The decision of the ECHR of February 16, 2021 in the case "Tikhonov and Khasis (Tikhonov and Khasis) v. the Russian Federation" (aplications N 12074/12 and 16442/12).
In 2011, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were consolidated and communicated to the Russian Federation.
Aplications about the refusal to exclude jurors who read online articles about the trial and discussed the trial with a person who was not a participant in the trial were successfully considered in the case. The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The criminal case against the applicants, who were accused of committing murders and other crimes, was transferred to the Moscow City Court composed of a judge and a jury.
On April 16, 2011, juror D., who recused himself from participating in the case, gave an interview to a journalist who published the text of the interview in a blog. D. claimed in an interview that some jurors exerted pressure on others: presumably, juror M. read aloud newspaper articles from the Internet every day, while juror N. told the staff of the court registry that the jury had reached a verdict of "guilty".
At the hearing on April 18, 2011 , the applicants asked Judge Z. to exempt M. and N. jurors from participation in the case because of their bias. The judge invited M. and N. to comment on this petition, and then rejected it.
By a verdict of May 6, 2011, the court found the applicants guilty, based on the verdict of the jury. The applicants unsuccessfully appealed the verdict on the grounds that the jurors M. and N. were not impartial. The applicants referred in this respect to D.'s interview, as well as to an interview given by juror M. and which was published on the Internet on May 18, 2011, in which M. He confirmed that during the trial he had turned to numerous information sources on the Internet, that four other jurors had done the same, and that all jurors had "shared information" from the media in question.
The applicants claimed that their case had not been examined by an impartial court.
Regarding compliance with paragraph 1 of article 6 of the Convention. On April 18, 2011, the applicants requested that the jurors M. and N. be removed from participation in the case, referring to D.'s statements of April 16, 2011. At first glance, the allegations in question did not seem so obviously unfounded that the presiding Judge Z. should not have taken the necessary steps to verify that the court met the requirement of impartiality set out in paragraph 1 of article 6 of the Convention. In addition, according to the legislation of the Russian Federation, jurors are obliged to refrain from expressing their opinions on cases outside the conference room, from discussing the circumstances of the case with persons not participating in its consideration, and from searching for information about the case, except in the context of the trial. According to D., M. and N. did not fulfill these obligations.
After the receipt of the petition for the recusal of the jurors M. and N. Judge Z. listened to the comments of the parties at the hearing on April 18, 2011 and gave the said jurors the opportunity to comment on the provisions of the petition.
Nevertheless , Judge Z. I did not try to establish the truth of the statements regarding the conversation of juror N. with the staff of the registry of the court. Although N. was not obliged to comment on the motion to dismiss her, the judge could interview the remaining jurors to verify the truth of the allegations, given that it was not claimed that the conversation in question took place during a jury meeting, which was protected by the principle of secrecy of the jury meeting according to the law.
In addition, juror M. admitted that he regularly looked through information sources on the Internet in order to get an idea of the course of the trial, and shared this information with other jurors; in doing so, he confirmed part of the allegations on which the motion to dismiss the jurors was based. However , Judge Z. I did not seek to verify whether the impartiality of the jurors was called into question by the transmission of relevant information to the jury or to what extent impartiality could be called into question. In the absence of such verification, the assurances expressed by M. regarding his ability to remain objective and impartial were insufficient to exclude all reasonable doubts in this regard. Moreover, Judge Z. I did not interrogate other jurors to check whether they could remain impartial after receiving information from M.
During the trial and especially after the interrogation of M. Judge Z. reminded the jurors of the importance of refraining from searching for information in the media. And although the judge twice reminded the jurors that they should ignore any information from the media, these reminders were issued before the meeting on April 18, 2011, at which M. was interrogated. Moreover, even if, in the absence of any evidence to the contrary, there were grounds to assume that the jurors would have followed the judge's instructions, there were a number of factors in the circumstances of the present case that could refute such a presumption. The instructions of Judge Z., announced before the trial on April 18, 2011, were insufficient to exclude all reasonable doubts about the impartiality of the jurors. The judge had to give additional instructions to the jurors in clear and understandable terms to make sure that the court could be considered impartial, and in case of lack of satisfaction with the results of his actions, the judge had to dismiss the jurors. In addition, in the instructions that the judge gave before the conclusion of the trial, the judge did not remind the jurors that they had to ignore any information from the media that they had access to during the trial.
Appealing against the verdict of May 6, 2011, the applicants again pointed to the partiality of the jurors M. and N., and also submitted to the court of second instance the statements of M. from the interview of May 18, 2011.
However, the Supreme Court of the Russian Federation noted that there was no evidence that would support the applicants' argument about "collecting and distributing to other jurors [juror M.] information about the criminal case from external sources." This assessment did not take into account the fact that Judge Z. I did not try to determine the content of the information that M. reported to other jurors, or to check whether the juror M. could remain objective and impartial, received the specified information. The Supreme Court of the Russian Federation refused to take into account the published materials attached by the applicants to their complaint, on the grounds that D. did not take part in the jury meeting. However, M.'s interview, which took place after the verdict on May 6, 2011, contained new evidence that could not be examined by Judge Z. The Supreme Court of the Russian Federation did not comment on this important point, without indicating why it did not take this information into account. Therefore, the Supreme Court of the Russian Federation did not take appropriate measures to resolve the doubts that existed in relation to the reality and nature of the alleged events, and thus did not resolve doubts about the impartiality of the jurors.
Consequently, the courts of the Russian Federation did not provide sufficient guarantees to exclude any legitimate doubts about the impartiality of the jurors who found the applicants guilty. Consequently, the applicants' right to have their case examined by an impartial court was not respected in the present case.
In the case, the requirements of paragraph 1 of Article 6 of the Convention were violated (adopted by six votes in favor with one against).
In the application of article 41 of the Convention. The European Court ruled that the finding of a violation of the Convention is in itself sufficient just compensation for moral damage caused.