ECtHR: Refusal by Lithuania to investigate hate-speech comments about same-sex kiss on Facebook was discriminatory

ECtHR: Refusal by Lithuania to investigate hate-speech comments about same-sex kiss on Facebook was discriminatory


Beizaras and Levickas v. Lithuania (press release)

http://hudoc.echr.coe.int/eng?i=001-200344 (full text of judgment)

Today, the ECtHR found sexual orientation discrimination (violating Article 14 taken with Article 8 EConHR) in Beizaras & Levickas v. Lithuania. The case concerns failure to investigate anti-LGB hate speech (including threats of violence) posted on Facebook, after a male-male couple posted to Facebook a photo of themselves kissing.

Robert Wintemute, Professor of Human Rights Law at King’s College London (UK) and co-representative of the applicants, said:  “I am very pleased that the European Court of Human Rights has sent such a strong message to national authorities across Europe that they must take anti-LGBTI hate speech seriously, and investigate complaints, even about a single hateful comment on Facebook, let alone one that LGBTI persons should be killed.  The Court rejected the Government of Lithuania’s claim that there had been no discrimination in the decision not to investigate.  On the contrary, it was the Lithuanian courts’  ‘disapproval of the applicants’ demonstrating their sexual orientation’, by posting on Facebook a photo of themselves kissing, that proved the discrimination.  I would read the judgment as implicitly upholding the right of a same-sex couple to express affection in public, whether in a park or cafe or bus, or on the street or on Facebook, in the same way as a different-sex couple.”

Excerpts from the Judgment:

Exhaustion of remedies in Lithuania

81.  Against the above background, the Court is satisfied that given the circumstances of this case and bearing in mind the serious nature of the allegations, it should have been open to the LGL Association, whose members the applicants were …, and which is a non-governmental organisation set up for the purpose of assisting people who have suffered discrimination to realise their right to a defence, including in court, to act as a representative of the applicants’ “interests” within the domestic criminal proceedings  …

Merits of the applicants’ complaints

118.  In the Government’s submission, the case disclosed no element of discrimination …, for the domestic authorities’ decision not to start a criminal investigation regarding the comments at issue had nothing to do with the applicants’ sexual orientation … Instead, their argument essentially was twofold: firstly, the applicants had themselves wished to provoke such a reaction, partly by using a religious symbol on the first applicant’s clothing, and, secondly, the comments at issue had not reached a level at which they could be considered criminal. …

119.  The Court observes that although in their application to the Court the applicants stated that the idea behind their posting of the photograph in question had been to announce the beginning of their relationship, in their subsequent observations they admitted that the photograph had been meant to incite discussion about gay people’s rights in Lithuania … That being so, and although the Government saw the latter fact as provocative, the Court does not view either of those reasons as illegitimate or meriting their suppression. On the contrary, it has already held that there is no ambiguity about the member States’ recognition of the right of individuals to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their rights and freedoms … The Court also points to LGBT-friendly Vilnius’s follow-up posts on its own Facebook page in which it was stated that the applicants’ photograph had been posted to serve the aim of helping other LGBT people in Lithuania, and potentially those who were “condemned by others” and perhaps “[standing] on the roof of some house, or on the edge of a window sill or balcony”, to move “to a safer spot”. The applicants also confirmed this intention when interviewed by the LGL Association … While accepting the Supreme Court’s finding that the atmosphere in respect of issues concerning homosexuality is tense in Lithuania .., the Court cannot view the above-mentioned intentions, as indicated by the applicants, as having threatened to cause public unrest … In fact, it is a fair and public debate about sexual minorities’ social status that benefits social cohesion by ensuring that representatives of all views are heard, including the individuals concerned …

120.  … it transpires that the criminal courts which examined the applicants’ case focused on what they saw as the applicants’ “eccentric behaviour”, the argument which the Court will address next.

121.  The Court thus recalls that the Klaipëda District Court considered that the picture of two men kissing did not contribute to social cohesion and the promotion of tolerance … That view was fully endorsed by the Klaipëda Regional Court, which also found that it would have been preferable if the applicants had only shared such pictures among “like-minded people”, since the Facebook social network allowed such a possibility … Given those express references to the applicants’ sexual orientation, it is clear that one of the grounds for refusing to open a pre-trial investigation was the courts’ disapproval of the applicants’ demonstrating their sexual orientation …

122.  … In the present case, although the Klaipëda District Court cited the alleged incompatibility between maintaining family values as the foundation of society and acknowledging the social acceptance of homosexuality, the Court sees no reason to consider those elements as incompatible, especially in view of the growing general tendency to view relationships between same-sex couples as falling within the concept of “family life” …

123.  … it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group’s rights would become merely theoretical rather than practical and effective, as required by the Convention …

