Gender Expression, Hate Speech
The Commissioner for Protection of Equality v. AA
Closed Mixed Outcome
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The European Court of Human Rights found a violation of Article 14 read in conjunction with Article 8 of the European Convention on Human Rights (ECHR) and Article 13 owing to the failure of Lithuanian authorities to effectively respond to applicants’ complaint against discrimination. The applicants, nationals of Lithuania, are in a same-sex relationship. One of the applicants posted a photograph of them kissing on his social network page. Owing to the hateful comments posted on the said applicant’s post on his facebook page, inciting hatred and violence based on sexual orientation, the applicants approached the domestic authorities. However, the Lithuanian authorities refused to initiate the pre-trial investigations. The applicants complained that they were being treated differently by the domestic authorities because of their sexual orientation. The Court built its findings on the difference in treatment by public authorities exclusively on the basis of sexual orientation. The Court noted that the applicants’ expression of affection should have been protected by the Lithuanian authorities to secure the effective enjoyment of the rights and freedoms guaranteed under the ECHR. The Court observed that such treatment by domestic authorities lacks reasonable justification in circumstances where the authorities combat hate speech by applying criminal law. The Court found that the comments on applicant’s Facebook post affected the applicants’ dignity that falls under the realm of private life. Emphasizing on the importance of tolerance, democracy and pluralism, the Court held that the State of Lithuania violated Article 14 owing to the non fulfillment of its positive obligation to respect the right to respect for private life under Article 8.
The applicants, Pijus Beizaras and Mangirdas Levickas are the citizens of Lithuania and are in a same-sex relationship. On December 8 2014, the first applicant (Pijus Beizaras) made a public post with a photograph on his Facebook page depicting a same-sex kiss with the second applicant to announce the beginning of their relationship. The post went viral and received around 2400 likes and 800 comments. Around 31 of the posted comments directly threatened the applicants or were aimed at inciting hatred and violence against the people of the LGBT community. The posted comments called the applicants or people from the LGBT community “scum”, “faggots” advocating to “kill” or “burn” them. It included comments such as “Burn the faggots”, “into the gas chamber with a pair of them”, “you should be exterminated”, “cure yourselves”, “I would shoot every single one of them”, “kill yourselves” etc.
LGL Association is a non-governmental organisation set up to assist people who are discriminated against and to defend the public interest. The applicants were members of the LGL association. Due to fear of retaliation and a dearth of additional procedural guarantees for alleged victims of homophobic hate crimes, applicants requested LGL to initiate the proceedings on their behalf.
As per Article 21 of the Constitution, human dignity shall be protected by law and all persons shall be treated equally before law as per Article 29. Article 22 and 25 provide for right to private life and freedom of expression respectively.
On December 12 2014, the LGL association filed complaint with the Prosecutor General’s Office to initiate criminal proceedings against the comments on the applicant’s post inciting discrimination, hatred and violence against the people of homosexual orientation. The complaint was lodged under Article 170 §§ 2and 3 of the Criminal Code and Article 19 § 1(3) of the Law on Provision of Information to the Public. Article 170 § 2 of the Criminal Code criminalises the act of ridiculing or inciting discrimination against a group of people or a person belonging thereto on the grounds of sex or sexual orientation. Article 170 § 3 provides for punishment for a person publicly inciting violence on the grounds of sex or sexual orientation.
The Supreme Court of Lithuania has noted in its decisions that for criminal liability under Article 170 § 2 to arise, it is sufficient for the person concerned to publicly make “negative, degrading or demeaning” statements towards a group of persons as defined under Article 170 [para. 40]. The Supreme Court has also observed that it is not necessary that any consequences arise because of such statements. [para. 40] The Supreme Court has also pointed out that the topic of “sexual minorities rights” in Lithuania was pertinent and created a certain social tension that was linked to a conservative (or negative) attitude on the part of part of society towards sexual minorities [para. 44].
On December 30 2014, the Prosecutor refused to initiate the pre-trial investigation on the ground that comments did not constitute a “systematic action” but was an isolated act as comments were made individually and not collectively. According to the Prosecutor, the comments were made merely to express opinion and not to incite hatred. Thus, the Prosecutor concluded that the comments lacked the elements of crime under Article 170 § 2 and 3 of the Criminal Code.
