European Court of Human Rights communicates case against Lithuania concerning anti-gay hate speech

The Second Section of the European Court of Human Rights has communicated the case of Jonas Valaitis v Lithuania. The case concerns a journalist, Mr Valaitis, who published an article about "homosexual people" on the Internet portal of a major daily newspaper. 

The facts

Mr Valaitis' publication received numerous comments by different persons. Twenty two comments, written by twenty persons, were particularly negative towards persons of homosexual orientation. 

A couple of those comments were directly targeted against Mr Valaitis, as the author of the article. He was called “a degenerate”, “a faggot” and “a shitty asshole”, it was suggested that he should be “peed on”, he was urged “not to advertise faggots”, it was also suggested that he “should be prosecuted for propaganda that defended perverts”, and that he “kept his shitty opinion to himself” and “did not offend normal persons”. 

The comments towards homosexual persons were even harsher, including a suggestion that they should be “let through the chimney in Auschwitz”.

Mr Valaitis asked the authorities to start a criminal investigation for incitement of hatred and discrimination, under Article 170 § 2 of the Criminal Code, which provides:

A person who publicly ridicules, expresses contempt for, urges hatred of or incites discrimination against a group of persons or a person belonging thereto on grounds of sex, sexual orientation, race, nationality, language, descent, social status, religion, convictions or views shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to two years.

Initially, the authorities refused the request. Afterwards, the criminal investigation was opened and Mr Valaitis was granted the status of a victim. Eventually, the criminal investigation was discontinued by courts on the ground that the statements in the comments constituted their authors’ opinion and had been improper, but had not reached the level of severity to justify prosecution. It had also been impossible to prove the guilt of the author of one of those comments.

Complaint to the Court

Under Article 13 of the European Convention on Human Rights, Mr Valaitis complains that the Lithuanian authorities did not take positive measures to protect persons of homosexual orientation, as well as himself, from hate speech.

Article 13, which guarantees the right to an effective remedy, states:

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Questions to the Parties

The Court has asked the Parties the following questions:
  1. Is Article 13 of the Convention applicable to the applicant’s case (see, mutatis mutandis, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018, and Beizaras and Levickas v. Lithuania, no. 41288/15, § 150, 14 January 2020)?
  2. Has there been a violation of the applicant’s right to effective remedy, as required by Article 13 of the Convention?
  3. The Court refers to the applicant’s grievance that the State authorities had not taken measures to protect him against hate speech linked to his writing about persons of homosexual orientation (see Beizaras and Levickas, cited above, §§ 131-56; on the issue of discrimination by association, see also, mutatis mutandis, Guberina v. Croatia, no. 23682/13, § 64 in limine, 22 March 2016, and Molla Sali v. Greece [GC], no. 20452/14, § 81, 19 December 2018).

Following the recent decision in Carl J√≥hann Lilliendahl v Iceland, it would seem almost certain that the Court will consider the impugned comments in Mr Valaitis' case to constitute "hate speech".

In approaching the issue under Article 13 of the Convention, the Court will probably reiterate its recent finding in Beizaras and Levickas v Lithuania that the Criminal Code itself provides an effective remedy but question whether it can be "considered not to have operated effectively ... due to discriminatory attitudes negatively affecting the application of national law" (§ 151). 

The key issue to be argued, therefore, is whether Mr Valaitis was denied his right to an effective remedy by virtue of the Lithuanian authorities having decided that the anti-gay comments had "been improper, but had not reached the level of severity to justify prosecution" - in other words, that the comments did not reach the threshold of "hate speech" under the Criminal Code. 

If the Court follows its judgment in Beizaras and Levickas it could find that Article 13 has been violated because the attitudes of the authorities had negatively affected the application of domestic law. 

The key question, therefore, is whether the domestic authorities did enough in their application of the Criminal Code to satisfy the Court that they had provided Mr Valaitis with an effective remedy or, by contrast, whether the Court considers, as it has before, that the domestic authorities did not adopt "a strict approach" to prejudice-motivated crimes and the "resultant indifference" is "tantamount to official acquiescence or even connivance in hate crimes" (Identoba and Others v Georgia § 77).

My own view is that, in light of the Court's recent jurisprudence, Mr Valaitis has a very strong case against Lithuania.