CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 janvier 2020

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LITHUANIA   (Application no. 41288/15)       JUDGMENT   Art 14 (+ Art 8) • Private life • Discrimination on the basis of sexual orientation • Refusal to prosecute authors of serious homophobic comments on Facebook including undisguised calls for violence • Positive obligations • Authorities’ failure to investigate effectively whether impugned comments constituted incitement to hatred and violence Art 13 • Effective remedy • Discriminatory attitudes impacting on the effectiveness of remedies in the application of domestic law Art 35 § 1 • Exhaustion of domestic remedies • Exhaustion requirement complied with • NGO pursuing criminal complaints on the applicants’ behalf • Applicants not required to use civil-law remedies   STRASBOURG   14 January 2020       FINAL   14/05/2020     This judgment has become final under Article 44 § 2 of the Convention. In the case of Beizaras and Levickas v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President ,   Marko Bošnjak,   Egidijus Kūris,   Ivana Jelić,   Arnfinn Bårdsen,   Darian Pavli,   Saadet Yüksel, judges , and Stanley Naismith, Section Registrar , Having deliberated in private on 22 October 2019 and 26 November 2019, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no.   41288/15) against the Republic of Lithuania lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Lithuanian nationals, Mr Pijus Beizaras (“the first applicant”) and Mr Mangirdas Levickas (“the second applicant”), on 13   August 2015. 2.     The applicants, who had been granted legal aid, were represented by Mr   R.W.   Wintemute (a lawyer practising in London) and Mr   T.V.   Raskevičius (a representative of the non-governmental organisation National Lesbian, Gay, Bisexual and Transgender (LGBT) Rights Association ( Nacionalinė LGBT teisių organizacija ), hereinafter “the LGL Association”, see also paragraphs   7, 29 and 55 below). The Lithuanian Government (“the Government”) were represented by their Agent, Ms   K.   Bubnytė-Širmenė. 3.     The applicants alleged, in particular, that they had been discriminated against on the grounds of sexual orientation, in breach of Article 14 of the Convention taken in conjunction with Article 8, on account of the public authorities’ refusal to launch a pre-trial investigation into hateful comments left on the first applicant’s Facebook page. They also argued that the authorities’ refusal to launch a pre-trial investigation had left them without the possibility of legal redress, in breach of Article 13 of the Convention. 4.     On 16 June 2017 notice of the application was given to the Government. 5.     In addition to written observations submitted by the applicants and the Government, third-party comments were received jointly from the AIRE Centre (Advice on Individual Rights in Europe), ILGA-Europe (the European branch of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), the International Commission of Jurists and the Human Rights Monitoring Institute, which had collectively been granted leave by the President of the Section to intervene as a third party (Article   36 §   2 of the Convention and Rule   44 §   2). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The first applicant was born in 1996 and lives in Kaunas. The second applicant was born in 1995 and lives in Panevėžys. 7 .     At the time that the application was lodged with the Court, the first applicant was a secondary-school student at the Kaunas School of Applied Arts. He graduated from that school in June 2017. He is an openly gay man in a same-sex relationship with the second applicant. At the time of the lodging of the application with the Court, the second applicant was a theology student at the Vytautas Magnus University in Kaunas. In August 2015 he discontinued his theology studies and instead began studying psychology at the same university. Both applicants are members of the LGL Association. 8 .     As can be seen from the material provided and relied on by the Government – namely, copies of public posts on the Facebook pages of the first and the second applicants – on 31   December 2013 the second applicant publicly posted on Facebook that on that day he had “met for the first time” the first applicant. On 26   March 2014 the first applicant publicly posted on his Facebook account, asking: “Do I have any homophobic ‘friends’ who are against LGBT people?” On 17 May 2014 the first applicant publicly posted a summary of the main arguments cited by homophobic commenters (such as the assertion that homosexuality was a disease and a perversion that was against the laws of nature). On 30 May 2014 the first applicant stated in a public post that he had excluded homophobic persons from his Facebook “friends”. On 4 July 2014 the first applicant announced in a public post that he was “in a relationship” with the second applicant. 1.     The photograph in question, and the comments and reaction that followed 9 .     