Last week I noted work about free speech and vilification. It is interesting to see the subsequent European Court of Human Rights chamber judgment in Beizaras and Levickas v. Lithuania (application no. 41288/15).
The Court held unanimously that there had been a violation of Article 14 of the European Convention on Human Rights (ie regarding prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) alongside a violation of Article 13 (right to an effective remedy). In considering online homophobic hate speech the Court notes that the case raised questions about the State’s responsibility to protect individuals from homophobic hate speech.
The applicants - Pijus Beizaras and Mangirdas Levickas - are two young men in a same-sex relationship and resident in Lithuania. In December 2014 Beizaras posted a photograph of them kissing on his Facebook page, which went viral, with hundreds of comments in Lithuania, mostly calls for the applicants to be “castrated”, “killed”, “exterminated” and “burned” because of their same-sex affinity. Some were about LGBT people in general; others personally threatened the applicants.
Lithuania's prosecuting authorities and courts refused to launch a pre-trial investigation for incitement to hatred and violence against gay people, finding that the couple’s behaviour had been provocative and that the comments, although “unethical”, did not merit prosecution.
The ECHR found that the applicants’ sexual orientation had played a role in the way they had been treated by the authorities, which had quite clearly expressed disapproval of them so publicly demonstrating their homosexuality when refusing to launch a pre-trial investigation. Such a discriminatory attitude meant that the applicants had not been protected, as was their right under the criminal law, from undisguised calls for an attack on their physical and mental integrity.
After being targeted online the two men had turned to the National Lesbian, Gay, Bisexual and Transgender Rights Association, a non-governmental organisation, asking it to complain to the authorities and to request that the government initiate criminal proceedings for incitement to hatred and violence against gay people. The prosecutor decided not to initiate a pre-trial investigation, indicating that he considered that the authors of the comments had merely been “expressing their opinion” and that although they had reacted “unethically”, the behaviour did not warrant prosecution, in line with the Supreme Court’s practice in such cases.
Lithuania's domestic courts then fully endorsed the prosecutor’s stance in a final ruling of February 2015, adding that the applicants’ behaviour had been “eccentric” and deliberately provocative. In particular, the applicants could have foreseen that posting a picture of two men kissing would not contribute to social cohesion and the promotion of tolerance in Lithuania, a country where “traditional family values were very much appreciated”. It would have been preferable for the applicants to share their picture with “like-minded people”, especially since Facebook gave the possibility to restrict access to just friends.
Relying on European Convention on Human Rights Article 14 (prohibition of discrimination), taken in conjunction with Article 8 (right to respect for private and family life), the applicants argued in August 2015 that they had been discriminated against on the grounds of sexual orientation through the authorities’ refusal to launch a pre-trial investigation into the hate comments on the Facebook page.
They also argued that the refusal had left them with no possibility of legal redress, in breach of Article 13 (right to an effective remedy). Third-party comments regarding the application were received jointly from the AIRE Centre (Advice on Individual Rights in Europe), the European branch of the Lesbian, Gay, Bisexual, Trans and Intersex Association (“ILGA- Europe”), the International Commission of Jurists (ICJ) and the Human Rights Monitoring Institute (“the HRMI”).
The Court found in relation to Article 14 and Article 8 that the comments on Beizaras’s Facebook page had clearly affected the applicants’ psychological well-being and dignity, bringing the case within the scope of Article 8 and therefore Article 14.
The Government had acknowledged that the comments had been “offensive and vulgar”.
However, it denied that the applicants had experienced discriminated, arguing that decisions not to start a criminal investigation had had nothing to do with their sexual orientation. It argued that the decisions had been based on the applicants’ behaviour (which among other things had been provocative because of a cross woven into the second applicant’s jumper, potentially sparking conflict with people of a different cultural and religious background) and on the fact that the comments in question had not reached a level so as to be considered criminal.
The Court in contrast considered that the applicants’ sexual orientation had played a role in their been treatment by the authorities. Focussing on what they considered to be the applicants’ “eccentric behaviour”, Lithuania's criminal courts had expressly referred to their sexual orientation in their decisions. They had quite clearly expressed disapproval of the applicants so publicly demonstrating their sexual orientation when refusing to launch a pre-trial investigation, citing the incompatibility of “traditional family values” with social acceptance of homosexuality.
Because of that discriminatory attitude, the applicants had not been protected, as was their right under criminal law, from what could only be described as undisguised calls for an attack on their physical and mental integrity.
The ECHR found that the hate speech had been inspired by a bigoted attitude towards the gay community in general and that the same discriminatory state of mind had been at the core of the authorities’ failure to comply with the duty to investigate in an effective manner whether those comments had constituted incitement to hatred and violence. In downgrading the danger of such comments, the authorities had at the very least tolerated them.
The ECHR therefore found that the applicants had suffered discrimination on the grounds of their sexual orientation.
The Court further considered that Lithuania had not provided any justification showing that the difference in treatment had been compatible with the standards of the Convention.
Accordingly, the Court held that there had been a violation of Article 14, taken in conjunction with Article 8 of the Convention.
In relation. to Article 13 (right to an effective remedy)
the Court found that the Lithuanian Supreme Court’s case law as applied by the prosecutor (subsequently upheld by the domestic courts) had not provided for an effective domestic remedy for homophobic discrimination complaints.
In particular, the Court noted with concern that the Supreme Court’s case-law emphasised the “eccentric behaviour” of persons belonging to sexual minorities and their duty “to respect the views and traditions of others” when exercising their own rights.
Further, although the Supreme Court had previously examined homophobic speech, it had never been as serious as in the applicants’ case and the Court had thus not had the opportunity to clarify the standards to be applied.
That finding was borne out by statistics which showed that of the 30 pre-trial investigations regarding homophobic hate speech opened in Lithuania between 2012 and 2015, all had been discontinued. Indeed, the domestic court which had handed down the final ruling in the applicants’ case had even pointed out that opening criminal proceedings would have been a “waste of time and resources”.
The ECHR noted reports by international bodies such as the Council of Europe’s European Commission against Racism and Intolerance (ECRI) that there was growing intolerance towards sexual minorities in Lithuania and that the authorities lacked a comprehensive strategic approach to tackle racist and homophobic hate speech.
The ECHR therefore found that there had also been a violation of Article 13 of the Convention in denial of an effective domestic remedy for complaints about a breach of their private life owing to discrimination on account of sexual orientation.
