GASIMOV proti Ázerbajdžánu

THIRD SECTION

CASE OF GASIMOV v. AZERBAIJAN

(Application no. 37457/09)

JUDGMENT

STRASBOURG

20 January 2026

This judgment is final but it may be subject to editorial revision.

In the case of Gasimov v. Azerbaijan,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Canòlic Mingorance Cairat, President,
Lətif Hüseynov,
Vasilka Sancin, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 37457/09) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 June 2009 by a Russian national, Mr Polad Siyavush oglu Gasimov (Polad Siyavuş oğlu Qasımov – “the applicant”), who was born in 1969, was detained at the material time in Gobustan Prison in Baku and was represented by Mr A. Ismayilov (deceased in 2020), a lawyer who was practising in Baku;

the decision to give notice of the complaints under Article 3, Article 5 §§ 1 and 2 and Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;

the decision of the Russian Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

Having deliberated in private on 9 December 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. CHARGES AGAINST THE APPLICANT

1. The applicant served as an officer in the Russian military forces for an extended period. His last posting was at the Gabala Radar Station, a military facility located on the territory of Azerbaijan and leased by Russia. In 2005 the applicant retired and moved to Baku.

2. According to official records, on an unspecified date the Ministry of National Security (“the MNS”) received “operational information” that the applicant had been involved in espionage. On the basis of that information, on 29 January 2009 two MNS officers, E.J. and H.H., questioned P.H., an Azerbaijani military officer and the applicant’s former classmate at higher military school. P.H. stated that in 2001, at the instigation of the applicant, he had begun cooperating with the Russian secret services and working against Azerbaijan by obtaining and transmitting classified information (military secrets) to those services. On 2 February 2009 the Military Prosecutor’s Office carried out “operational search measures” in respect of the applicant.

3. On 4 February 2009 the applicant was summoned to the MNS, where two investigators from the Military Prosecutor’s Office, U.A. and B.B., questioned him. The applicant gave a statement similar to that of P.H.

4. On 5 February 2009 the applicant’s wife, N.G., filed a missing persons report with Nasimi district police station no. 19, complaining that the applicant had not been seen since 3 February 2009 and asking for help in establishing his whereabouts. She made a request to the same effect to the Russian embassy in Azerbaijan (“the embassy”). On the same day the embassy sent a request to the Ministry of Foreign Affairs of Azerbaijan (“the MFA”), asking it to assist by sending N.G.’s request for help to the Ministry of Internal Affairs of Azerbaijan.

5. According to an arrest record dated 7 February 2009, the applicant was arrested as a suspect at 6 p.m. that evening. During his questioning as a suspect, he gave a statement similar to his earlier statement.

6. On 9 February 2009 the applicant was charged with espionage under Article 276 of the Criminal Code. According to the charges, with the help of P.H., the applicant had obtained and transmitted military secrets to servicemen of the Russian Federal Security Service posted at the Gabala Radar Station, with the aim of compromising Azerbaijan’s security. The information in question had allegedly consisted of, inter alia, the locations of strategic military assets and details of Azerbaijani army trainings. P.H. was charged under Articles 274 (high treason) and 338.1 of the Criminal Code.

7. On the same day the Baku Military Court ordered that the applicant be placed in pre-trial detention in an MNS detention facility.

8. According to an interview record dated 9 February 2009, the applicant was questioned as an accused person and gave a statement in line with the above-mentioned charges and his earlier statements.

9. According to official records, V.M., a State-funded lawyer appointed for the applicant, was present at that interview and signed the above‑mentioned arrest and interview records.

10. On 9 February 2009 V.M. informed the applicant’s family that he had been arrested and detained at the MNS. The applicant’s family subsequently informed the embassy of that fact. On 11 February 2009 the embassy sent another letter to the MFA, emphasising that it had not been officially informed of the applicant’s arrest, in breach of the relevant bilateral agreements.

11. On 16 and 19 February 2009 the applicant’s family hired three lawyers to represent him. However, according to the applicant, those lawyers were not allowed to visit him or participate in the proceedings until 24 February 2009. On an unspecified date the applicant formally refused to be represented by the State-appointed lawyer.

12. In a letter dated 27 March 2009, Nasimi district police station no. 19 informed one of the hired lawyers that it had registered N.G.’s missing persons report, but that preliminary operational search measures to establish the applicant’s whereabouts had been unsuccessful.