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. As stated by the applicants in their application to the Court, the intention of posting the picture publicly was to announce the beginning of the applicants’ relationship. 10 .     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 people in general, while numerous comments had directly threatened the applicants personally. The posted comments, of which the Lithuanian law-enforcement authorities were notified afterwards, included the following (the Lithuanian has not been corrected): “I’m going to throw up – they should be castrated or burnt; cure yourselves, jackasses – just saying” ( Vimtelsiu, kastruot ar degint tokius, pasigydykit asilai, tik sakau ) “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” ( Jei jau gimet isgamom ir turit liga, eikit pasislepe rusiuose ka norit ir darykit pyderastai. Bet musu grazios visuomenes, kuria uzaugino mama ir tetis ir vyrai buciuoja moteris, o ne badosi spagom tarpusavyje – nesugadinsit. As labai nuosirdziai tikiuosi kad kazkuriam is jusu einant gatve atitrenks galva kazkas ir atpurtys smegeneles ) “These faggots fucked up my lunch; if I was allowed to, I would shoot every single one of them” ( Supisti pietai per siuos pyderastus, leistu visus iki vieno issaudyciau ) “Scum!!!!!! Into the gas chamber with the pair of them” ( Urodai!!!!!! I duju kameras abu ) “Hey fags – I’ll buy you a free honeymoon trip to the crematorium.” ( Ei pyderai medaus menesio kelione nupirksiu nasaram y krematoriuma ) “Fucking faggots – burn in hell, garbage” ( Kurwa pydarai blt, dekit pragare siuksles ) “Into the bonfire with those faggots ...” ( Pydarastus and lauzo ... ) “For fuck’s sake ... You fucking gays – you should be exterminated FU” ( Eik tu nahui... Gėjai jūs supisti, jus naikint nx ) “Because you’re faggots, and children can see photos such as these, it’s not only the Jews that Hitler should have burned” ( Tuom kad jus pydarasai esat ir vaikai mato tokias ft issigimeli, galėjo Hitleris netik žydus deginti ) “Burn the faggots, damn it” ( Sudeginti piderastus ku*va ) “Fags! Into the bonfire those bitches!” ( Gaidžiai! Ant laužo kurvas! ) “Fuck you – damn it, kill yourselves, faggots” ( Eik to nahui krw nusizudykit piderai ) “Satan, please allow me to smash their heads into a wall” ( Šetone prašau duok man leidimą daužys tokiem galvas į sienas ) “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” ( Oj kurwa pidaras pusk is lt nedares gedos wisgaidy tu krw jabanas galwa po masina pakist ir sniurais suka tu kwr jabanas ) “Kill ...” ( Zudyt ... ) 11 .     On 9   December 2014 the photograph was reposted by LGBT-friendly Vilnius (an organisation upholding the rights of LGBT people) on its public Facebook page with the following comment: “Two young men, who live in Kaunas – Pijus and Mangirdas – today caused a big commotion on Lithuanian Facebook pages, provoking a huge number of ‘likes’, ‘shares’; and hateful comments ... Why? The reason is simple: a kiss. Nothing more, nothing less. We asked them what prompted their choice to make this nice photograph public. Here is Pijus’s wise reply: ‘We hope that maybe some lonely person, who is being condemned by others, will see this photograph and will no longer feel lonely. Maybe, [standing] on the roof of some house, or on the edge of a window sill or balcony, he or she will move to a safer spot, where nothing will threaten him or her and his or her life will not be just a statistic.’ Thank you Pijus, and thank you, Mangirdas! Your courage inspires and gives hope. Let’s express our support by sharing [the link to the post carrying the photograph] and expressing our opinion.” 12 .     On 10   December 2014 the LGL Association shared the photograph on its Facebook page and publicly posted the following: “We are happy about the bravery of these young men. Now they need support – more than ever – here on Facebook, and also in their everyday life. So, is it just a kiss? What is the reaction of Lithuanians who avoid being labelled as homophobes? Please pay attention to their opinions expressed in the comments.” 13.     Subsequently, on 12   December 2014, the LGL Association stated in a public post on its Facebook page: “Homophobia seeps through not only anonymous comments on Internet portals but also on Facebook, where people post under their true names. We did as we said we would: the meanest comments and their authors have already been denounced to the law-enforcement institutions. Do express your opinion respectfully and responsibly ... There are thousands of comments and thousands of people making them. You cannot catch them all, but this is not our purpose. It is more important to show society that [making such hateful comments] is against the law and that hatred cannot be tolerated.” 14 .     In that context, the Government also provided a screenshot of the first applicant’s Facebook page from December 2016, where he had written “Two years ago we were causing a commotion” and provided a link to the photograph in question. 