Protection from homophobic hate speech - important new judgment from European Court of Human Rights

The Second Section of the European Court of Human Rights has issued its judgment in the case of Beizaras and Levickas v Lithuania, holding unanimously that there had been a violation of the European Convention on Human Rights in respect of the State’s failure to protect individuals from homophobic hate speech.

I first wrote about this case back in 2017, when the Court communicated it.

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.

Examples of the comments are:

“I’m going to throw up – they should be castrated or burnt; cure yourselves, jackasses – just saying”

“If you were born perverts and have this disorder, then go and hide in basements and do whatever you like there, faggots. But you will not ruin our beautiful society, which was brought up by my mum and dad, where men kiss women and do not prick their skewers together. I genuinely hope that while you are walking down the street, one of you will get your head smashed in and your brain shaken up” 

“These faggots fucked up my lunch; if I was allowed to, I would shoot every single one of them”

“Scum!!!!!! Into the gas chamber with the pair of them”

“Hey fags – I’ll buy you a free honeymoon trip to the crematorium”

“Fucking faggots – burn in hell, garbage”

“Into the bonfire with those faggots ...”

“For fuck’s sake ... You fucking gays – you should be exterminated FU”

“Because you’re faggots, and children can see photos such as these, it’s not only the Jews that Hitler should have burned” 

“Burn the faggots, damn it”

“Fags! Into the bonfire those bitches!”

“Fuck you – damn it, kill yourselves, faggots”

“Satan, please allow me to smash their heads into a wall”

“Oh for fuck’s sake – get the fuck out of Lithuania and don’t shame us, you fucking capon; we should put your head under a car and into the noose, you fucking faggot”

The facts

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

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 sexual orientation.

The applicants turned to 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 domestic courts fully endorsed the prosecutor’s decision, finding that the applicants’ behaviour had been “eccentric” and deliberately provocative. The courts emphasised, in particular, that 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”. 

The KlaipÄ—da Regional Court, in particular, stated that 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. 

Complaints to the Court

Relying on Article 14 (prohibition of discrimination), taken in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights, the applicants alleged that they had been discriminated against on the grounds of sexual orientation because of the authorities’ refusal to launch a pre-trial investigation into the hate comments on Mr Beizaras’s Facebook page. 

They also argued that the refusal had left them with no possibility of legal redress, in breach of Article 13 (right to an effective remedy). 

Judgment of the Court

Article 14+8 

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, the Government 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. 

The Court, on the other hand, considered that the applicants’ sexual 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 therefore found that discrimination was at the core of the authorities’ failure to comply with their duty to investigate, in an effective manner, whether the comments made about the applicants 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 and, as such, that there had been a violation of Article 14, taken in conjunction with Article 8, of the Convention. 

Article 13

The Court found that the prosecutor, whose decision had been upheld by the domestic courts, had not provided an effective domestic remedy for homophobic discrimination. 

The Court therefore found that there had been a violation of Article 13 of the Convention.

Importance of the judgment 

The judgment of the Court is important because it explicitly addresses "hateful comments", including undisguised calls for violence, made by private individuals against the gay community via social media. 

In contemporary societies, in which hateful claims are made against gay people routinely and regularly via social media, the judgment is far reaching.

It reminds public authorities that they are under a positive obligation to investigate, in an effective manner, whether comments made on social media constitute incitement to hatred and violence against gay people. 

Public authorities cannot "turn a blind eye" to hate speech on social media against gay people but, rather, must investigate it in a way that provides gay people with adequate protection.

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."

ILGA-Europe has welcomed the "landmark" judgment. 

This is the first successful case in the Court against Lithuania concerning sexual orientation discrimination. As such, it contributes to the developing jurisprudence of the Court in respect of sexual orientation discrimination in Central and Eastern Europe.

Dr Silvia Falcetta and I have recently published our study, "Sexual Orientation Equality In Central And Eastern Europe: The Role Of The European Convention On Human Rights", in European Human Rights Law Review.