Genomics

'In Genes We Trust: Genetic Privacy in the Age of Precision Medicine' by Dean Southwood in Marc de Leeuw and Sonja van Wichelen (Eds) Personhood in the Age of Biolegality (Springer, 2020) 167-183 comments Rapid development in the area of precision medicine in recent decades has prompted a number of questions and concerns, despite its high promises. The field is charting new territory, not just for medicine but for law and ethics as well. The legal frameworks surrounding the use and abuse of genetic data and genetic privacy are troublingly thin, and an onslaught of personal genetic data seems just around the corner. A move toward collecting troves of previously unknowable personal data has also prompted questions around ethical ideas of legal and digital personhood. A deeper analysis into questions of law, ethics, and science needs to be done in order to identify and advocate for change in the legal sphere, and therefore preempt some of the main concerns surrounding precision medicine. A starting point for this analysis is a comparative review of the current legal frameworks dealing with genetic privacy across a number of Western jurisdictions. This then motivates a number of central questions around the ‘right to know’ certain genetic information and the levels to which this information should be disclosed to third parties.

Magnitsky

The Joint Standing Committee on Foreign Affairs, Defence and Trade is conducting an inquiry into whether Australia should enact legislation comparable to the United States' Magnitsky Act 2012.

The Terms of Reference are

 The Committee shall examine the use of targeted sanctions to address gross human rights abuses. 

The Committee shall have particular regard to: 

• The framework for autonomous sanctions under Australian law, in particular the Autonomous Sanctions Act 2011 (Cth) and the Autonomous Sanctions Regulations 2011 (Cth) 

• The use of sanctions alongside other tools by which Australia promotes human rights internationally 

• The advantages and disadvantages of the use of human rights sanctions, including the effectiveness of sanctions as an instrument of foreign policy to combat human rights abuses 

• Any relevant experience of other jurisdictions, including the US regarding their Global Magnitsky Human Rights Accountability Act (2016) 

• The advisability of introducing a new thematic regulation within our existing Autonomous Sanctions Regime for human rights abuses

The inquiry follows the 2018 Private Members Bill (from Michael Danby MP) - International Human Rights and Corruption (Magnitsky Sanctions) Bill 2018 - which was characterised as

The purpose of the International Human Rights and Corruption (Magnitsky Sanctions) Bill 2018 (The Bill) is to make provisions enabling sanctions to be imposed, at the discretion of the Minister, for the purposes of compliance with United Nations obligations or other international obligations; or for the purposes of preventing or responding to gross human rights abuse or violations; or acts of significant corruption. 

The Bill follows the precedent set by the Global Magnitsky Human Rights Accountability Act 2016 (US) and the Sanctions and Anti-Money Laundering Bill 2018 (UK), aimed at curbing the influence of foreign persons and entities who have engaged in activities deems illegal by international human rights law. 

The Bill extends powers to the Minster to allow sanctions to be incurred in circumstances which a person, persons or entities have violated international human rights or engaged in acts of significant corruption. 

The sanctions applied through this bill restrict the ability of these person(s) or entities from commercial dealings, trades or the use of assets within Australia. 

Further, the Bill allows for the Minister to restrict the immigration of person(s) or classes of person(s) who are deemed to have violated obligations outlined in international human rights law. ... 

the purpose of this Act is to regulate the activities of foreign persons, through sanctions in immigration, or finance or trade. The sanctions that are imposed by the Minister, through this Act, must be made on the basis of violations of international human rights law. These sanctions ensure that foreign persons who have violated these international human rights obligations are held responsible and that other such persons are so discouraged. The Act strengthens Australia’s commitment to International law.

'Why Australia needs a Magnitsky law' by , Geoffrey Robertson and Chris Rummery in (2018) 89(4) AQ - Australian Quarterly 19 commented

 the global Magnitsky movement that has its genesis at the turn of the century in Putin's Russia, at a time when Putin was cementing his power. The global Magnitsky movement - orchestrated by Bill Browder, American financier and author of the book Red Notice - is giving human rights the teeth to bite, rather than gnash, by preventing those people accused of human rights abuses and serious acts of corruption from enjoying the fruits of their ill-gotten gains. Its first targets have been Putin's cronies and, as an early measure of the movement's success, Putin's hatred of Browder was evident as he used the Helsinki Summit to call for the American's extradition. 

