Jury statements to the media during and after the trial. Information regarding the jurors of the case from the internet. Violation of a fair trial due to doubts regarding the impartiality of a court

JUDGMENT

Tikhonov and Khasis v. Russia 16.02.2021 (app. no.  12074/12 and 16442/12)

see here

SUMMARY

In this case the applicants alleged that the court which had found them guilty of the murders of a
lawyer and a journalist (killed in Moscow in 2009) had not been impartial. They based their
allegations, among other things, on statements made by members of the jury in the media during
and after the trial court proceedings.
The Court held, in particular, that the national courts had not afforded sufficient guarantees to
exclude any legitimate doubt as to the impartiality of the jury which had delivered the guilty verdict
in the applicants’ case, and that the applicants’ right to be tried by an impartial tribunal had not
been respected.

PROVISION

Article 6 par. 1

Article 6 par. 2

PRINCIPAL FACTS

The applicants, Nikita Tikhonov and Yevgeniya Khasis, are Russian nationals who were born in 1980
and 1985 respectively. They are detained in Sosnovka and Partsa (Republic of Mordovia, Russia),
respectively.

In November 2009 the applicants were arrested on suspicion of involvement in the murders of Mr
Stansislav Markelov, a lawyer and human-rights activist, and Ms Anastasia Baburova, a journalist,
earlier that year in Moscow.

In July 2010 they were charged with aggravated murder, illegal possession of firearms and forgery
and use of forged documents.

In December 2010 the case was referred to the Moscow City Court for trial. The case was assigned to
Judge N. The applicants requested a jury trial.

At the end of January 2011 the president of the court removed Judge N. from the case and assigned
it to Judge Z., who subsequently called a 12-member jury.

In April 2011 D., a member of the jury, stood down and was replaced by a substitute member. A few
days later she gave two interviews in which she claimed that certain members of the jury (M. and N.)
had exerted pressure on the jury. She also said that the registry employee had told her to state
“family reasons” as grounds for withdrawing from the case.

At a hearing in April 2011 the applicants requested Judge Z. to discharge the jurors M. and N., basing
their request on the statements made by D. to the media. After inviting M. and N. to comment on
the request, Judge Z. rejected it.

At the close of the trial Judge Z. read out his directions to the members of the jury, without
specifying that they should disregard any information published in the media to which they may
have had access during the trial.

In April 2011 the applicants were found guilty (by eight votes to four) of the aggravated murder of
Mr Markelov, committed as part of an organised group. Mr Tikhonov was also found guilty (by eight
votes to four) of Ms Baburova’s murder.

In May 2011 they were sentenced to life imprisonment (Mr Tikhonov) and 18 years’ imprisonment
(Ms Khasis).

A few days later a website published an interview with the jury member M. in which the latter
responded to the statements made by D. after she had stood down from the case.

The applicants subsequently appealed, alleging in particular a breach of their right to be tried by an
independent and impartial tribunal and their right to be presumed innocent. They maintained,
among other things, that the juror M. had not complied with his obligation not to search for
information about the case other than in the context of the judicial examination; that he and four
other jury members had read articles published on the Internet; and that all the members of the jury
had discussed the information contained in those articles.

In September 2011 the Supreme Court of the Russian Federation upheld the judgment of May 2011
and dismissed the applicants’ case.

Relying on Article 6 § 1 (right to a fair trial/right to an independent and impartial tribunal), the
applicants alleged that the court which conducted the criminal proceedings against them had not
been impartial. They based their allegations, in particular, on the statements made by members of
the jury to the media and at one of the hearings. They also relied on Article 6 § 2 (presumption of
innocence).

THE DECISION OF THE COURT…

Article 6 § 1 (right to a fair trial): complaint alleging a lack of impartiality of the jury

The Court noted that Judge Z. had not attempted to establish the truth of the allegations concerning
N.’s conduct, and especially the discussion she had allegedly had with a member of the court’s
registry. The judge could have questioned the remaining members of the jury about the alleged
conversation and the views that N. had expressed about the case.

