegations of ill-treatment must be supported by appropriate
evidence. To assess this evidence, the Court adopts the standard of proof
beyond reasonable doubt but adds that such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact (see Jalloh v. Germany [GC],
no. 54810/00, 67, ECHR 2006-IX).
46. In respect of a person deprived of his liberty, any recourse to
physical force which has not been made strictly necessary by his own

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MINIKAYEV v. RUSSIA JUDGMENT

conduct diminishes human dignity and is an infringement of the right set

forth in Article 3 (see Sheydayev v. Russia, no. 65859/01, 59, 7 December
2006, and Ribitsch v. Austria, 4 December 1995, 38, Series A no. 336).
The burden of proof rests on the Government to demonstrate with
convincing arguments that the use of force resulting in the applicants
injuries was not excessive (see, for example, Dzwonkowski v. Poland,
no. 46702/99, 51, 12 April 2007).
47. The Court has considered treatment to be inhuman because, inter
alia, it was premeditated, was applied for hours at a stretch and caused
either actual bodily harm or intense physical and mental suffering.
Treatment has been held to be degrading when it was such as to arouse in
its victims feelings of fear, anguish and inferiority capable of humiliating
and debasing them and possibly breaking down their physical or
psychological resistance, or when it was such as to drive the victim to act
against his will or conscience (see Gfgen, cited above, 89).
(ii) Investigation into the allegations of ill-treatment

48. The general principles concerning the right to have an effective

investigation into allegations of ill-treatment are well established in the
Courts case-law and may be summarised as follows (see Lyapin, cited
above):
125. The Court reiterates that where an individual makes a credible assertion that
he has suffered treatment infringing Article 3 at the hands of the police or other
similar agents of the State, that provision, read in conjunction with the States general
duty under Article 1 of the Convention to secure to everyone within their jurisdiction
the rights and freedoms defined in ... [the] Convention, requires by implication that
there should be an effective official investigation. Such investigation should be
capable of leading to the identification and punishment of those responsible.
Otherwise, the general legal prohibition of torture and inhuman and degrading
treatment and punishment would, despite its fundamental importance, be ineffective in
practice and it would be possible in some cases for agents of the State to abuse the
rights of those within their control with virtual impunity (see, among other authorities,
Labita v. Italy [GC], no. 26772/95, 131, ECHR 2000-IV).
126. The investigation into serious allegations of ill-treatment must be both prompt
and thorough. The authorities must always make a serious attempt to find out what
happened and should not rely on hasty or ill-founded conclusions to close their
investigation or as the basis of their decisions. They must take all reasonable steps
available to them to secure the evidence concerning the incident including, inter alia,
eyewitness testimony and forensic evidence. Any deficiency in the investigation
which undermines its ability to establish the cause of injuries or the identity of the
persons responsible will risk falling foul of this standard (see, for example, Kopylov
v. Russia, no. 3933/04, 133, 29 July 2010). Thus, the mere fact that appropriate steps
were not taken to reduce the risk of collusion between alleged perpetrators amounts to
a significant shortcoming in the adequacy of the investigation (see, mutatis mutandis,
Ramsahai and Others v. the Netherlands [GC], no. 52391/99, 330, ECHR 2007-II,
and Turluyeva v. Russia, no. 63638/09, 107, 20 June 2013). Furthermore, the
investigation must be independent, impartial and subject to public scrutiny (see Mesut
Deniz v. Turkey, no. 36716/07, 52, 5 November 2013). It should result in a reasoned

MINIKAYEV v. RUSSIA JUDGMENT

11

decision to reassure a concerned public that the rule of law had been respected (see,
mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, 118,
4 May 2001).
127. It falls to the State to have recourse to a procedure which would enable it to
take all measures necessary for it to comply with its positive obligation of effective
investigation imposed by Article 3 (see, mutatis mutandis, Sashov and Others
v. Bulgaria, no. 14383/03, 64, 68 and 69, 7 January 2010; see also Vanfuli
v. Russia, no. 24885/05, 79, 3 November 2011; Nechto v. Russia, no. 24893/05,
87, 24 January 2012; and Nitsov v. Russia, no. 35389/04, 60, 3 May 2012).
(b) Application of these principles to the present case
(i) Alleged ill-treatment

