Communicated on 16 June 2017
FOURTH SECTION
Application no. 41288/15
Pijus BEIZARAS and Mingirdas LEVICKAS
against Lithuania
lodged on 13 August 2015
STATEMENT OF FACTS
The first applicant, Mr Pijus Beizaras, was born in 1996 and lives in Kaunas. The second applicant, Mr Mingirdas Levickas, was born in 1995 and lives in Panevėžys. They are Lithuanian nationals and are represented before the Court by Mr T.V. Raskevičius, a lawyer practising in Vilnius.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
At the time the application was lodged with the Court the first applicant was a secondary-school student. He is an openly gay man in a same-sex relationship with the second applicant, who at that time was a university student. Both applicants are members of the National Lesbian, Gay, Bisexual and Transgender Rights Association LGL (hereinafter – “the LGL Association”).
On 7 December 2014 the first applicant posted a picture on his Facebook profile depicting a same-sex kiss between him and the second applicant. The picture was accessible not only to his “friends” on the social network profile, but also to the general public. According to the applicants, the intention of posting the picture publicly was to announce the beginning of the applicants’ relationship.
According to the applicants, “the picture went viral online and it received more than 2,400 ‘likes’ and more than 800 comments”. They also submit that the majority of online comments were aimed at inciting hatred and violence against LGBT people in general, while numerous comments directly threatened the applicants personally. Some examples of the posted comments were: “Faggots should be burned (Sudeginti piderastus)”, “You both should be thrown into the gas chambers (I duju kameras abu)”, “You are fucking gays – you should be exterminated (Gėjai jūs supisti, jus naikinti nx.)”, “... faggots... such should be hit into the head (... pydarasai... Pisti y galva tokiems reikia)”, “You faggots should not post such photographs; such faggots should be given a good kicking (Pydarai jūs nekelkit fotkes tokias, suspardyt tokius pidarastus)” and “Kill them! (Žudyt!)”.
On 10 December 2014 both applicants lodged a written request with the LGL Association for it to lodge a complaint on their behalf with the Public Prosecutor’s Office in respect of the incitement to hatred and violence against LGBT people in general and against the applicants in particular. The applicants explained in their request that their wish for the LGL Association to act on their behalf was based on their view that the Lithuanian legal system did not provide any additional procedural guarantees for the alleged victims of homophobic hate crimes. The applicants also wrote that they feared retaliation by the perpetrators of the online comments should they lodge such a complaint with the Public Prosecutor’s Office personally. They also believed that were they to lodge a personal complaint it would not be treated seriously by law-enforcement officials. They also considered that the LGL Association, as a non-governmental organisation, was better equipped to deal with the complaint. In their application to the Court the applicants submit that the LGL Association by that time had already gained experience in monitoring and taking legal action against hate speech in “cyberspace”.
On 12 December 2014 the LGL Association lodged a complaint, on behalf of the two applicants, with the Prosecutor General’s Office, asking that criminal proceedings be initiated regarding thirty-one comments posted on the first applicant’s public social media profile. The complaint was lodged on the basis of Article 170 §§ 2 and 3 of the Criminal Code (“Incitement against any national, racial, ethnic, religious or other group of people”) and Article 19 § 1 (3) of the Law on the Provision of Information to the Public, which prohibits publishing in the media information that incites hatred or violence against a group of people because of their sexual orientation (see the “Relevant domestic law” part below). It was indicated in the complaint that the comments in question had ridiculed and expressed contempt for individuals of homosexual orientation, as well as incited discrimination, hatred and violence against them.
On 30 December 2014 a prosecutor at the Klaipėda district prosecutor’s office took the decision not to start a pre-trial investigation regarding the LGL Association’s complaint. The prosecutor held that in order to assess whether the comments in question had been of a criminal nature, it was necessary to take into account not only the comments as such, but also the context in which those comments had been written. Given that the comments had been written by different people (of the thirty-one comments, twenty-seven people had written one comment each, and two people had written two comments each), each comment had to be assessed individually, and not as a whole. It was also essential to establish whether those comments constituted an active attempt (aktyvus siekis) to incite other people to disseminate degrading comments and to incite them to violence. The prosecutor then considered that active attempts required systematic action. In the applicants’ case, however, such a criterion had not been met because various individuals had written only one or two comments, which was not enough to be considered as constituting a systematic attempt to incite hatred or violence against people distinguishable by their sexual orientation. From this it followed that the objective element of a crime, as established under Article 170 §§ 2 and 3 of the Criminal Code, was absent. Furthermore, the fact that “expression of opinion” had been non-systematic and isolated meant that there had also been no subjective element – direct intent – of the crime in question, because by posting the comments their authors had not sought to incite hatred or violence against individuals who were distinguishable by their sexual orientation. Even though the authors of the comments had reacted “unethically” in respect of the image portrayed in the two applicants’ photograph, such “amoral behaviour” did not constitute elements of a crime under Article 170 §§ 2 and 3 of the Criminal Code. The prosecutor lastly considered that the Supreme Court was of a similar view, in view of the fact that by a ruling of 18 December 2012 in case no. 2K‑677/2012 it had acquitted a person who had posted a comment stating that gay people were “perverts” and “belonged in a psychiatric hospital”. In that case the Supreme Court had considered that such a comment, even though unethical, had not actively incited hatred or discrimination against homosexual people.