Magnitsky laws are national, not international, laws passed by sovereign parliaments to allow the government to apply targeted sanctions on any individual involved in a human rights violation, from senior officials to lowlevel officers, from judges to policemen, and even non-government actors such as CEOs and contractors. These sanctions take the form of asset freezes for funds held in banks and other financial institutions, as well as bans on visas for entering the country. Putin sought Trump's help to silence Browder because Magnitsky laws are being passed in Western countries around the world (although not yet in Australia) - and are beginning to engender fear amongst Russian profiteers from corruption and human rights abuses. Bill Browder is used to such attention: "in my mind, the fact that Putin keeps bringing up my name publicly shows how rattled he is by the Magnitsky Act and how powerful a tool it is. It is very unusual for Putin to acknowledge his enemies, but in my case he started the personal attacks shortly after the US Magnitsky Act was passed and has continued repeatedly after the passage of each new country's Magnitsky Act". 

This is a bad time for international criminal law: a pole-axed United Nations Security Council will not send for trial in the Hague any human rights violator (even Assad) who has "big 5" support, Trump in Helsinki did not even bother to request the arrest of the Polonium and Novichok poisoners or the soldiers who shot down MH17 (with the loss of 38 Australian lives) or to question the invasion of Ukraine. At a time when international criminal law is silent (except in respect of friendless states and their statesmen) Magnitskylaws show how national law can step up to the plate. The Australian Government boasts that it is a champion of human rights and anti-corruption in the Asia-Pacific, but if it is serious about its role as a human rights guardian in the region, then it is time to put a Magnitsky law on the Commonwealth statute book. ... 

Sergei Magnitsky was a lawyer in Moscow who blew the whistle on high-level Russian officials who had scammed companies owned by his client, Bill Browder, to the tune of USD $230 million. For this whistleblowing, Magnitsky was immediately arrested by the police he had complained about, and thrown into prison where tame judges ordered him to remain for a year without bail, despite serious illness. He was tortured and eventually died at the hands of middle-ranking officials of Putin's corrupt State apparatus, officials who send the spoils of their profiteering abroad to banks in Switzerland and Cyprus. Bill Browder (ironically, the grandson of Earl Browder, the famous leader of the Communist party in the US between the world wars) has since devoted his assets and his time to promoting local laws that punish human rights abusers, named in memory of Magnitsky, his lawyer killed for his loyalty to both his country and his client. His first success came in 2012, when Obama approved the Sergei Magnitsky Rule of Law Accountability Act, which froze the assets and prohibited visas to 18 Russian officials (including 2 judges) who had been involved in Magnitsky's inhumane treatment. In 2016 this law was widened by The Global Magnitsky Human Rights Accountability Act, which applies worldwide and not just to Russia, as well as to those who have engaged in serious corrupt practices. Its asset freezes and visa bans have continued under the Trump administration, sanctioning 58 people last year. As Browder says, "the Global Magnitsky Act appears to be a very powerful tool because dictators and their governments have traditionally never faced any consequences for their bad deeds, but all of a sudden find themselves financially isolated and publicly shamed" 

The virtue of Magnitsky laws is that they are exercises of State sovereignty, and do not rely on international law, treaties or arrangements. In 2017 Canada passed a more advanced version (The Justice for Victims of Corrupt Foreign Officials Act) that additionally placed reporting obligations on banks and other financial institutions, and prohibited all dealings by Canadian companies with listed individuals, on pain of prosecution. European countries are following the US and Canadian lead. The UK - after the Salisbury poisoning - amended its Sanctions Bill to enable the recovery of assets held in Britain by foreign human rights abusers.

The authors ask why are Magnitsky laws likely to be effective?