49. In the instant case, the applicant alleged that he had been subjected
to ill-treatment in the course of his arrest and subsequent detention in police
custody. The Government did not dispute that the police had used force
against him during his arrest which, in their opinion, had been a necessary
and proportionate measure. However, they denied that he had been
subjected to any form of ill-treatment while in police custody.
50. Accordingly, the Court considers that the issue before it is two-fold.
It has to examine (1) whether the recourse to physical force during the arrest
in this case was made necessary by the applicants conduct and (2) whether
the applicant was subjected to ill-treatment while in police custody. The
Court will consider these issues in the reverse order.
() Alleged ill-treatment in custody

51. In an attempt to elucidate the circumstances of the applicants

detention in police custody, the Court will take into account the following.
52. Firstly, it attaches particular weight to the forensic medical evidence
submitted by the parties. In this connection, it reiterates that the medical
examination of persons in police custody, together with the right of access
to a lawyer and the right to inform a third party of the detention, constitutes
one of the most essential safeguards against ill-treatment (see, among other
authorities, Trkan v. Turkey, no. 33086/04, 42, 18 September 2008, and
Algr v. Turkey, no. 32574/96, 44, 22 October 2002).
53. In this connection, the Court notes that the applicant underwent a
forensic medical examination approximately sixteen hours after his arrest.
He was not provided with access to a medical practitioner on arrival at the
police station, where he was detained and questioned before he was allowed
to see a forensic medical expert.
54. The Court observes that the expert documented numerous injuries to
the applicants head and body. As regards the time and cause of the injuries,
the expert based her finding that they had been sustained as a result of the
use of force during arrest on the examination she conducted and the
applicants explanations.

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MINIKAYEV v. RUSSIA JUDGMENT

55. The Court also notes that the applicant chose not to disclose to the
forensic expert that he had been subjected to beatings while in police
custody. Nor did he make those allegations known to the lawyer who
assisted him during questioning that day.
56. Lastly, the Court takes into account the fact that, in his submissions,
the applicant provided a detailed description of his arrest. As to the events
allegedly occurring in police custody, he confined himself to general
statements that the beatings continued in custody (see paragraphs 8 and 21
above). The applicants allegations were examined by domestic judicial
authorities at two levels of jurisdiction which concluded that the applicant
had sustained the injuries in the course of the arrest and discerned no
evidence supporting the applicants allegations of ill-treatment in police
custody (see paragraphs 22-23 above).
57. Regard being had to the above, the Court cannot conclude that the
information before it is sufficient to draw inferences favourable to the
applicant. It is unable to establish beyond reasonable doubt that the
applicant had been subjected to ill-treatment in police custody. It will
therefore proceed with an examination of the complaint that the applicant
sustained the injuries as a result of the use of force against him during his
arrest on 22 March 2005.
() Use of force

58. Having regard to the Courts well-established case-law that the

burden of proof rests with the Government to demonstrate that the use of
force resulting from the applicants injuries was not excessive (see
paragraph 46 above), the Court notes that the national courts, when
addressing the applicants allegations of ill-treatment, merely noted that he
had sustained injuries in the course of arrest. At no point, did they make any
effort to establish whether the use of force against the applicant had been
necessary or not excessive. The Government did not advance any additional
argument. Relying on the domestic courts findings, they did no more than
assert that the use of force against the applicant in the course of the arrest
had been lawful.
59. Having examined the limited materials submitted by the parties, the
Court may accept that, in the circumstances of the case, the number of
alleged perpetrators and the violence of the offence committed by them
made it necessary for the police to use force to put an end to their criminal
behaviour and protect the victims. However, it is not convinced that the
applicants conduct was of such a nature as to justify recourse to the
treatment inflicted on him by the arresting police officers.
60. The Court is mindful of the potential danger the situation presented.
Four men, armed with an air gun and gas spray, broke into the victims
home in an attempt to commit a robbery. The situation could have given rise
to unexpected developments to which the police might have been called