The LGL Association appealed against the Prosecutor’s decision before the Klaipėda City District Court. The LGL Association relied on the Lithuanian court decision where it was held that a single comment is sufficient to find the author guilty under Article 170 of the Criminal Code. [para. 19] The LGL association further relied upon the ECtHR’s judgment in Vejdeland v. Sweden ECHR  1813/07 where the prosecution of applicants was held to be lawful even if their statements didn’t incite violence. The District Court, however, dismissed the appeal on the ground that the commenters had merely chosen improper words to express their disapproval but did not incur any criminal liability under Article 170. The Court further justified the Prosecutor’s reasoning on the ground that the applicants had made a public post, thus, such comments could be foreseen. Citing Article 38 of the Constitution, the Court stated that family is the basis of society and the majority of Lithuanian society appreciated traditional family values. As per Article 3.7 of the Civil Code, marriage is an agreement between man and woman to create a legal family relation. However, the Constitutional Court of Lithuania has held that marriage and family are neutral in terms of gender [para. 36].
LGL Association appealed before the Klaipėda Regional Court, citing milder public events concerning ethnic discrimination that were held to have constituted a crime by the Lithuanian Courts. Further, it contended that protecting comments under freedom of speech would be unreasonable. On these lines, it relied on Balsyte- Lideikiene v. Lithuania ECHR  72596/01, where the ECtHR held that freedom of speech concerning offensive speech could be restricted if such restriction was necessary. The appeal was dismissed on the ground that it was “eccentric behavior” on the part of applicant for not restricting the post to his friends or to like-minded people.
The main issue before the Court was whether the authorities’ refusal to launch a pre-trial investigation into the lawfulness of the comments posted on Facebook amounted to discrimination against the applicants on the grounds of sexual orientation. The seven judges bench, presided by Judge Robert Spano unanimously held that there was violation of Article 14 taken in conjunction with Article 8 along with Article 13 of the Convention.
The Government of Lithuania contended that the applicants had not exhausted the domestic remedies as it was LGL Association who lodged the complaint and not the applicants. The applicants, owing to the fear of retaliation, approached LGL Association to initiate the proceedings on their behalf. The Court denied the Government’s argument for two reasons. First, the Lithuanian authorities considered the complaint and appeals filed by LGL Association without any objection. Second, relying on the Court’s judgment in Centre for Legal Resources of Velentin Campeanu v. Romania [GC] ECHR  47848/08 it held that the action brought by the LGL Association was not actio popularis, to protect the general public interest, since LGL Association had acted in response to specific facts affecting the rights and interest of the applicants and not to any abstract situation. Therefore, the Court found the complaint to be admissible on the ground that the LGL Association was acting for the applicants.
Article 14 read with Article 8
The Government of Lithuania contended that the photograph posted by the applicant was provocative and was aimed at hurting religious sentiments considering the “cross” on the second applicant’s clothes. The Government contended that it had the wide margin of appreciation to assess the photograph. The Government, despite admitting the comments were “offensive and vulgar”, justified the refusal to open the investigation on the ground that “direct intent” under Article 170, was missing [para. 70]. The domestic courts deemed that holding someone criminally accountable was an ultima ratio, or last result measure.
The applicants claimed that they were being discriminated against because of their sexual orientation. They highlighted the difference in legal outcome if an unmarried opposite sex couple had faced such extreme hate speech for posting a similar photograph. Relying on the judgment in Delfi v. Estonia [GC] ECHR  64569/09, the applicants submitted that the domestic authorities failed to balance the commenters’ right to freedom of expression and applicants’ right to respect for their private life. The applicants questioned the lack of legal certainty in the interpretation of Article 170 of Criminal Code. The applicants contended that their act was protected under Article 10 of the Convention (freedom of expression) which protects expression that offends or shocks the State or a part of the population.
Relying on its judgment in Chassgnou and Others v. France [GC] ECHR  25088/94 and S.A.S v France [GC] ECHR  43835/11, the Court acknowledged the importance of pluralism and tolerance in a democratic society. Further, referring to Bączkowski and Others v. Poland ECHR  1543/06 the Court acknowledged the inherent positive obligation of States under the Convention, to secure the effective enjoyment of the rights and freedom, especially the rights of persons who are more vulnerable to victimisation. With respect to right to respect for private life, S. Marper v. the United Kingdom [GC] ECHR  30562/04 and 20566/04 was cited as relevant. The Court affirmed that a person’s sexual orientation and sexual life fall within the personal sphere and is protected under Article 8 of the Convention. The Court acknowledged that where the acts constitute serious offences against a person’s mental or physical integrity, the criminal law shall ensure the adequate protection. Additionally, the Court noted that Article 14 solely does not presuppose a breach of provisions but protects the enjoyment of rights and freedoms enlisted under the Convention. Citing the recent case, namely Begheluri v. Georgia ECHR  28490/02, the Court noted that where there is a difference in treatment on the basis of sexual orientation, the State’s margin of appreciation is narrow and the government shall justify it.