On 9 January 2015 the LGL Association appealed against the prosecutor’s decision to the Klaipėda district pre-trial investigation judge. The LGL Association noted that in 90% of cases in Lithuania hatred was promoted through the electronic sphere (elektroninėje erdvėje), such as by creating hatred-promoting groups on the Facebook social network or on Internet forums. The Association also relied on a number of Lithuanian court decisions which had found that a single comment had been sufficient to find the author thereof guilty of a crime under Article 170 § 2 of the Criminal Code. As to the applicants’ case, it also argued, inter alia, that several epithets expressed in the comments had promoted physical harm, violence and even the killing of members of the group in question (for example, advocating burning, and extermination), which had indicated their authors’ particular approach (ypatingą nusiteikimą) towards people of non‑traditional sexual orientation and had clearly articulated, by direct intent, a call for violence. On this point the LGL Association relied on the Court’s judgment in Vejdeland v. Sweden (no. 1813/07, §§ 54 and 55, 9 February 2012) where the Court had held that Sweden had not breached the applicants’ rights by prosecuting them, even though their statements had not called for violence. Lastly, the LGL Association argued that if the comments had been only “expressing the authors’ opinion”, it was totally unclear what could be considered as “public ridicule, expressing contempt, urging hatred or inciting discrimination” within the meaning of Article 170 § 2 of the Criminal Code.
By a decision of 23 January 2015 the Klaipėda City District Court dismissed the LGL Association’s appeal. The court shared the prosecutor’s view that the authors of the comments “had not chosen proper words (pavartojo netinkamus žodžius)” to express their disapproval of homosexual people. Even so, “the mere use of obscenities (tik necenzūrinių žodžių pavartojimas)” was not enough to incur criminal liability under Article 170 § 2 of the Criminal Code.
The district court also stated that the first applicant’s social network profile, where the picture of the two men kissing had been posted, had been public, visible and accessible not only to his acquaintances and friends, but also to individuals who were completely unknown to him. Therefore a person posting in the public sphere (viešoje erdvėje) a picture of two men kissing should have and must have foreseen that such “eccentric behaviour (ekscentriškas elgesys)” really did not contribute to social cohesion or the promotion of tolerance. The owner of the social network profile, by exercising his freedom to express his convictions and freedom to promote tolerance, had to take into account the fact that that freedom was inseparable from the obligation to respect the views and traditions of others. The majority of Lithuanian society “very much appreciated values of a traditional family (itin vertina tradicinės šeimos vertybes)”. This was established in Article 38 of the Constitution, which read that the family should be the basis of society and the State, and that marriage should be concluded upon the free mutual consent of a man and a woman. The district court also relied on a passage from the Constitutional Court’s ruling, which had held that that family was based on a man and a woman living together (see the “Relevant domestic law” part below). The district court also considered that, in the light of the case-file material, the prosecutor’s decision not to prosecute the authors of the comments had been reasonable. Lastly, the district court stated that criminal proceedings were an ultima ratio measure and that they should therefore be initiated only when serious grounds and all elements of a crime existed. This was not the situation in the case at hand.
The LGL Association lodged an appeal, arguing that certain comments were clearly meant to incite violence, thus directly constituting the objective element of a crime under Article 170 §§ 2 and 3 of the Criminal Code. The LGL Association also argued that the subjective element of a crime, that is to say direct intent, should be assessed only after the identification of the alleged perpetrators and during subsequent criminal proceedings – not when making a procedural decision on whether to start a pre-trial investigation or not. Responding to the district court’s statement that the majority of Lithuanian society very much appreciated the values of a traditional family, the LGL Association underlined that a criminal offence could not be justified by the views and traditions of either an individual or the majority of society. In that connection the LGL Association also relied on the Court’s case-law, which stated that freedom of expression was applicable not only to “information” or “ideas” that were favourably received or regarded as inoffensive or as a matter of indifference, but also those that offended, shocked or disturbed. The LGL Association lastly relied on the Court’s judgment in Balsytė-Lideikienė v. Lithuania (no. 72596/01, § 82, 4 November 2008) to the effect that one right, such as the freedom of speech of the authors of the comments, could be restricted if such a restriction was necessary because that speech was offensive.