MINIKAYEV v. RUSSIA JUDGMENT

13

upon to react without prior preparation. Nevertheless, the documents before

the Court indicate that the police had been informed that the perpetrators
were planning to commit a robbery, and that they had sufficient time to
evaluate the possible risks and take all the measures necessary to carry out
the operation. The Government did not claim that the police officers were
outnumbered by the robbers, nor is there evidence that the applicant
threatened or attacked the police officers arresting him. The Government
did not explain why it was necessary for the police officers to strike the
applicant repeatedly on the head. They merely reiterated the domestic
authorities finding that his injuries resulted from the use of force against
him, without giving any further detail. The courts, at two levels of
jurisdiction, did no more than validate the prosecutors findings without
providing further details on the incident. No official documents concerning
the use of force during the arrest or follow-up reports were furnished.
61. The Court accepts that in the circumstances of the case, the police
officers might have needed to resort to physical force to subdue the
applicant or to prevent any potential resistance on his part. However, the
Government have not shown that striking him repeatedly on the head was
necessary to carry out the arrest, and it can only be considered as purely
gratuitous. The Court concludes that the force used by the police against the
applicant was excessive and unjustified.
62. It remains for the Court to ascertain whether the treatment
complained of by the applicant attained a minimum level of severity such as
to fall within the scope of Article 3. While the Court notes that the bruising
and swelling around the applicants eyes might have resulted from victim B.
punching him (see paragraph 21 above), it considers that the rest of the
bruising the applicant sustained on the head and resulting from the use of
force against him by the police indicates that his injuries were sufficiently
serious to amount to ill-treatment within the meaning of Article 3 (compare
Assenov and Others v. Bulgaria, 28 October 1998, 95, Reports of
Judgments and Decisions 1998-VIII).
63. It follows that there has been a violation of Article 3 of the
Convention under its substantive limb on account of the treatment the
applicant was subjected to as a result of the use of force against him during
his arrest.
(ii) Effectiveness of the investigation

64. The Court considers that, in the circumstances of the case, regard
being had to the use of force against the applicant during the arrest and the
fact that the applicant underwent a medical examination after having spent
several hours in police custody, it was incumbent on the authorities to
conduct an investigation into the applicants allegations of ill-treatment.
65. As regards the progress of the initial inquiry, the Court takes into
account that the applicant promptly made the authorities aware of his

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MINIKAYEV v. RUSSIA JUDGMENT

allegations of ill-treatment. On 23 March 2005 he informed the forensic

medical expert that he had sustained injuries in the course of his arrest and
at around the same time, he lodged a formal complaint with the prosecutors
office about the events of 22 March 2005. However, the Court also notes
that the applicant in fact refused to cooperate with the authorities. He did
not communicate any details to them pertaining to the alleged ill-treatment
in police custody. Furthermore, the applicant did nothing once the
prosecutors office completed the inquiry refusing to institute criminal
proceedings against the alleged perpetrators in April 2005 (see paragraph 24
above). It took him over a year and eight months to bring his grievances to
the attention of the trial court.
66. The Court notes the applicants explanation that he was unwilling to
cooperate with the investigating authorities for fear for his life in police
custody. While mindful of the precariousness of the applicants situation
and the difficulties a detainee might face when raising a complaint about
police brutality the Court cannot accept, in the absence of any evidence in
support of such an argument, that the applicant was relieved from the
obligation to provide information to the authorities.
67. Admittedly, this indicates that the investigating authorities task of
elucidating the circumstances of the applicants arrest and detention in
police custody was complicated by the latters unwillingness to cooperate.
Nevertheless, in the Courts opinion, the applicants conduct was not such
as to preclude the authorities from conducting an effective investigation.
Despite the initial dismissal of the applicants complaint, the trial court and
the prosecutors office considered it possible and necessary to conduct
several additional rounds of pre-investigative inquiries into the applicants
allegations of ill-treatment to verify how he had sustained the injuries he
complained of.
68. The Court notes, however, in respect of those inquiries that each
time, the investigator refused to institute criminal proceedings against the
police officers, finding that the applicants allegations were unsubstantiated
and contradicted the statements made by them. As the authorities did not
explain why, unlike the applicants, the credibility of the police officers was
never called into question by the investigator, the Court cannot support the
domestic authorities conclusion that there was no case to answer against
the alleged perpetrators. Furthermore, at no time did the investigator
examine whether the use of force had been necessary at all during the
applicants arrest.
69. On a more general level and regard being had to the fact that the
authorities knew the police had used force against the applicant during his
arrest, the Court emphasises that they were under a positive obligation under
Article 3 to conduct a medical examination of him in a prompt and
comprehensive manner (compare, mutatis mutandis, Mironov v. Russia,
no. 22625/02, 57-64, 8 November 2007). In this connection, the Court