 Simply, because the foreign abusers they target do not, for the most part, want to keep their profits at home. They want to stash their cash in safe Western banks, use the money to holiday and play the casinos in the West, and to send their children to private schools and universities and their parents to the better-equipped hospitals in Europe and the USA. As Boris Nemtsov, Putin's courageous political opponent pointed out before his assassination in 2015, the best way for the UK to reduce Putin's support from oligarch friends is to stop them enrolling their children at Eton. 

Magnitsky laws do not at this stage go that far, but campaigners believe they should. Of course, normally we try not to visit the sins of the fathers upon their children, but in the case of corrupt and brutal officials, who have committed criminal acts in order to benefit their families, barring their children and their parents as well from entering our countries seems fair enough. 

A Magnitsky law cannot affect heads of state or diplomats who enjoy immunity, but it may deter the 'train drivers to Auschwitz' who are tempted to use their profits from corruption and human rights abuses to pay for access to Western hospitals and schools that are better than in their home counties, where these amenities have been downgraded as a result of their own corruption. ...

When the first law was introduced by Obama in 2012, Putin's puerile response was to stop American families from adopting Russian orphans. Then, more logically, he introduced his own Magnitsky law, which targeted American officials involved in Guantanamo Bay, although they had no assets in Russian banks and Dick Cheney is unlikely to want to holiday in the Kremlin.

They go on to ask should Australia have a Magnitsky law, commenting

Our cultural and financial infrastructures should not be made available to those who abuse human rights, whether they are mass murderers of Tamils or Rohingya, or corrupt Malaysian politicians or Chinese officials involved in oppressing democracy advocates, human rights lawyers and Falun Gong members. ... Australia should be part of a global movement insisting that foreign crooks stay in the country their corruption has emaciated. Some of our near neighbours suffer from top-level corruption (see, until recently, the Malaysian Prime Minister). 

Australia, like any other sovereign nation, has power to sanction foreign miscreants. The Charter of the United Nations Act 1945 (Cth), a Doc Evatt initiative back in 1945, gives force to any sanction imposed by the UN Security Council, and is applied automatically to those it designates - usually for supplying or financing arms to pariah regimes. But it only applies to the limited number of persons listed by the U.N. 

A wider sanctions regime is provided by the Autonomous Sanctions Act of 2011 (Cth) (the ASA), which allows the Minister for Foreign Affairs to impose sanctions (including targeted financial sanctions) on foreign individuals 'in situations of international concern.' It does not expressly permit sanctions to be imposed for cases of serious corruption, like the Global Magnitsky Act in the US. It does allow travel bans and money freezes in respect of situations of international concern, which can include the "grave repression of human rights." However, in order to sanction an individual, the Minister first needs to amend the ASA regulations by way of a legislative Instrument, Identifying the target country and the reasons for its national's designation, which might include human rights violations but not corruption. The Minister must then pass another legislature instrument if they decides to designate the particular individual under the ASA regulations. This procedure is both clumsy and repetitive. 

Australia's record in using these sanctions is pathetic under Ministers from both parties. For example, Julie Bishop only named two countries whose nationals she was prepared to sanction for human rights abuses - Syria and Zimbabwe, and Australia has only imposed sanctions on seventeen individuals, all of them Syrian commanders or intelligence officers in the Assad regime. So at present the ASA cannot be used to target individuals involved in the shooting down of MH17 or in human rights abuses occurring in the AsiaPacific, such as the extra-judicial killings in the Philippines or the high-level corruption in Malaysia. In other words the ASA is only being pointed towards easy targets with no likely connection to Australia. 

It is not genuinely being used as a tool to combat human rights abuse. The ASA is not fit for purpose, if its purpose is to deter corruption (which it does not expressly tackle) or deter human rights abusers, for which it is rarely used. Ironically, it is a stark example of legislation which itself abuses human rights, because it gives the Minister absolute discretion to designate people without proof that they are involved in repression and gives them no chance of contesting the merits of that designation through any transparent process. The Commonwealth Parliament's Joint Committee on Human Rights has consistently criticised the Act since its inception in 2011, drawing attention to the Minister's overweening discretionary powers and to the unfairness of the process and the lack of appeal rights. It has recommended that the Act be amended to incorporate some of the protections available in the UK Sanctions Act. ... the ASA cannot be regarded as proportionate, because it lacks effective safeguards to ensure that designation of particular individuals is not applied arbitrarily or in error, as well as the fact there is no right of a review of the designation on its merits. 

