February 24, 2020

In 2014 the applicants, two young men, publicly posted a photograph of themselves kissing on Facebook. It was intended to accompany the announcement of their relationship and to trigger a debate on the rights of LGBT people in Lithuanian society. The online post went viral and received hundreds of homophobic comments (containing, for example, calls to “castrate”, “kill” and “burn” the applicants).

At the applicants’ request, an organisation upholding the rights of LGBT people (of which they were members) lodged a complaint with the prosecutor’s office against thirty-one of these comments, asking the prosecution service to open an investigation for incitement to homophobic hatred and violence under Lithuanian law. The prosecutor’s office refused to open a preliminary investigation. The Lithuanian courts then dismissed the organisation’s appeal on the grounds that: (i) posting this “eccentric” photograph publicly had amounted to provocation on the applicants’ part, contrary to the respect due to the opinions of others in view of the “traditional family values” prevailing in Lithuania; and (ii) the impugned comments expressed their authors’ unfavourable opinion in terms that were admittedly immoral, obscene or badly chosen, but which did not, on this basis alone, contain the necessary actus reus and mens rea elements of the offence in respect of each author.

The ECtHR concluded that the applicants had indeed suffered discrimination on the grounds of their sexual orientation without good cause, given that:

1. the hateful comments by private individuals directed against the applicants and the homosexual community in general were instigated by a bigoted attitude towards that community; and
2. the same discriminatory state of mind was at the core of the authorities’ failure to discharge their obligation to investigate in an effective manner.

The ECtHR found that it was clear that the comments on Facebook had affected the applicants’ psychological well-being and dignity. Article 14 of the ECHR (which covers discrimination) was therefore applicable under the “private life” aspect of Article 8, having regard also to the level of seriousness of the attacks.

While recognising that the atmosphere on this issue was tense in Lithuania, the ECtHR found that the applicants’ deliberate intention to incite discussion about homosexuality could not be viewed as a threat to cause public unrest. On the contrary, it was through a fair and public debate between persons with different views that social cohesion was promoted.

The Lithuania authorities had emphasised the “eccentric” nature of the applicants’ conduct and the courts had said that it would have been preferable for the applicants to share their picture only with “like-minded people” instead of publicly. In the light of such specific references to the applicants’ sexual orientation, it was clear that one of the reasons for the refusal to open a preliminary investigation lay in disapproval of the fact that they were open about their homosexuality.

As for the Lithuanian courts’ references to the majority of Lithuanian society appreciating “family values” in the traditional sense, and to the preservation of those values as the foundation of society, the ECtHR said that there was no reason to consider those factors as incompatible with social acceptance of homosexuality, as evidenced by the growing general tendency to view relationships between same-sex couples as falling within the concept of family life (the Lithuanian Constitutional Court had itself ruled to this effect since 2011).

There was therefore a prima facie case that the applicants’ homosexual orientation had played a role in the way they were treated by the authorities. In consequence, it was for the authorities to demonstrate that the way in which they had assessed the relevant facts had been acceptable. The ECtHR found that they had failed to do this.

The ECtHR held that the concept of inciting hatred did not necessarily entail a call for an act of violence or other criminal act: insult, holding up to ridicule, or slander could be sufficient to tilt the balance against protecting freedom of expression that was exercised in an irresponsible manner. In addition, the authorities had failed to respond convincingly to the argument that if the impugned comments were to be considered as not being covered by the criminal law in question, then it was hard to conceive what statements could be.

Further, the ECtHR said, the hateful nature of a comment (let alone a call to “kill” the applicants) was sufficient to be taken seriously, even if its author had posted only one such remark. The case concerned undisguised calls for an attack on the applicants’ physical and mental integrity. Therefore, protection by the criminal law was required. This had been denied to the applicants as a result of the authorities’ discriminatory attitude, which was at the core of their failure to discharge their obligation to investigate in an effective manner whether the impugned comments constituted incitement to hatred and violence.

As to whether other remedies were available to the applicants (before the civil courts or administrative authorities), the ECtHR said that it would have been manifestly unreasonable to require the applicants to exhaust them, and would have had the effect of downplaying the seriousness of the impugned comments. There had therefore been a violation of Article 14 by the Lithuanian authorities.

The ECtHR also found that the authorities had violated Article 13 (effective remedy) as the way they had acted could not be considered as providing for an effective domestic remedy in relation to complaints concerning acts of homophobic discrimination. The ECtHR found that the Lithuanian authorities were doing almost nothing in the face of a growing intolerance towards sexual minorities; in reality, the bodies responsible for applying the law did not recognise prejudice as a motivation in such offences; they had not adopted an approach which took account of the seriousness of the situation; and, in particular, there was no comprehensive approach to tackle the issue of racist and homophobic hate speech. (Beizaras and Levickas v Lithuania (Application no 41288/15) (14 January 2020) — to read the judgment in full, click here).