By a final ruling of 18 February 2015 the Klaipėda Regional Court dismissed the LGL Association’s appeal, upholding the lower court’s reasoning, including the arguments about the applicants’ “eccentric behaviour”. The regional court also underlined that the first applicant had posted the photograph in question publicly and not only to his friends or like-minded people (bendraminčiams), even though the Facebook social network provided for such a possibility. Such an action could therefore be interpreted as constituting “an attempt to deliberately tease or shock individuals with different views or to encourage the posting of negative comments”.
In their application to the Court the applicants stated that the proceedings before the domestic courts had generated a lot of interest in both local and international media. As a result, they had experienced increased attention and hostility both in the private and in the public spheres. The first applicant had been summoned by his secondary-school headmaster, who had requested him “not to disseminate his ideas”. The second applicant, who at the time of introduction of the application to the Court had been a theology student at the university, had been summoned by the dean of his faculty, who had requested him to change his course of studies because his “lifestyle did not correspond with the faculty’s values”. On several occasions the applicants had been verbally harassed in public places. They had also received a number of threatening private messages in their social network mailboxes. None of those incidents had been reported to the police, because the applicants had been continuously losing their faith in the effectiveness of the law-enforcement system in Lithuania in the light of their unsuccessful attempts to launch a pre-trial investigation in connection with the initial hateful comments.
B. Relevant domestic law and practice
Article 38 of the Lithuanian Constitution reads:
“The family shall be the basis of society and the State.
Family, motherhood, fatherhood and childhood shall be under the protection and care of the State.
Marriage shall be concluded upon the free mutual consent of man and woman ...”
Article 19 of the Law on the Provision of Information to the Public (Visuomenės informavimo įstatymas), entitled “Information not to be made public”, in so far as relevant, reads:
“1. It shall be prohibited to make public in the media information which:
...
3) instigates war or hatred, ridicule, humiliation, instigates discrimination, violence, or the physically violent treatment of a group of people or a person belonging to that group because of age, sex, sexual orientation, ethnic origin, race, nationality, citizenship, language, origin, social status, belief, convictions, views or religion ...”
Article 170 of the Criminal Code, entitled “Incitement against Any National, Racial, Ethnic, Religious or Other Group of People”, reads:
“1. A person who, for the purposes of distribution, produces, acquires, sends, transports or stores items ridiculing, expressing contempt for, urging hatred of or inciting discrimination against a group of people or a person belonging thereto on the grounds of sex, sexual orientation, race, nationality, language, descent, social status, religion, convictions or views, or [items] inciting violence, the physical violent treatment of such a group of people or the person belonging thereto or distributes them
shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to one year.
2. A person who publicly ridicules, expresses contempt for, urges hatred of or incites discrimination against a group of people or a person belonging thereto on the 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.
3. A person who publicly incites violence or the physically violent treatment of a group of people or a person belonging thereto on the grounds of sex, sexual orientation, race, nationality, language, descent, social status, religion, convictions or views or finances or who otherwise supports such activities
shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to three years.
4. A legal entity may also be held liable for the acts provided for in this Article.”
By a ruling of 28 September 2011 in a case regarding the compatibility of the Seimas’ Resolution “On the Approval of the State Family Policy Concept” with the Constitution, the Constitutional Court held:
“15.1. In the context of the constitutional ... case at issue it needs to be noted that the constitutional concept of family may not be derived solely from the institution of marriage, which is entrenched in the provisions of paragraph 3 of Article 38 of the Constitution. The fact that the institutions of marriage and family are entrenched in the same Article 38 of the Constitution indicates an inseparable and unquestionable relationship between marriage and family. Marriage is one of the foundations of the constitutional institution of the family [and serves] the [purpose of] the creation of family relations. It is a historically established family model that undoubtedly has exceptional value in the life of society and which ensures the viability of the nation and the State, as well as their historical survival.
However, this does not mean that the Constitution – inter alia, the provisions of Paragraph 1 of Article 38 thereof – does not protect and defend families other than those founded on the basis of marriage – inter alia, the relationship between a man and a woman living together without having concluded a marriage, which is based on the permanent bonds of emotional affection, reciprocal understanding, responsibility, respect, shared upbringing of the children and similar bonds, as well as on the voluntary determination to take on certain rights and responsibilities, which form a basis for the constitutional institutions of motherhood, fatherhood and childhood.