15 .     In June 2016 LGBT-friendly Vilnius shared on its Facebook page both applicants’ impressions of the Baltic Pride event. The applicants expressed their satisfaction that the parade had gone well and had passed off without incidents such as the throwing of eggs or disruptions staged by “supporters of traditional values”. The two applicants had marched at the forefront of the parade, carrying the Lithuanian flag. 2.     The attempts to have criminal proceedings opened 16 .     On 10   December 2014 both applicants lodged a written request with the LGL Association, of which they were both members (see paragraph   7 above), asking it to notify, in its own name, the Prosecutor General’s Office of the hateful comments left under the photograph posted on the first applicant’s Facebook page. 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. The applicants considered that such actions were criminal and merited pre-trial investigation. They reasoned in their request that their wish for the LGL Association, as a non-governmental organisation that defended the public interest, to act on their behalf was based on the applicants’ view that the Lithuanian legal system did not provide any additional procedural guarantees for alleged victims of homophobic hate crimes. The applicants also wrote that they feared retaliation by the authors of the online comments should they personally lodge such a complaint with the prosecutor. They also believed that were they to lodge a personal complaint it would not be treated seriously by law-enforcement officials. 17 .     On 12 December 2014 the LGL Association lodged a complaint with the Prosecutor General’s Office, asking that criminal proceedings be initiated regarding thirty-one   comments posted on the first applicant’s public Facebook page (see paragraph 10 above). 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” – see paragraph   30 below)   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 paragraph   33 below). It was indicated in the complaint that the comments in question had ridiculed and expressed contempt for individuals of homosexual orientation, and incited discrimination, hatred and violence against them. The LGL Association also added a hard copy of the photograph in question and the comments posted below it. 18 .     On 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. Having examined the thirty-one comments referred to by the LGL Association, the prosecutor noted that of those thirty-one comments, twenty-seven people had written one comment each, and two people had written two comments each. For the prosecutor, this was easy to establish, since the commenters had placed those comments under their personal profiles. The prosecutor held that in order to assess whether the comments in question were 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, each comment had to be assessed individually, and not collectively. 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 commit violence. The prosecutor then considered that active attempts required “systematic action”. In the applicants’ case, however, that 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 the “expression of opinion” in question had been non-systematic and isolated meant that there had been no subjective element – namely, that of direct intent – in the crime in question, because by posting the comments the authors thereof had merely been “expressing their opinion”, instead of seeking 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 photograph of the two applicants, such “immoral behaviour” did not constitute an element 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 (for a more detailed description see paragraphs 39-41 below). The prosecutor thus found that his conclusion was in line with the Supreme Court’s practice in such cases – that is to say, that comments of such a tenor were unethical but not criminal. 19 .     On 9   January 2015 the LGL Association lodged an appeal against the prosecutor’s decision with the Klaipėda City District Court. The LGL Association pointed out that the prosecutor had taken the decision not to prosecute on two grounds: firstly, that the actions of the people who had commented on the above-mentioned Facebook post had not been systematic in nature, and secondly, that in respect of cases concerning similar situations (that is to say, comments of a similar nature) the authorities routinely considered that no crime had been committed. The LGL Association noted that in more than 90% of cases in Lithuania, hatred was promoted through the electronic sphere – for example, by the creation of hatred-promoting groups on the Facebook social network or on Internet forums. The LGL Association also relied on Lithuanian court decisions of 2014 at district court (that is to say, first-instance) level 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 (see paragraphs 50-51 below). The LGL Association thus disputed the prosecutor’s