MINIKAYEV v. RUSSIA JUDGMENT

15

notes that the forensic medical examination the applicant underwent was not
complete. The expert noted that a further medical examination was
necessary (see paragraph 10 above). However, no further action was taken
by the authorities in this regard. The Court also notes that the medical
examination was carried out in the presence of a police officer, which would
have impeded the applicants ability to communicate freely with the medical
expert.
70. Furthermore, the Court notes that as a result of the applicants
complaints being dismissed, the domestic authorities never conducted a
fully-fledged criminal investigation constituting an effective remedy for
victims of ill-treatment under the domestic law.
71. In this connection, the Court takes into account that in an earlier case
against Russia (see Lyapin, cited above, 128-40) where the domestic
investigating authorities refused to open a criminal investigation into
credible allegations of ill-treatment in police custody, it held that such a
refusal was indicative of the States failure to comply with its obligation
under Article 3 to carry out an effective investigation.
72. Having regard to the material in its possession, the Court notes that
the Government did not put forward any facts or arguments capable of
persuading it to reach a different conclusion in the present case.
73. The above considerations are sufficient to warrant the conclusion
that the Russian authorities failed to carry out an effective investigation into
the applicants allegations of ill-treatment. Accordingly, there has been a
violation of Article 3 of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
74. The applicant complained that the investigation into his allegations
of ill-treatment had been ineffective, in violation of Article 13 of the
Convention, which provides:
Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.

75. The Court observes that this complaint concerns the same issues as
those examined above under the procedural limb of Article 3 of the
Convention (see paragraphs 64-73 above) and should therefore be declared
admissible. However, having regard to its conclusions above under
Article 3, the Court considers it unnecessary to examine those issues
separately under Article 13 of the Convention.

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MINIKAYEV v. RUSSIA JUDGMENT

III. ALLEGED VIOLATION

CONVENTION

OF

ARTICLE

OF

THE

76. The applicant complained under Article 5 1 and 3 of the

Convention that he had been detained pending investigation and trial
without relevant and sufficient reasons. The Court will examine this
complaint under Article 5 3 of the Convention, which reads, in so far as
relevant, as follows:
Everyone arrested or detained in accordance with the provisions of paragraph 1 (c)
of this Article shall be ... entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.

77. The Government contested that argument. When detaining the

applicant in custody, the domestic courts had taken into consideration the
seriousness of the charges against him and the evidence submitted by the
investigator that the applicant might abscond, reoffend, threaten witnesses
or other parties to the proceedings, destroy evidence or otherwise interfere
with the administration of justice.
78. The applicant maintained his complaint.
Admissibility
79. The Court observes that, while the applicants pre-trial detention
ended on 30 December 2006 when the District Court found him guilty of
robbery and sentenced him to eleven years imprisonment, he did not
introduce his complaint in this regard until 10 October 2007, more than ten
months after his pre-trial detention ended.
80. The Court also observes that the Government did not raise an
objection as to the applicants compliance with the six-month rule, and
reiterates that it is a rule of public policy and that it consequently has
jurisdiction to apply it of its own motion, even if the Government have not
raised that objection (see Sabri Gne v. Turkey [GC], no. 27396/06, 29,
29 June 2012). Accordingly, the Court finds that, in the circumstances of the
present case, the complaint was lodged out of time and must be rejected in
accordance with Article 35 1 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
81. The applicant complained under Article 6 of the Convention that the
criminal proceedings against him had been unfair. In particular, he claimed
that his right not to incriminate himself had been violated. Article 6, in so
far as relevant, reads as follows:
In the determination of ... any criminal charge against him, everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...