Unlike the united Kingdom, which reviewed all the designations made under its Terrorism Sanctions Act and strengthened its safeguards, the Commonwealth government has never conducted a review into the ASA to ascertain whether its designations are proportionate and therefore in line with international human rights standards. It is also difficult to ascertain what information the Minister bases their decisions on when making designations under the ASA. No publicly available document exists in relation to what criteria and evidence are used when making a designation (other than what is listed in the regulations), nor is such information forthcoming. The Department of Foreign Affairs and Trade has said that it collates arange of evidence and information to inform the Minister's decision-making under the ASA, however it refuses to release such information despite multiple requests by the Committee, as well as requests under the Commonwealth FOI laws.

In considering an Australian Magnitsky Act the authors comment

The ASA represents what Gillian Triggs, former President of the Australian Human Rights Commission, has been warning about for some time, namely, a creeping expansion of non-compellable and non-reviewable discretions of Commonwealth Ministers. Then Foreign Minister, Julie Bishop stated that she had no intention of introducing legislation into the Australian Parliament that would mirror or resemble the United States' Global Magnitsky Act. 

Certainly, any Australian Magnitsky law should depart from some other Magnitsky legislation, such as in the US, which allows the US President to sanction individuals on merely the basis of 'credible evidence' from the US State Department and the international NGOs. It is wrong that a decision to designate an individual should be at the discretion of the Executive, whether a US President or Australian Minister. An Australian Magnitsky law should be one which respects the doctrine of the separation of powers between government, parliament and the judiciary, as well as common law rights and the international human rights regime which Australia has signed up to. Orders for sanctions on individuals should be made either by an independent quasi-judicial body, or by an independent Federal judge, after considering applications from the relevant Minister, government departments and intelligence agencies, as well as information from NGOs and affected parties and (if secrecy is not initially required) from targets themselves. 

There is no doubt that in order to achieve the objective of preventing human rights abusers from enjoying their ill-gotten gains, sanctions regimes need to be flexible and applied in an effective and timely manner. The independent tribunal or Federal judge empowered to order the sanctions would hear and determine matters on their merits in a transparent process, with the target entitled to take part in proceedings should they wish to do so (at least via Skype or a local lawyer) and to put their case and their evidence before either a tribunal or a Federal judge. This model would be able to sanction individuals designated by Magnitsky laws or tribunals in other jurisdictions such as Europe, the UK, Canada and the US, and the hope is that, in time, a master list of human rights abusers would be built up, abusers effectively banished from exploiting opportunities in the democracies of the world. This will, of course, take time, and the Australian model would not automatically sanction a target of the US Global Magnitsky Act without affording a fair and transparent process. Those sanctioned under the Australian model - a decision which could severely affect their money and their movements - should have a right to appeal, and to apply subsequently for removal from the list. ... 

It is important that an Australian Magnitsky law be used as a genuine force for change in the Asia-Pacific region, rather than simply reflecting the diplomatic policies of the government of the day. It could pressure governments where gross violations of human rights and corruption have occurred, and which are still said to be occurring. It could target the middle-men who permit the extra-judicial killings on behalf of Duterte, or the naval and army commanders responsible for shelling Tamils seeking shelter in the No Fire Zone at the end of the Sri Lankan Civil War in 2009. A Magnitsky law used effectively could ensure that none of the USD 1 billion allegedly funnelled by disgraced Malaysian PM Najib Razak and his cronies from a state-owned investment firm ends up in Australian financial institutions. 