124.  Taking into account all the evidence, the Court thus considers it established that the applicants have made a prima facie case that their homosexual orientation played a role in the way they were treated by the State authorities …

125.  On the facts of this case the Court firstly notes the prosecutor’s view that the authors of the comments, including those stating that “it’s not only the Jews that Hitler should have burned” and that “faggots … [should be thrown] into the gas chamber” or “into the bonfire” or have “a free honeymoon trip to the crematorium”, or have “their heads smash[ed]” or be “castrated” or be “[shot]” …, had acted “unethically” but that such “amoral behaviour” had not reached the threshold required by Article 170 §§ 2 and 3 of the Criminal Code …. The Klaipëda District Court came to the same conclusion, finding that those comments were mere “obscenities” and were simply words “not chosen properly” … However, … the Court is unable to subscribe to such conclusions of the Lithuanian authorities. ,,, Moreover, the Court cannot but observe that other comments, even without calling for violence, regarding the Jews … have been treated by the Lithuanian authorities as falling under Article 170 of the Criminal Code. It also considers that the Government have not provided weighty arguments to refute the applicants’ view that if comments such as those uttered in their case did not amount to inciting not only hatred but even violence on the basis of the applicants’ sexual orientation, then it is hard to conceive what statements would … Therefore, the Court, sharing the view of the Constitutional Court that the attitudes or stereotypes prevailing over a certain period of time among the majority of members of society may not serve as justifiable grounds for discriminating against persons solely on the basis of their sexual orientation, … considers that the assessment made in this case by the national authorities was not in conformity with the fundamental principle in a democratic State, governed by the rule of law …

127.  … Accordingly, the Court does not find it unreasonable to hold that even the posting of a single hateful comment, let alone that such persons should be “killed”, on the first applicant’s Facebook page was sufficient to be taken seriously. This is further supported by the fact that the photograph had “gone viral” online and received more than 800 comments … The report on Lithuania by the ECRI also indicates that the country “has a problem” and that most hate speech takes place on the Internet, and also on social networks … The Court therefore also rejects the Government’s argument that comments on Facebook are less dangerous than those on the Internet news portals … Neither can it see as pertinent the Government’s argument that the people who commented negatively on the Facebook page of the first applicant had not outnumbered the applicants and their supporters …

128.  … The Court observes that the instant case concerns undisguised calls on attack on the applicants’ physical and mental integrity …, which require protection by the criminal law … Article 170 of the Criminal Code indeed provides for such a protection … However, due to the Lithuanian authorities’ discriminatory attitude, the provisions of this Article were not employed in the applicants’ case, and the requisite protection was not granted to them. The Court considers that, in the circumstances of this case, it would have been manifestly unreasonable for the victims as well as downplaying the seriousness of the impugned comments to require the applicants to exhaust any other remedies. Accordingly, the Government’s objection to the effect that the applicants could have had recourse to other – civil law – remedies …, must be dismissed.

(iii)  Conclusion

129.  Having regard to all the material at hand, the Court thus finds it established, firstly, that the hateful comments including undisguised calls for violence by private individuals directed against the applicants and the homosexual community in general were instigated by a bigoted attitude towards that community and, secondly, that the very same discriminatory state of mind was at the core of the failure on the part of the relevant public authorities to discharge their positive obligation to investigate in an effective manner whether those comments regarding the applicants’ sexual orientation constituted incitement to hatred and violence, which confirmed that by downgrading the danger of such comments the authorities at least tolerated such comments … In the light of those findings the Court also considers it established that the applicants suffered discrimination on the grounds of their sexual orientation. It further considers that the Government did not provide any justification showing that the impugned distinction was compatible with the standards of the Convention …

130.  Accordingly, the Court holds that in the present case there has been a violation of Article 14, taken in conjunction with Article 8 of the Convention.

155.  The Court cannot but find that the statistics provided both by the Government and the applicants, as well as those by the third-party interveners as well as by international bodies, show otherwise [no willingness to prosecute]. … the Court notes information regarding the Lithuanian law-enforcement institutions’ failure to acknowledge bias-motivation of such crimes and to take such an approach which would be adequate to the seriousness of the situation … In this connection the Court reminds that it has already held in Identoba and Others …  that without such a strict approach on the part of the law-enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence or even connivance in hate crimes. Regarding Lithuania, the most recent materials by the ECRI also show lack of a comprehensive strategic approach to tackle the issue of racist and homophobic hate speech by the authorities …

1 thought on “ECtHR: Refusal by Lithuania to investigate hate-speech comments about same-sex kiss on Facebook was discriminatory

  1. Pingback: ECtHR: Refusal by Lithuania to investigate hate-speech comments about same-sex kiss on Facebook was discriminatory – International Law in Switzerland

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