MINIKAYEV v. RUSSIA JUDGMENT

17

Admissibility
1. The parties submissions
82. The Government submitted that the criminal proceedings against the
applicant had been fair. The applicant had been advised of the right not to
incriminate himself during questioning and the subsequent use of the
records of his questioning in the criminal proceedings against him. He had
only been questioned in the presence of his lawyer. On one occasion he had
chosen to remain silent. The trial court had examined the evidence presented
by the parties to the proceedings thoroughly, and had based its conclusions
on the evidence in its entirety and not only on the applicants confession.
83. The applicant maintained his complaint. He reiterated that the police
officers had made him write a confession to the robbery of 30 December
2004 while still in police custody on 22 March 2005. His lawyer had not
been present. The date of 20 April 2005 indicated on it had been forged. His
lawyer, whose representation had been questionable anyway, had not
always been summoned by the investigator. The applicant had been unable
to tell him about the ill-treatment because he had feared for his life. He
further submitted that his conviction had rested upon his confession. He
conceded that Kh., the victim of the robbery, had identified him as one of
the perpetrators. However, he considered her statements unreliable,
inconsistent and contradictory. His statements concerning the robbery of
22 March 2005 had also been given under duress. In the circumstances of
the case, it had been incumbent on the trial court to exclude all his
statements from evidence.
2. The Courts assessment
84. The Court reiterates that its duty under Article 19 of the Convention
is to ensure the observance of the engagements undertaken by the
Contracting States to the Convention. In particular, it is not its function to
deal with errors of fact or law allegedly committed by a domestic court
unless and in so far as they may have infringed rights and freedoms
protected by the Convention. While Article 6 guarantees the right to a fair
hearing, it does not lay down any rules on the admissibility of evidence as
such, which is primarily a matter for regulation under domestic law (see
Schenk v. Switzerland, 12 July 1988, 45-46, Series A no. 140).
85. It is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence for example, evidence
obtained unlawfully in terms of domestic law may be admissible or,
indeed, whether the applicant was guilty or not. The question which must be
answered is whether the proceedings as a whole, including the way in which
the evidence was obtained, were fair. This involves an examination of the
unlawfulness in question and, where violation of another Convention

18

MINIKAYEV v. RUSSIA JUDGMENT

right is concerned, the nature of the violation found (see, among other
authorities, Jalloh, cited above, 95).
86. Furthermore, particular considerations apply in respect of the use in
criminal proceedings of evidence obtained in breach of Article 3. The use of
such evidence, secured as a result of a violation of one of the core and
absolute rights guaranteed by the Convention, always raises serious issues
as to the fairness of the proceedings, even if the admission of such evidence
was not decisive in securing a conviction (see Gfgen, cited above, 165).
87. The Court further reiterates that the privilege against selfincrimination and the right to remain silent are generally recognised
international standards which lie at the heart of a fair procedure. Their aim
is to provide an accused person with protection against improper
compulsion by the authorities, and thus to avoid miscarriages of justice and
secure the aims of Article 6 (see John Murray v. the United Kingdom,
8 February 1996, 45, Reports 1996-I). This right presupposes that the
prosecution in a criminal case will seek to prove their case against the
accused without resorting to evidence obtained by coercion or oppression in
defiance of the will of the accused (see Jalloh, cited above, 100).
88. Turning to the circumstances of the present case, the Court observes
that all the statements made by the applicant in the course of the preliminary
investigation formed part of the evidence adduced against him by the
prosecution. The trial court found those statements admissible and referred
to them when finding the applicant guilty and convicting him.
89. As regards the applicants confession concerning his involvement in
the robbery of 30 December 2004, the Court notes that according to the
material in the applicants criminal case file, the applicant wrote a
confession on 20 April 2005 while held at the remand prison. He did not
challenge the validity of that date in the domestic proceedings. In his
application to the Court, however, he claimed that the date on the confession
had been forged, and that he had written the statement while in police
custody on 22 March 2005.
90. Regard being had to the material before it, the Court, in the absence
of any substantiation of the applicants allegation, cannot accept it as
credible. It will consider, for the purposes of an examination of the present
complaint, that the applicant wrote the confession on 20 April 2005.
91. While the Court finds it regrettable that the applicant was not
provided with legal assistance on 20 April 2005, it notes that he admitted to
his involvement in the robberies on several occasions while being
questioned by the investigator in the presence of a lawyer appointed to
represent him. The admissibility and reliability of the applicants statements
made in the course of the preliminary investigation were scrutinised in
adversarial proceedings before the trial and appellate courts, at which he
was present and represented and took ample opportunity to challenge the
evidence against him.