13. According to the applicant, he was arrested at around 8.30 a.m. on 3 February 2009. His car was stopped by a group of unidentified individuals, who placed a bag over his head, handcuffed him and took him in another car to the MNS. At the MNS, he was confronted with P.H., who had given incriminating statements against him under torture inflicted by two MNS officers, E.J. and H.H. He was also threatened with retaliation (namely, the arrest of his father) if he did not confess to espionage. As a result of that psychological pressure, he made false incriminating and self-incriminating statements. During his detention, he had no access to a lawyer of his own choosing and no contact with his family. The State‑appointed lawyer was either absent during investigative measures or his presence was a mere formality. The applicant and P.H.’s detention between 3 and 7 February 2009 was not documented.

14. In addition to questioning the applicant and P.H., the investigating authorities carried out other investigative measures (for details see the appended table). In particular, they questioned the two MNS officers (E.J. and H.H.) as witnesses, along with a number of other individuals (namely, colleagues of the applicant and P.H. – “the non-MNS witnesses”). They also obtained a list of calls made to and from mobile phone numbers belonging to the applicant and P.H. The investigating authorities also ordered an examination of P.H. by a forensic expert.

2. COMPLAINTS OF UNLAWFUL DETENTION

15. On 8 April 2009 the applicant lodged a complaint with the Baku Military Court, alleging that his detention between 3 and 7 February 2009 had been unrecorded and unacknowledged. In support of his allegation, he referred to, inter alia, the fact that during that period he had been questioned on the premises of the MNS and that his mobile phone records indicated no outgoing calls after 3 February 2009.

16. By a decision of 17 April 2009 the Baku Military Court dismissed the applicant’s complaint as groundless.

17. The applicant appealed, but on 1 May 2009 the Baku Court of Appeal dismissed the appeal.

3. THE APPLICANT’S TRIAL

18. During his trial, the applicant denied committing the crime with which he had been charged. He alleged that between 3 and 7 February 2009 he had been unlawfully detained at the MNS and that he had been subjected to psychological pressure (namely, threats of his father’s arrest) and forced to make false self‑incriminating and incriminating statements. He also alleged that either the State-appointed lawyer had been absent during the investigative measures or his presence had been a mere formality.

19. P.H. also stated that between 3 and 7 February 2009 he had been in unrecorded and unacknowledged detention at the MNS, where he had been tortured by MNS officers (E.J., H.H. and another officer) and forced to give false statements incriminating himself and the applicant. He alleged that he had suffered visible injuries and that his former cellmate, A.M., had seen them.

20. The applicant and P.H. tried to contest the official account of the events and the reliability of the main evidence used against them, by submitting several requests and arguments, which were not granted or addressed (for details see the appended table).

21. On 7 December 2009 the Military Serious Crimes Court found the applicant guilty of espionage under Article 276 of the Criminal Code. He was sentenced to twelve years’ imprisonment. P.H. was also found guilty as charged. In finding the applicant guilty, the trial court based its decision on (i) the incriminating and self‑incriminating statements given by the applicant and P.H. at the pre-trial stage; (ii) the statements given by the above‑mentioned MNS officers and non-MNS witnesses; and (iii) the above‑mentioned telephone data (see paragraph 14 above and the details given in the appended table).

22. The applicant appealed against the judgment and requested that he be acquitted. However, the higher courts upheld his conviction (for details see the appended table).

4. COMPLAINTS

23. The applicant complained, under Article 5 § 1 of the Convention, that his detention between 3 and 7 February 2009 had been unlawful because it had been unrecorded and unacknowledged. He claimed that he had not been informed of the reasons for his detention, as required by Article 5 § 2 of the Convention.

24. He also complained, under Article 3 of the Convention, that during that detention he had been ill-treated (namely, subjected to psychological pressure) and that the domestic authorities had failed to conduct an effective investigation in that regard.

25. The applicant further complained, under Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention, that the criminal proceedings against him had been in breach of various fair-trial guarantees. In particular, he alleged that the proceedings had been instituted on the basis of false statements given under duress and that he had not been given the opportunity either to challenge that evidence effectively or to adduce evidence in his favour. Furthermore, he had not been informed, in a language which he understood or in sufficient detail, of the nature and cause of the accusation against him; he had not been afforded adequate facilities to prepare his defence; he had been deprived of access to effective legal assistance of his own choosing; and he had not had the possibility of obtaining the attendance of witnesses on his behalf under the same conditions as witnesses against him or of examining the witnesses against him.

THE COURT’S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

26. The applicant maintained his complaint under Article 5 § 1 as summarised in paragraph 23 above.

27. The Government referred to the official record of the applicant’s arrest as a suspect and argued that he had not been arrested until 7 February 2009.

