Application Number 41288/15
European Court of Human Rights
Two men posted a public photograph of themselves kissing on Facebook. The post went viral. It attracted around 800 comments, most of which were hateful. The national authorities did not proceed with charging the users making hateful comments, on the grounds that the couple’s ‘eccentric behaviour’ was provocative and that the case would be a ‘waste of time and resources.’ The ECtHR found a violation of Article 13 and Article 8 in conjunction with Article 14.
Date: 14th May 2020
Description of applicant(s): Citizens
Brief description of facts: On 8 December 2014, the first applicant posted a photograph on his Facebook page depicting a same-sex kiss between him and the second applicant. The picture was accessible not only to his Facebook “friends”, but also to the general public. According to the applicants, “the picture went viral online and it received more than 2,400 ‘likes’ and more than 800 comments.” They also submitted that the majority of online comments had been aimed at inciting hatred and violence against LGBT persons in general, while numerous comments had directly threatened the applicants personally. Comments included:
“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.”
On 10 December 2014, both applicants lodged a written request with the LGL Association, of which they were members, asking it to notify the Prosecutor General’s Office of the hateful comments left under the photograph posted on the first applicant’s Facebook page. They asked that this should be done in the name of the LGL Association. They submitted that the comments were not only degrading, detrimental to their dignity and incited discrimination, but also “incited violence and physically violent treatment.” The comments were, therefore, frightening both to homosexual people in general, and to the applicants in particular. On the 30 December 2014, a prosecutor at the Klaipėda district prosecutor’s office took the decision not to initiate a pre-trial investigation regarding the LGL Association’s complaint. On the 9 January 2015, the LGL Association lodged an appeal against the prosecutor’s decision with the Klaipėda City District Court. In a ruling 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 impugned comments “had chosen improper words” to express their disapproval of homosexual people. Even so, the “mere use of obscenities” was not enough to incur criminal liability under Article 170 § 2 of the Criminal Code. The court considered that, in making such comments, their authors had not been inciting others to discriminate against or hate homosexuals. The LGL Association lodged an appeal on 29 January 2015. In a final ruling of 18 February 2015 the Klaipėda Regional Court dismissed the LGL Association’s appeal, upholding the prosecutor’s and the district court’s reasoning, including that court’s arguments regarding the applicants’ “eccentric behaviour”. The regional court also underlined the fact that the first applicant had posted the photograph in question publicly and had not restricted it to his friends or “like-minded people,” even though the Facebook social network allowed 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”. The regional court also considered that, in the absence of objective and subjective elements of a crime under Article 170 of the Criminal Code, it would constitute a “waste of time and resources”, or even an unlawful restriction of the rights of others [that is to say Internet commenters’] to open criminal proceedings. Lastly, criminal proceedings constituted an ultima ratio measure, and not all actions merited them.
(Alleged) target(s) of speech: Homosexual persons
The Court’s assessment of the impugned speech: The Court found that the comments harmed the dignity of the applicants whilst the lack of a comprehensive strategy to tackle bias motives in Lithuania as well as the discriminatory attitude of the relevant authorities to investigate the case meant that there was a violation of Article 13 and Article 8 in conjunction with Article 14.
Important paragraph(s) from the judgment:
Para 117: The Court finds it clear that comments on the first applicant’s Facebook page affected the applicants’ psychological well-being and dignity, thus falling within the sphere of their private life. Indeed, the Government acknowledged that those comments had been deplorable for being “offensive and vulgar.” The fact that human dignity as a constitutional value must be protected by the State has also recently been emphasised by the Constitutional Court. That being so, and finding that the attacks on the applicants had attained the level of seriousness required for Article 8 to come into play, the Court holds that the facts of the case fall within the scope of Article 8 of the Convention. Hence, Article 14 is applicable to the circumstances of the case.
Para. 129: Having regard to all the material at hand, the Court thus finds it established, firstly, that the hateful comments including undisguised calls for violence by private individuals directed against the applicants and the homosexual community in general 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 In the light of those findings the Court also considers it established that the applicants suffered discrimination on the grounds of their sexual orientation. It further considers that the Government did not provide any justification showing that the impugned distinction was compatible with the standards of the Convention
Para.155: The Court cannot but find that the statistics provided both by the Government and the applicants, as well as those by the third-party interveners as well as by international bodies, show otherwise. Firstly, even acknowledging that between 2012 and 2015 some thirty pre-trial investigations regarding homophobic hate speech were opened in Lithuania, one may not overlook the fact that all of them were discontinued, mostly because the culprits could not be found (see paragraph 139 above). As the ECRI noted in 2016, the growing level of intolerance against sexual minorities had remained largely unchecked (see paragraph 56 above). That being so, the Court also gives weight to the applicants’ argument that in view of the law-enforcement authorities’ practice in this regard – and also in response to the outcome of their own case – they had not felt like complaining to the law-enforcement agencies again (see also point 53 of the ECRI report, cited in paragraph 59 above). In fact, in the applicants’ case the regional court even considered that to open criminal proceedings would have been a “waste of time and resources” (see paragraph 23 above). As put forward by the applicants and the third party interveners, who also relied on the ECRI (see paragraphs 136 and 148 above), such prejudicial attitude of the domestic court is fraught with the risk that Article 170 of the Criminal Code would remain a “dead letter”, that, in the words of the LGL association, the law-enforcement authorities chose not to apply “by giving unjustified preference to freedom of expression, or perhaps owing to other motives which, although not related to law, had an influence on law” (see paragraph 19 above). Secondly, the Court notes information regarding the Lithuanian law-enforcement institutions’ failure to acknowledge bias-motivation of such crimes and to take such an approach which would be adequate to the seriousness of the situation (see points 54-55 of the ECRI report, cited in paragraph 59 above; also see points 57 and 58 of that report, cited in paragraph 60 above). In this connection the Court reminds that it has already held in Identoba and Others (cited above, § 77) that without such a strict approach on the part of the law-enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence or even connivance in hate crimes. Regarding Lithuania, the most recent materials by the ECRI also show lack of a comprehensive strategic approach to tackle the issue of racist and homophobic hate speech by the authorities (see paragraph 62 above).
Para. 156: In the light of foregoing the Court holds that, despite one-off cases showing otherwise (see paragraph 54 above), the applicants have been denied an effective domestic remedy in respect of their complaint concerning a breach of their right to private life, on account of their having been discriminated against because of their sexual orientation. Consequently, the Court concludes that there has been a violation of Article 13 of the Convention.
ECHR Articles: Article 13 and 8-14
Use of ‘hate speech’ by the Court in its assessment? Yes:
Para.79: In the present case, where the issue of violence inciting hate speech against persons belonging to the homosexual minority was brought by the LGL Association to the Lithuanian authorities’ attention, the Court is even more inclined to hold that, once they had been notified of such issues – no matter by whom – the prosecutors were under an obligation to investigate those comments.
Para 125: The Court recalls its finding that comments that amount to hate speech and incitement to violence, and are thus clearly unlawful on their face, may in principle require the States to take certain positive measures.