Media and Targeted Killing

'In the Frame: UK media coverage of drone targeted killing' by Joanna Frew for Drone Wars UK comments

In September 2015, for the first time, the British government used one of its drones to hunt and pre-emptively kill a British national in a country with which it was not at war. In the Frame details the findings of a comprehensive examination of mainstream UK media coverage of drone targeted killing between August 2015 and July 2018. Articles about the killing of eight British ISIS members as well as about the policy itself, were used to collate data on the frequency of legal discussion on UK targeted killing, reporting on the use of a ‘kill list’ by the RAF, and commentary on the threshold for the use of force. 

Data was collated from four mainstream UK news outlets – the BBC, Daily Mail, Guardian and Times. The killing of Reyaad Khan, in Sept 2015, received almost 39% of the total coverage and many of the policy discussions stemmed from his killing. This is not surprising given the questionable legal justifications for his death, which generated a lot of attention. News stories on policy, although comprising only 21% of the total articles, tended to include a high content of legal commentary throughout the three year period, while legal commentary on individual strikes (the remaining 40% of articles) receded. Attention also waned regarding the possible ‘kill list’. Commentary on the threshold for the use of force was almost entirely absent from the data set. 

Based on these findings, 'In the Frame' concludes that:

• An easy narrative for targeted killing has been constructed: Government communication of the early killings of Khan and Emwazi developed a simple narrative or ‘frame’ to support the targeted killing of individuals. 

• A focus on individuals detracted from policy: The focus on the notoriety of individual British ISIS members detracted from and hampered public policy debate. 

• ‘Quasi-secrecy’ has been useful: The ‘quasi-secrecy’ with which media speculation of a ‘kill list’ was met saw apparent confirmation two years later generate little press interest, suggesting the creeping normalisation of such a practice. 

• We are sleep-walking in to a new era: Without serious engagement in the ethical dimension of drone warfare, we risk sleep-walking in to a new era in which international human rights norms risk being eroded. The report recommends that government publish its policy on drone targeted killing and answer questions on the existence of a kill list as a matter of urgency, allowing parliamentary scrutiny and public debate to take place. It should also commit to end targeted killing outside areas of conflict and engage in multilateral efforts to adopt a drone code of conduct.

The report notes

Drone Wars UK is a small British NGO established in 2010 to undertake research and advocacy around the use of armed drones. We believe that the growing use of remotely-controlled, armed unmanned systems is encouraging and enabling a lowering of the threshold for the use of lethal force as well as eroding well established human rights norms. While some argue that the technology itself is neutral, we believe that drones are a danger to global peace and security. We have seen over the past decade that once these systems are in the armoury, the temptation to use them becomes great, even beyond the constraints of international law. As more countries develop or acquire this technology, the danger to global peace and security grows. ...   

In the Frame is being published at a time when the UK appears to be winding up its military action against ISIS in Iraq and Syria and it is imperative that the ethics and legality of drone targeted killing, and in particular, the UK’s policy on such operations, are given much more serious attention before the UK’s armed drones are deployed elsewhere. Although detailed legal arguments about pre-emptive targeted killings within and without an international armed conflict are complex and open to interpretation, currently the broad-brush message given to the public is that such targeted killings are not only necessary but perfectly acceptable. This bodes ill for the future. 

Observation

‘An Implied Freedom of Political Observation in the Australian Constitution’ by Daniel Reynolds in (2018) 42(1) Melbourne University Law Review 199 comments

The implied freedom of political communication exists to ensure that Australians are able to exercise a free and informed choice as electors. Yet communication is a second-hand means of acquiring information, and it is not the only means. Nor is there any reason arising from the text or structure of the Australian Constitution why communication should receive special status. This paper makes the case for a related implication, an ‘implied freedom of political observation’, designed to ensure that electors can also acquire politically relevant information first-hand. It is argued that such an implication arises by force of the same logic that gave rise to the implied freedom of political communication, yet — unlike the ill-fated ‘implied freedom of political association’ — occupies a unique territory that goes beyond that already recognised freedom. 

 Reynolds argues

In 1992, the High Court of Australia held that there exists an implied freedom of political communication (‘the IFPC’) which arises as a necessary incident of the system of representative democracy for which the Australian Constitution (the ‘Constitution’) provides. This was a landmark event that prompted much academic speculation about whether representative democracy might require any other implications, such as freedom of assembly, freedom of movement, freedom of association and the right to vote. In the decades since, the Court has recognised some further implications from representative democracy, and rejected others. 

