Last Updated on February 17, 2021 by LawEuro
Information Note on the Court’s case-law 248
February 2021
Tikhonov and Khasis v. Russia – 12074/12 and 16442/12
Judgment 16.2.2021 [Section III]
Article 6
Criminal proceedings
Article 6-1
Impartial tribunal
Refusal to discharge jury members who had read online articles concerning the trial and who had discussed the trial with a person not involved in examining the case: violation
Facts – The criminal case against the applicants, who were being prosecuted for murder among other offences, was referred for trial to a court comprising a judge and jury.
On 16 April 2011 D., a juror who had stood down, gave an interview to a journalist who published it on his blog. D. stated in the interview that some jurors had exerted pressure on the jury: M. had allegedly read out each day articles published on the Internet, while N. had told a member of the court’s registry that the jury would deliver a guilty verdict.
At the hearing of 18 April 2011 the applicants requested Judge Z. to discharge the jurors M. and N. on grounds of bias. The judge invited M. and N. to comment on the request, and then rejected it.
In a judgment of 6 May 2011 the court convicted the applicants, basing its ruling on the jury’s guilty verdict. The applicants appealed unsuccessfully against the judgment on the ground that the jurors M. and N. had lacked impartiality. They relied in that connection on D.’s interview but also on an interview given by the jury member M., published on a website on 18 May 2011, in which he confirmed that he had consulted various online sources during the trial, that four other members of the jury had done the same, and that all the jurors had “shared information” from the media sources in question.
The applicants alleged that they had not been tried by an impartial tribunal.
Law – Article 6 § 1
On 18 April 2011 the applicants had requested that the jurors M. and N. be discharged, relying on the statements made by D. on 16 April 2011. The allegations in question did not immediately appear to be manifestly devoid of merit to the point where Z., the presiding judge, was not required to take appropriate action to verify that the court satisfied the requirement of impartiality set out in Article 6 § 1. Furthermore, under domestic law, members of the jury were required to refrain from expressing their views about the case outside of the deliberations room, from discussing the circumstances of the case with persons not involved in examining the case, and from searching for information about the case other than in the context of the judicial examination. According to D.’s statements, M. and N. had failed to comply with those obligations.
Following the request for M. and N. to be discharged, Judge Z. had heard the parties’ observations at the hearing of 18 April 2011 and had given the jury members concerned an opportunity to comment on the merits of the request.
Nevertheless, Judge Z. had not attempted to establish the truth of the allegations concerning N.’s discussion with a member of the court’s registry. While N. had not been obliged to comment on the request to discharge her, the judge could have questioned the remaining members of the jury in order to ascertain the truth of the allegations, given that it had not been claimed that the conversation had taken place during the jury’s deliberations, which were protected by virtue of the secrecy of deliberations under the law.
Furthermore, 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. In the absence of such verification the assurances given by M. as to his ability to remain objective and impartial had been insufficient to exclude all reasonable doubt in that regard. Moreover, 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 received from M.
During the trial, and in particular after questioning M., Judge Z. had not reminded the members of the jury of the importance of not searching for information on the case in the media. And although he had reminded them twice that they should disregard any information published in the media, those reminders had been issued before the hearing of 18 April 2011 at which M. had been questioned. Furthermore, even though, in the absence of any evidence to the contrary, it was reasonable to suppose that the jury would follow the judge’s instructions, in the circumstances of the present case there had been a number of factors capable of rebutting that presumption. The directions issued by Judge Z. before the hearing of 18 April 2011 had been insufficient to exclude all reasonable doubt as to the impartiality of the jury. The judge 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. In addition, in the directions which he 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.
In appealing against the judgment of 6 May 2011 the applicants had again complained of a lack of impartiality on the part of the jury members M. and N., and had also produced before the appeal court the statements made by M. in the interview of 18 May 2011.
However, the Supreme Court had noted that there was no evidence to support the applicants’ argument concerning “the gathering and dissemination to the other members of the jury, by [M.], of information concerning the criminal case from sources outside the proceedings”. That assessment did not take 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 members of the jury or to verify whether the latter were capable of remaining objective and impartial after being made aware of that information. The Supreme Court had declined to take into account 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, the interview with M., which had taken place after the delivery of the judgment of 6 May 2011, had contained new evidence which could not have been examined by Judge Z. The Supreme Court had remained silent on the subject of this important element, without stating why it had not taken it into consideration. It had therefore failed to take adequate measures to resolve the doubts that persisted as to the reality and nature of the alleged events and thus to dispel any doubts as to the jury’s impartiality.
Accordingly, 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 in the present case.
Conclusion: violation (six votes to one).
Article 41: finding of a violation sufficient in respect of non-pecuniary damage.
(See also Remli v. France, 16839/90, 23 April 1996, Legal summary; Pullar v. The United Kingdom, 22399/93, 10 June 1996, Legal summary; Gregory v. The United Kingdom, 22299/93, 25 February 1997, Legal summary; Farhi v. France, 17070/05, 16 January 2007, Legal summary)
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