The Court also observed that M. had admitted regularly consulting various online sources in order to
stay informed about the trial, and sharing that information with the other members of the jury; by
so doing, he had confirmed part of the statements on which the request to discharge the jurors in
question had been based. However, Judge Z. had not sought to determine whether the jury’s
impartiality had been undermined by the information conveyed to its members, or to what extent
that might have been the case. Likewise, Judge Z. had not questioned the other members of the jury
to ascertain whether they were capable of remaining impartial after becoming aware of the
information conveyed by M.

Furthermore, it did not appear from the case file that during the trial, and in particular after
questioning M., Judge Z. had reminded the jury of the importance of not searching for information
on the case in the media, including on the Internet. It was true that he had reminded the members
of the jury that they should disregard information published in the media, but those reminders had
been issued before the hearing of 18 April 2011, at which M. had expressly admitted consulting
online sources on a regular basis during the trial and sharing the resulting information with his fellow
jury members. Moreover, although M., as the foreman of the jury, had assured the judge throughout
the trial that the jury members “[had] not discussed the case among [themselves]”, he had stated at
the hearing of 18 April 2011 that “when [the jury had retired] to the deliberations room after the
taking of evidence, [they had only discussed] whether that evidence matched the other evidence”.

Against that background, the Court considered that the directions issued by Judge Z. before the
hearing of 18 April 2011 had been insufficient to exclude all reasonable doubt as to the jury’s
impartiality. Given that a member of the jury had expressly admitted reading articles on the Internet
about the trial and sharing the resulting information with the other members of the jury, Judge Z.
should have issued additional directions to the jury in clear and forthright terms so as to satisfy
himself that the court could be regarded as impartial, and if not satisfied should have discharged the
jury. Furthermore, in the directions which he had issued at the close of the trial, the judge had not
reminded the members of the jury that they should disregard any information in the media to which
they may have had access during the trial, including through M.

Lastly, the Court noted that the Supreme Court had not taken account of the fact that Judge Z. had
not sought either to determine the content of the information which M. had passed on to the other
jury members or to verify whether the latter had been capable of remaining objective and impartial
after being made aware of that information.

The Supreme Court had also declined to take account of the published material attached by the
applicants to their appeal pleadings, on the grounds that D. had not taken part in the jury’s
deliberations. However, in their respective memorials the applicants had relied not only on the
interview given by D. on 16 April 2011 but also on the interview with M., which had taken place on
18 May 2011 and thus after their conviction. In that interview M. had cited at least three media
sources which he had consulted during the trial. He had also stated that four other members of the
jury had done the same and that during the trial all the jurors had “shared information” from the
media sources in question. This was new evidence which could not have been examined by Judge Z.,
since the interview had taken place after 6 May 2011, the date of delivery of the judgment. By
refusing to take that interview into account, the Supreme Court had remained silent on the subject
of M.’s statements, without stating why it had not taken this important element into consideration.
Accordingly, that court had failed to take adequate measures to resolve the doubts that persisted as
to the reality and nature of the alleged events.

The Court held that the national courts had not afforded sufficient safeguards to exclude any
legitimate doubt as to the impartiality of the jury which had found the applicants guilty. The
applicants’ right to be tried by an impartial tribunal had therefore not been respected and there had
been a violation of Article 6 § 1 of the Convention.

Other article

The Court rejected the applicants’ complaint concerning the presumption of innocence (Article 6 § 2
of the Convention) as being manifestly ill-founded. It noted in particular that the press articles of
18 January and 27 December 2010 had been published in privately owned newspapers and had not
quoted or referred to any remarks made by identifiable representatives of the State. It also noted
that the remarks made by the author of the article of 6 November 2009, published in the official
government newspaper, could not trigger the State’s responsibility under Article 6 § 2, as there was
nothing to prove that the journalist had been deprived of his journalistic freedom.

Just satisfaction (Article 41)

The Court held that the finding of a violation constituted sufficient just satisfaction in respect of the
non-pecuniary damage sustained by the applicants.

Separate opinions

Judge Pavli expressed a concurring opinion. Judge Dedov expressed a dissenting opinion. These
opinions are annexed to the judgment