This paper makes the case for a new implication yet to be considered by any court: an implied freedom of political observation. ‘Political observation’ in this context means any use of the senses (sight, hearing, and so on) to perceive something, by means of which the observer may form a view on government or political matters. Like the IFPC, the rationale for the freedom would be to ‘[enable] the people to exercise a free and informed choice as electors’. 

The need for the new implication arises because the IFPC only protects the formation of views acquired second-hand (whether by communication between electors, between representatives and electors, or via the media). That is, the IFPC is premised upon the involvement of at least two people: the person imparting information, and the person receiving it. What the IFPC does not protect is the formation of views acquired first-hand, that is, through the individual observations of one person acting autonomously, without reference to the views of others. 

This halfway protection would be justifiable if the Constitution impliedly protected communication itself. But it does not: communication is protected because it is a means by which electors may inform themselves about government and political matters and thereby exercise a free and informed choice at elections. The text and structure of the Constitution supply no reason to conclude that communicative means of acquiring that information should be protected, but non-communicative means should not. One possible explanation for the recognition of the former alone is the influence on Australian courts of American jurisprudence concerning the First Amendment, which expressly protects the freedom of speech. Yet while that jurisprudence is illuminating, its utility in the present constitutional context is attenuated by the circumstance that the relevant protection in Australia arises by way of implication rather than by express guarantee. Accepting that there is no reason why first-hand information should not be protected in the same way as second-hand information, two questions follow: what sort of conduct would an implied freedom of political observation cover, and what sort of laws would burden it? 

As to the first question, experience teaches us that many people make up their minds about political matters, at least in part, not by discussing politics with friends or reading the news, but by going out into the world and arriving at opinions based on what they observe. As will be argued, that is an unexceptional and entirely legitimate way of forming political views. For example, controversies occasionally arise as to whether a particular building should be ‘heritage listed’ and preserved, or sold to developers and demolished. That is clearly a political issue. It is also clearly an issue on which views can be formed by going to see the building. It is a small further step to appreciate that a law that prevented people from going to see the building would, to that extent, impede their ability to form those views. As is more fully developed below, there are many other examples where political views will readily be formed by electors going to a particular place and observing what is there. Critically, the IFPC can provide no protection from government action that would inhibit the ability of electors to form views in this way, as no communication is involved. 

The example just given reveals that the proposed implication has a corollary: freedom of movement, at least of a particular kind. What is necessary is the freedom for electors physically to go to public places, or other places of political significance, in order to observe whatever may be there. The implication proposed in this paper would justify a freedom of movement only in this limited sense, rather than at large. Just as the IFPC does not protect non-political communication, so too an implied freedom of political observation would not protect movement that does not conduce to the obtaining of information that could affect a person’s choice in federal elections. 

As to the second question, a law will therefore burden the implied freedom of political observation if it impedes access to a place where information that could affect a person’s choice in federal elections may be acquired. Possible examples of such laws are given in Part IV, but one needs to look only to modern history, where people of particular races or religions have been segregated and excluded from public places (as in South Africa during apartheid, and in Jewish ghettos in Nazi Germany) to see that the question isnot purely theoretical. 

The approach of this paper is as follows. Part II considers the High Court’s jurisprudence on the IFPC to date and draws on it to identify a relevant consideration for the recognition of further implied freedoms arising from the constitutionally prescribed system of representative democracy. Part III analyses the line of authority culminating in the rejection of a free-standing ‘implied freedom of political association’, which is now understood to exist only as a corollary to the IFPC. The purpose of Part III is to explain the rationale for that line of authority and to extract from it a second criterion for the recognition of new implications from the system of representative democracy and responsible government for which the Constitution provides. Part IV contains the argument proper for the implied freedom of political observation, and explains how it might operate in practice. Part V deals with possible counterarguments. Part VI provides a conclusion.

Hatespeech and digital platforms

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.