28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

29. The applicable general principles concerning unlawful arrest and detention have been summarised in Nagiyev v. Azerbaijan (no. 16499/09, §§ 54-57, 23 April 2015), and Nasirov and Others v. Azerbaijan (no. 58717/10, §§ 46‑47, 20 February 2020).

30. In the present case, the parties are in dispute as to the date on which the applicant’s detention began, with the applicant maintaining that he was arrested on 3 February 2009.

31. According to the official record on which the Government based their arguments (see paragraph 5 above), the applicant was arrested as a suspect at 6 p.m. on 7 February 2009. However, the Court observes inconsistencies between that information and other documents in the case file which corroborate the applicant’s version of events.

32. The Court notes in that connection that on 5 February 2009 the applicant’s wife filed a missing persons report with the police, complaining that her husband had disappeared on 3 February 2009. According to the letter of 27 March 2009 sent by Nasimi district police station no. 19, the police registered the complaint but were unable to locate the applicant, despite having taken preliminary operational search measures in this connection. The Court also takes note of the letters sent by the embassy to the MFA relating to the applicant’s disappearance on 3 February 2009 and further correspondence with the authorities in this connection, as well as the testimony of several witnesses concerning his disappearance on that date (see the details given in the appended table). In addition, when arguing in the domestic court proceedings that he had been unlawfully detained from 3 to 7 February 2009, the applicant produced his mobile phone records, which did not show any outgoing calls after 3 February 2009. Furthermore, according to the case file material, on 4 February 2009 the applicant was at the MNS, where investigators from the Military Prosecutor’s Office questioned him. Lastly, the MNS did not provide the applicant with the extract from the logbook of its temporary detention facility and, in response to the trial court’s enquires in this connection, failed to produce it at trial, claiming that the time‑limit for keeping the logbook had expired.

33. In these circumstances, the Court considers that serious questions arose in relation to the applicant’s complaint under Article 5 § 1 which called for specific answers and comments on the facts. In view of the Government’s failure to provide convincing and relevant evidence capable of rebutting the applicant’s version of events and given the consistent and plausible nature of the applicant’s submissions, the Court accepts the applicant’s version of events and concludes that he was deprived of his liberty on 3 February 2009.

34. As regards the question of whether the applicant’s detention from 3 February 2009 to 6 p.m. on 7 February 2009 was “lawful”, the Court notes that it was not documented in any way and constituted unrecorded and unacknowledged detention, which, as the Court has consistently held, is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision (see Nagiyev, § 64; and Nasirov and Others, § 49, both cited above).

35. There has accordingly been a violation of Article 5 § 1 of the Convention.

2. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION

36. The applicant maintained his complaints under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention as summarised in paragraph 25 above.

37. The Government submitted, inter alia, that the criminal proceedings against the applicant had been fair. The domestic courts’ judgments and decisions had been reasoned and based on evidence assessed fairly. The applicant had been given the opportunity to challenge the evidence against him, to oppose its use and to submit several requests of his own. He had also been represented by a State‑funded lawyer and later by hired lawyers.

38. The Court notes that these complaints, which fall under Article 6 §§ 1 and 3 of the Convention, are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

39. The requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010). The Court will therefore examine the complaints under both provisions taken together. In so doing, it will examine the various grounds giving rise to the present complaints in order to determine whether the proceedings, considered as a whole, were fair (see, for a similar approach, Asadbeyli and Others v. Azerbaijan, nos. 3653/05 and 5 others, § 130, 11 December 2012).

40. In several cases against Azerbaijan, the Court has previously found a violation of Article 6 where the domestic courts failed to adequately address important arguments pertinent to the applicants’ line of defence, including their objections against evidence allegedly obtained under duress; relied on questionable evidence; or failed to address serious concerns about the reliability (lawfulness) of evidence, including legitimate concerns about the possible planting of evidence and covert unlawful links between the prosecuting authorities and the witnesses used against the applicants (see, among other authorities, Asadbeyli and Others, cited above, §§ 134-39; Sakit Zahidov v. Azerbaijan, no. 51164/07, §§ 50-59, 12 November 2015; Fatullayev v. Azerbaijan (no. 2), no. 32734/11, §§ 84-103, 7 April 2022; Zayidov v. Azerbaijan (no. 3), no. 60824/08, §§ 95-110, 19 January 2023; and Dursun Aliyev v. Azerbaijan, no. 20216/14, §§ 124-45, 27 April 2023).

