The European Court of Human Rights has held that Lithuania violated the European Convention on Human Rights when they refused to investigate online homophobic hate speech.
The applicants in this case, Mr Pijus Beizaras and Mr Mangirdas Levickas, posted a picture on Facebook showing them kissing. This photo went viral across Lithuania and led to several threatening comments to be directed at the applicants, including calls for them to be “castrated”, “killed” and “exterminated” because of their sexuality.
The applicants reported this abuse to the Lithuanian authorities but the prosecutors decided not to initiate a pre-trial investigation for incitement to hatred and violence. They claimed that the authors of these comments were merely expressing their opinion and, though unethical, did not warrant criminal prosecution. The prosecutors highlighted that this view was in line with the practice of the Supreme Court in similar cases. In a final ruling in February 2015, the domestic courts confirmed the prosecutor’s decision. In its view, the applicants’ behaviour had been deliberately provocative as they could have foreseen that a photo of two men kissing would have caused controversy.
The applicants then took their complaint to the European Court of Human Rights, alleging that the Lithuanian authorities had violated Article 14 in conjunction with Article 8. They also argued that there had been a violation of their Article 13 right to an effective remedy because the authorities’ refusal to investigate left them no possibility of legal redress.
The Court found that Articles 14 and 8 were engaged in this case as the comments had affected their psychological wellbeing and dignity. The Government denied that they had acted in a discriminatory manner. They argued that the decision not to prosecute was not based on their sexuality but rather their provocative behaviour and the fact that the actions of the commenters had not reached a level considered to be criminal.
The Court found that the applicants’ sexual orientation had played a role in the way they were treated by the authorities. They had expressed disapproval at the applicants’ behaviour and had cited the “incompatibility of traditional family values with social acceptance of homosexuality”. In the Court’s view, due to the discriminatory attitude of the authorities, the applicants had not been adequately protected by them and this discriminatory attitude was the reason they did not comply with their duty to investigate.
The Court concluded that the applicants had suffered discrimination on the grounds of sexual orientation and the government had not provided justification showing that this difference in treatment was not incompatible with the Convention.
The Court also found that Lithuania had violated the applicants’ Article 13 right to an effective remedy. The case law of the Supreme Court, as applied by the prosecutors highlighted the “eccentric behaviour” of sexual minorities. The Court also cited evidence that all 30 pre-trial investigations for similar incidents had been discontinued. Even the domestic court that handed down the final ruling in this case pointed out that opening criminal proceedings would have been a “waste of time.”
Click here for the decision in Beizaras v Lithuania.