The Court held that the present case falls under the realm of breach of Article 8 of the Convention. The Court assessed this case under two broad headings.
The idea behind posting the concerned photograph, as per the applicants, was to start a discussion about the rights of people with different sexual orientation [para 91]. Unlike the Government of Lithuania, the Court did not find the applicants’ expression provocative or based on any illegitimate reason. The Court noted that such a discussion on sexual minorities ensures the proper representation of the minority. Referring to the view of Klaipeda District Court that the photograph should have been shared with “like-minded people” [para. 23], the Court observed that sexual orientation was indeed, one of the reasons for the authorities refusal to open the investigation. Further, the Court expressed strong disregard to the statement made by District Court regarding traditional family values and homosexuality [para 21]. Therefore, relying on Carvalho Pinto de Sousa Morais v. Portugal ECHR  17484/15, the Court established that the decision of domestic authorities was motivated by discrimination on the basis of applicants’ sexual orientation.
Referring to the comments on the post [para. 10], the Court disregarded the Lithuanian authorities conclusion. The Court found the comments on the applicant’s post to be hate speech. The Court held that safeguarding the speech of the commenters was an irresponsible exercise of freedom of expression by the domestic authorities. The Court adjudged that inciting hatred against a specific group of people does not necessarily require a call for specific acts of violence or criminality. Moreover, the Court disregarded the Government’s contention that “systematic attack” is necessary to constitute a crime under Article 170. The Court established that the practice and interpretation of Article 170 by domestic authorities is non-uniform. The Court noted that even a single post advocating that a person or group of persons should be “killed”, was sufficient to be taken seriously and that racist or hateful comments which are unlawful on its face may be sufficient for the State to take positive measures. Consequently, to this end, the Court found that the criminal sanctions under Article 170 should have been invoked.
The Court also considered the specific context of the situation in Lithuania and cited to a 2016 Lithuanian Country report by The European Commission against Racism and Intolerance. The Report documented levels of homo-phobic speech on the internet, which it noted was often the first step towards violence and that “appropriate” and “proportionate” actions must be taken by the authorities to combat hate speech. The Court further referenced the European Union Fundamental Rights Agency and the Eurobarometer which found Lithuania had the highest percentage of LGBT respondents in the EU who felt discriminated against or harassed on the grounds of their sexual orientation.
In light of those findings, the Court concluded that the hateful comments “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” [para. 129].
Accordingly, the Court held that there has been a breach of Article 14, taken in conjunction with Article 8 of the Convention.
With regard to Article 13 of the Convention, the Applicants contended that the domestic authorities failed to provide an effective remedy despite extreme homophobic comments. The applicants submitted that such extreme hate speech violated their psychological and mental integrity. Relying on European Union’s Fundamental Rights Agency, [para. 63] they described the situation in Lithuania as hostile towards LGBT individuals [para. 137].
The Court noted that Lithuania’s criminal justice system lacked a comprehensive strategic approach, i.e. no effective remedy to protect people from racist and homophobic hate speech. Considering the applicants’ claim that the existing remedies were not operated effectively, the Court held that there had also been a violation of Article 13.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment provides a mixed outcome in so far as it restricted expression, however the court positively weighed in favor of the protection of dignity and right to respect for private life. The Court recognized the important role the internet plays in access to information but also recognized that those freedoms come with “duties and responsibilities.” Restrictions on freedom of expression may be justified where it is found to be necessary, as in the instant case due to discrimination and incitement to hatred which invokes a positive obligation on states. The Court found that attacks on individuals or groups’ physical and mental integrity required appropriate investigation and where warranted, the application of criminal law. This is an encouraging development in the Court’s case law against anti-LGBTQIA+ opinions and homophobia and safeguarding the rights of people of LGBTQIA+ community.
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