41. Turning to the present case, the Court observes that, as in the above‑cited cases, the applicant attempted to contest the official account of the events and the reliability of the main evidence used against him. The arguments raised by him were pertinent to his line of defence. However, despite the seriousness of his allegations, the domestic courts ignored – or failed to adequately address – the arguments and evidence supporting them. In particular, they did not attach any weight to the applicant’s retraction of his initial self‑incriminating statements and did not conduct an independent and comprehensive examination of his allegations of ill‑treatment. Similarly, the domestic courts failed to attach any importance to the fact that P.H. – the key witness in the case – had given incriminating statements against him during the pre-trial stage but had retracted those statements and later expressly testified in his favour during the trial. The domestic courts based their judgments primarily on the pre-trial statement of that witness.

42. The Court considers that, in the absence of any proper judicial review of the reliability of the evidence used against the applicant, the weight given to it raises serious issues as to the fairness of the proceedings.

43. Lastly, it does not appear that the applicant was given an effective opportunity to contact his family and hire a lawyer following his arrest, instead, the applicant was assigned a State-funded lawyer. That lawyer did not take any procedural actions on his behalf. Various requests and complaints on the applicant’s behalf, including those concerning ill‑treatment, were lodged only after lawyers of his own choosing began representing him. All the key evidence later used against him in court was obtained at the pre-trial stage, when only the State‑funded lawyer appointed for him was involved in the proceedings and he did not have access to lawyers of his own choosing. The State‑funded lawyer’s inaction shows that the applicant was deprived of effective legal assistance during the most crucial period of the criminal proceedings against him (see, for general principles, Dvorski v. Croatia [GC], no. 25703/11, §§ 76-82, ECHR 2015).

44. In view of all the above, the Court concludes that the applicant’s right to challenge the evidence against him effectively, his right to adduce evidence in his favour, his right to a reasoned decision and his right to effective legal assistance were breached.

45. There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention on account of the unfairness of the criminal proceedings taken as a whole (for a similar approach see cases cited in paragraph 40 above; and Ayetullah Ay v. Turkey, nos. 29084/07 and 1191/08, § 196, 27 October 2020).

3. OTHER COMPLAINTS

46. The applicant raised other complaints, relying on Article 5 § 2 and Article 6 § 3 (a) of the Convention (see paragraphs 23 and 25 above). Having regard to the facts of the case, the parties’ submissions and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine these complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

4. REMAINING COMPLAINT

47. The applicant also complained, under Article 3 of the Convention, that during his detention he had been ill-treated and that the domestic authorities had failed to conduct an effective investigation in that regard (see paragraph 24 above). The Court observes in this connection that the applicant did not lodge a criminal complaint about the alleged ill-treatment before the relevant prosecuting authorities; nor did he lodge an ill-treatment complaint under the judicial supervision procedure during the pre-trial investigation. Instead, he raised his ill-treatment complaint during his own trial, before the courts which did not take cognisance of the merits of that complaint and did not refer the complaint to the relevant prosecuting authorities for investigation into the actions of the alleged perpetrators. The Court therefore considers that this complaint does not meet the admissibility criteria set out in the Convention, as the applicant failed to exhaust the relevant domestic remedies (compare, among many other cases, Kunqurova v. Azerbaijan (dec.), no. 5117/03, 23 June 2005; Akif Mammadov v. Azerbaijan (dec.), no. 46903/07, §§ 29-32, 13 May 2014; Abbas and Others v. Azerbaijan [Committee], nos. 69397/11 and 3 others, §§ 69-71, 13 July 2017; and Amiraslanli v. Azerbaijan (dec.) [Committee], no. 64422/19, §§ 16-19, 18 June 2024). It follows that this complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

48. The applicant claimed 4,000 euros (EUR) and EUR 40,000 in respect of pecuniary and non-pecuniary damage respectively and EUR 5,550 in respect of costs and expenses incurred before the domestic courts and the Court.

49. The Government argued, inter alia, that the claims were unsubstantiated and excessive.

50. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. Ruling on an equitable basis, it awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

51. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 5 § 1 of the Convention and under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention admissible and the complaint under Article 3 of the Convention inadmissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention;
3. Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention on account of the unfairness of the criminal proceedings taken as a whole;
4. Holds that there is no need to examine the admissibility and merits of the remaining complaints;
5. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 January 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Canòlic Mingorance Cairat
Deputy Registrar President

APPENDIX