MINIKAYEV v. RUSSIA JUDGMENT

19

92. The Court also notes that the applicants statements were not the sole
or decisive evidence implicating him in the crimes he was found guilty of.
The trial court relied on the testimony of the victim and witnesses and
forensic evidence.
93. Consequently, notwithstanding the doubts that may subsist as to the
conduct of the police officers vis--vis the applicant following his arrest and
placement in police custody, the Court finds no indication in the present
case that he did not receive a fair trial as required by Article 6 1 of the
Convention.
94. It follows that this complaint is manifestly ill-founded and must be
rejected pursuant to Article 35 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
95. The applicant claimed 51,250 roubles (RUB) and 50,000 euros
(EUR) in respect of pecuniary and non-pecuniary damage respectively. In
his opinion, the amount he paid to the victim of one of the robberies should
be construed as the pecuniary damage he sustained.
96. The Government considered that the applicants claims should be
rejected. In the event the Court found a violation of his rights, the finding of
a violation would constitute sufficient just satisfaction.
97. The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this claim.
Conversely, it awards the applicant EUR 15,000 in respect of non-pecuniary
damage.
B. Costs and expenses
98. The applicant also claimed the following for the costs and expenses
incurred before the domestic courts and the Court. In particular, he claimed
EUR 250 for postage, photocopying and telephone expenses, and
EUR 4,650 for his legal costs. In this connection, he submitted that his
representative had spent twelve hours studying the material in the case file,
eight hours researching the relevant case-law, two hours communicating
with him and twenty-three hours preparing observations on his behalf.
According to the applicant, he provided an approximate estimate of his
postage and similar expenses. In view of their specific nature, it was
impossible to submit all the necessary receipts. He submitted postage
receipts for EUR 24.80 and RUB 1,507.40 in respect of his correspondence
with the Court. As regards his legal costs, the applicant asked to be
reimbursed directly into his representatives bank account.

20

MINIKAYEV v. RUSSIA JUDGMENT

99. The Government considered the receipts submitted by the applicant

illegible and his claims unsubstantiated.
100. According to the Courts case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and to the fact that legal aid was paid to the applicant, the Court
considers it reasonable to award the applicant EUR 1,210 for the
proceedings before the Court, plus any tax that may be chargeable to him on
that amount. EUR 30 of this is to be paid directly to the applicant and
EUR 1,180 into the bank account of the applicants representative in the
proceedings before the Court.
C. Default interest
101. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the alleged ill-treatment and
ineffectiveness of the ensuing investigation admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention
under substantive limb on account of the excessive use of force against
the applicant during his arrest;
3. Holds that there has been a violation of Article 3 of the Convention
under its procedural limb on account of the ineffective investigation into
the applicants allegations of ill-treatment;
4. Holds that there is no need to examine the complaint under Article 13 of
the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 2 of the Convention, the following amounts:
(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted

MINIKAYEV v. RUSSIA JUDGMENT

21

into the currency of the respondent State at the rate applicable at the
date of settlement;
(ii) EUR 1,210 (one thousand two hundred and ten euros), plus any
tax that may be chargeable to the applicant, in respect of costs and
expenses; EUR 30 is to be paid directly to the applicant, to be
converted into the currency of the respondent State at the rate
applicable at the date of settlement, and EUR 1,180 into the bank
account of the applicants representative in the proceedings before
the Court;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
6. Dismisses the remainder of the applicants claim for just satisfaction.
Done in English, and notified in writing on 5 January 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Stephen Phillips
Registrar

Luis Lpez Guerra

President