Ineffective criminal protection of homosexuals against hate speech on facebook violates their right to privacy

JUDGMENT

Beizaras and Levickas v. Lithuania 14.01.2020 (no. 41288/15)

see here

SUMMARY

The case raised questions about the State’s responsibility to protect individuals from homophobic
hate speech.

The applicants are two young men who are in a relationship. One of the applicants posted a
photograph of them kissing on his Facebook page, which led to hundreds of online hate comments.
Some were about LGBT people in general, while others personally threatened the applicants.
Both the prosecuting authorities and the courts refused to launch a pre-trial investigation for
incitement to hatred and violence against homosexuals, finding that the couple’s behaviour had
been provocative and that the comments, although “unethical”, did not merit prosecution.

The Court found in particular 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 had 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.

PROVISIONS

Article 14

Article 13

Article 8

PRINCIPAL FACTS

The applicants, Pijus Beizaras and Mangirdas Levickas, are Lithuanian nationals who were born in
1996 and 1995, respectively. They live in Kaunas and Panevėžys.

The applicants are in a same-sex relationship. In December 2014 Mr Beizaras posted a photograph of
them kissing on his Facebook page.

The photograph went “viral”, receiving hundreds of comments in Lithuania. The comments mostly
included calls for the applicants to be “castrated”, “killed”, “exterminated” and “burned” because of
their homosexuality.

The applicants turned to a non-governmental organisation, the National Lesbian, Gay, Bisexual and
Transgender Rights Association, of which they are both members, asking it to complain to the
prosecuting authorities and to request that they initiate criminal proceedings for incitement to
hatred and violence against homosexuals.

The prosecutor decided, however, not to initiate a pre-trial investigation regarding the complaint. He
considered that the authors of the comments had merely been “expressing their opinion” and that, although they had reacted “unethically”, their behaviour did not warrant prosecution. The
prosecutor further pointed out that his conclusion was in line with the Supreme Court’s practice in such cases.

The 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.

THE DECISION OF THE COURT…

Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and family
life)

The Court found it clear that the comments on Mr Beizaras’s Facebook page had 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 in their submissions that the comments had been “offensive
and vulgar”.

However, it denied that the applicants had been discriminated against, arguing that the domestic
authorities’ decisions not to start a criminal investigation had had nothing to do with their sexual orientation. It argued in particular that the decisions had been based: firstly on the applicants’ behaviour, which had been provocative, among other things because of a cross woven into the
second applicant’s jumper, which could have sparked conflict with people of a different cultural and
religious background; and secondly, on the fact that the comments in question had not reached a
level so as to be considered criminal.

The Court, on the other hand, considered that the applicants’ homosexual orientation had played a
role in the way they had been treated by the authorities. Focussing on what they considered to be
the applicants’ “eccentric behaviour”, the criminal courts had expressly referred to their sexual
orientation in their decisions. They had even 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 the authorities’ 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 Court thus found that the hate comments had been inspired by a bigoted attitude towards the
homosexual community in general and that the same discriminatory state of mind had been at the
core of the authorities’ failure to comply with their duty to investigate in an effective manner
whether those comments had constituted incitement to hatred and violence. By downgrading the
danger of such comments, the authorities had at the very least tolerated them.

The Court therefore found that the applicants had suffered discrimination on the grounds of their
sexual orientation. It further considered that the Government 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.

Article 13 (right to an effective remedy)

The Court found that the Lithuanian Supreme Court’s case law as applied by the prosecutor, whose
decision had then been 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. Furthermore, although that 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”.

Moreover, reports by international bodies, including the Council of Europe’s European Commission
against Racism and Intolerance (ECRI), confirmed 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 Court therefore found that there had also been a violation of Article 13 of the Convention
because the applicants had been denied an effective domestic remedy for their complaints about a
breach of their private life owing to discrimination on account of their sexual orientation.

Just satisfaction (Article 41)

The Court held that Lithuania was to pay each applicant 5,000 euros (EUR) in respect of
non-pecuniary damage and EUR 5,000 in respect of costs and expenses.


ECHRCaseLaw

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