Thus, the constitutional concept of family is based on mutual responsibility between family members, understanding, emotional affection, assistance and similar relations, as well as on the voluntary determination to take on certain rights and responsibilities – that is to say the content of the relationship – whereas the form of expression of these relationships has no essential significance for the constitutional concept of family.”
COMPLAINTS
1. The applicants firstly argue that they have suffered a violation of Article 8 of the Convention, taken in conjunction with Article 13. They note that the Court’s case-law holds that the concept of private life includes a person’s sexual orientation and psychological integrity, and that States have a positive duty to ensure respect for human dignity and moral integrity under Article 8. The applicants submit that instances of hate speech strike at the core of the Convention’s protections. In addition to violating the psychological and moral integrity of the applicants, they create an environment of intimidation that undermines the right to personal autonomy and self-determination. Given that the comments under the photograph on the first applicant’s social media profile included insulting language (such as “faggots” and “perverts”), the homophobic implication of their authors’ speech were evident. Furthermore, the applicants were threatened with serious harm, and even subject to death threats, in comments that contained such exhortations as “burn them”, “exterminate them” and “kill them”. By reading the comments the applicants were placed in a situation of intense fear and anxiety, which continuously affected their daily lives and routines. The aim of that verbal abuse was evidently to frighten the applicants so that they would desist from publicly displaying their affection and from supporting the LGBT cause through their increased visibility.
In this context the applicants also emphasise that their feelings of emotional distress were most certainly exacerbated by the public authorities’ failure to launch an effective pre-trial investigation into direct instances of hate speech calling for the harming, violation and killing of the applicants. Furthermore, the online hate speech and increased public profile of the case have had direct consequences on the day-to-day lives of the applicants. In addition to the problems that both of them have faced in their educational institutions, they have been singled out and verbally harassed in public spaces. The causal link between the State’s failure to launch an effective pre-trial investigation regarding the initial instances of hate speech and the resulting atmosphere of impunity, which led to the subsequent attacks on the applicants, is self-evident. The applicants state that none of those incidents have been reported to the police, because the applicants have been gradually losing their faith in the effectiveness of the law-enforcement system in Lithuania in the light of their unsuccessful attempts to launch a pre-trial investigation in connection with the initial hateful comments.
The applicants also maintain that the State failed to conduct a proper and effective investigation regarding their Article 8 complaint. Firstly, in their case the domestic authorities considered that a crime under Article 170 §§ 2 and 3 had to have been committed by means of systematic actions, even though neither the wording of that provision nor its interpretation by the domestic courts in other hate-speech cases mandated this criterion. In fact, according to case-law, one single expression of public ridicule or contempt, or one single instance of hatred or discrimination against a certain group of people, amounted to the criminal offence of incitement of hatred. It followed that by introducing additional element of actus reus the prosecutor and the domestic courts relied on a flawed interpretation of the law and violated the fundamental principle of legal certainty. Secondly, the prosecutor and the courts attached significant weight to the fact that the alleged crime against the applicants had lacked direct intent, concluding that there was therefore no “subjective element” or mens rea in respect of the crime. However, both the prosecutor and the appellate courts reached this conclusion without approaching and conducting interviews with the alleged perpetrators, notwithstanding the LGL Association’s request that such investigative steps be taken. In this connection the applicants note that a failure to take reasonable steps to secure the evidence critical for the effective investigation of the case amounts to a violation of Article 13 (they relied on Beganović v. Croatia, no. 46423/06, § 75, 25 June 2009 and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004‑IV (extracts)).
The applicants further submit that the domestic authorities failed to strike a fair balance between competing interests – the right to freedom of expression on the part of Internet commenters and the applicants’ right to respect for their private life. They rely on the Court’s judgment in Delfi AS v. Estonia ([GC], no. 64569/09, § 110, ECHR 2015) to the effect that while important benefits could be derived from the Internet in respect of the exercise of freedom of expression, liability for defamatory or other types of unlawful speech had, in principle, to be retained and constitute an effective remedy for violations of personality rights. The Court also held that the unlawful nature of online comments in certain instances did not require any further linguistic or legal analysis if those remarks were on the face of it unlawful. For the applicants, it was difficult to understand how comments such as “Faggots should be burnt”, “You both should be thrown into the gas chambers”, “You are fucking gays – you should be exterminated” and “Kill them!” in their case did not amount to criminally punishable hate speech in respect of sexual orientation, under Article 170 § 2 of the Criminal Code. If those comments were only “unethical” expression of opinion, it becomes unclear what statements would be “sufficient” to qualify as “publicly ridiculing, expressing contempt for, urging hatred or inciting discrimination”.
The applicants insist that the circumstances of the present case should be assessed in the light of the complex social realities in Lithuania, which at best could be described as being hostile towards LGBT individuals. They rely on 1) a 2013 LGBT survey conducted by the European Union Fundamental Rights Agency which indicated that over the previous twelve months 61% of Lithuanian LGBT respondents had felt discriminated against or harassed on the grounds of sexual orientation, and 2) on average, 525 in 1,000 LGBT people had been subject to a violent incident in Lithuania, which is the highest such figure in the European Union. The applicants consider this indicator to be especially worrisome, since it has been established that the prevalence of unpunished hate speech eventually leads to actual acts of violence against individuals belonging to certain socially vulnerable groups.
The applicants consider that in this particular case the Lithuanian authorities’ refusal to open a pre-trial investigation reflected the general attitude in Lithuania towards alleged instances of homophobic hate speech online. For example, in the period between 2013 and 2015 the LGL Association submitted twenty-four complaints to law-enforcement authorities in relation to 206 instances of alleged hate speech online. On the basis of those complaints, twenty-eight pre-trial investigations were initiated in 2013, thirteen in 2014 and eight in 2015. Interestingly enough, all of those pre-trial investigations were either suspended or terminated, and thus did not lead to the actual identification or punishment of the alleged perpetrators. The three main reasons for that were: 1) failure to identify the individual who had committed the criminal offence in question; 2) failure to establish the elements of a criminal offence, and 3) the IP address in question belonged to a foreign jurisdiction. Moreover, between 2013 and 2015 several requests to for the launch of a pre-trial investigation had been refused altogether. It could therefore be concluded that the Lithuanian authorities systemically failed in providing an effective remedy for the alleged victims of homophobic hate speech online.
2. The applicants also allege a violation of Article 14, taken in conjunction with Articles 8 and 13. They note that when upholding the prosecutors’ decisions not to start a pre-trial investigation regarding the impugned comments the courts stated that the majority of society in Lithuania very much appreciated values of a traditional family. In their case the court of last instance also interpreted the applicants’ same-sex-kiss picture as “an attempt to deliberately tease or shock individuals with different views or to encourage the posting of negative comments”. The applicants thus consider that the alleged discrimination on the ground of sexual orientation is best illustrated by a hypothetical comparison with other individuals in a similar situation, such as an unmarried different-sex couple posting of a joint picture on their public social media profile. Based on the reasoning of the domestic courts, such a different-sex kiss would be in line with “values of a traditional family” and would not be considered to constitute “eccentric behaviour”. Given that such a different-sex kiss (that is to say “non-eccentric behaviour”) was not supposed to provoke negative comments being posted, the Public Prosecutor’s Office and the national courts would potentially have launched a pre-trial investigation regarding any comments encouraging “killing”, “burning” or “exterminating” the different-sex couple. The applicants thus assert that in their case the refusal by the public authorities to open a pre-trial investigation was partially or entirely motivated by unmerited distinction on grounds of their sexual orientation. The applicants also disagree that the expression of their affection (that is to say their same-sex kiss) should have been considered as constituting “eccentric behaviour”, for they did not violate the rights of others by posting that particular picture on the first applicant’s social media profile. They therefore maintain that their differential treatment on the grounds of their sexual orientation did not have any objective and reasonable justification, and thus constitutes a violation of Article 14 of the Convention, taken in conjunction with Articles 8 and 13.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 14 of the Convention, taken in conjunction with Article 8 thereof, on account of the domestic authorities’ decision to discontinue the criminal investigation concerning the comments on the first applicant’s Facebook social network page (see Vejdeland v. Sweden, no. 1813/07, § 55, 9 February 2012; also see, mutatis mutandis, Identoba and Others v. Georgia, no. 73235/12, §§ 70 and 71, 12 May 2015, and R.B. v. Hungary, no. 64602/12, §§ 39 and 40, 12 April 2016)?
2. Have the applicants suffered discrimination on the grounds of their sexual orientation, in breach of Article 14 of the Convention, taken in conjunction with Articles 8 and 13?
The Court refers to the applicants’ grievance about the Lithuanian authorities’ predisposed bias against a homosexual minority (see, mutatis mutandis, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 121, ECHR 1999‑VI; also see Identoba and Others, cited above, § 68), given that the two applicants’ same-sex kiss picture had been interpreted by those authorities as “eccentric behaviour” and as “attempt to deliberately tease or shock individuals with different views or to encourage the posting of negative comments” which, in turn, also led those authorities to discontinue the criminal investigation.
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