conclusion that such actions had to be systematic in nature in order for criminal liability to arise. The LGL Association argued that the question of whether or not comments could be deemed to be systematic in nature could be taken into account when assessing the gravity of a crime and imposing a punishment on the author of such comments, but it did not amount to a constitutive element of that crime. As to the applicants’ case in particular, it also argued, inter alia , that several terms contained in the comments had promoted the infliction of physical harm and even the killing of members of the group in question (for example, advocating burning and extermination), which had indicated their authors’ “particular attitude” ( ypatingą nusiteikimą ) towards people of non-traditional sexual orientation and had clearly intentionally articulated a call for violence. On this point the LGL Association relied on the Court’s judgment in Vejdeland v. Sweden (no.   1813/07, §§ 54-55, 9   February 2012), in which it had held that Sweden had not breached the rights of the applicants in that case by prosecuting them, even if their statements had not called for violence. Lastly, the LGL Association argued that if the comments under the photograph of the applicants on Facebook had been only “expressing [the authors’] opinion”, it was totally unclear what could be considered to constitute “publicly ridiculing, expressing contempt, urging hatred or inciting discrimination” within the meaning of Article   170   §   2 of the Criminal Code. That norm of criminal law was destined to become a “dead letter”, which 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”. 20 .     By 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” ( 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 court considered that in making such comments their authors had not been inciting others to discriminate against or hate homosexuals. 21 .     The District Court also pointed out that the first applicant’s Facebook page, 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 who posted in the public sphere ( viešoje erdvėje ) a picture “of two men kissing” should and must have foreseen that such “eccentric behaviour really did not contribute to the social cohesion of those who had different views or to the promotion of tolerance” ( ekscentriškas elgesys tikrai neprisideda prie visuomenėje kitokias pažiūras turinčių asmenų tarpusavio supratimo bei tolerancijos ugdymo ). The owner of a social network profile on which such an image was posted, 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. According to the court, “the majority of Lithuanian society very much appreciate[d] traditional family values” ( itin vertina tradicinės šeimos vertybes ). Indeed, that view was enshrined 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 undertaken on the basis of the free mutual consent of a man and a woman. The District Court also referred to a passage from the Constitutional Court’s ruling of 28   September 2011 (see paragraph   34 below), and from that ruling inferred that “the family, as a constitutional value, is a union between a man and a woman”. Lastly, the court stated that criminal proceedings were an ultima ratio measure and that they should therefore be initiated only when serious grounds and all the elements of a crime existed. This was not the situation in the case at hand. In its view, the decision not to prosecute the authors of the comments had been reasonable. 22 .     The LGL Association lodged an appeal on 29   January 2015. It pleaded that certain comments had been clearly meant to incite violence, thus directly constituting an objective element of a crime under Article 170 §§ 2 and 3 of the Criminal Code. The LGL Association noted that even milder public comments, although concerning racial or ethnic discrimination, had been considered by the Lithuanian courts to constitute a crime. 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 at the time that a procedural decision was taken regarding 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 “traditional family values”, 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 held 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 referred to 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. 23 .     By 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” ( bendraminčiams ), 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 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. 3.     Subsequent developments, as presented by the parties 24.     In their application to the Court the applicants stated that the proceedings before the domestic courts had generated a lot of interest in both the local and international media. As a result, they had experienced an increased level of 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 had been summoned by the dean of the university theology faculty, who had requested him to change his course of study 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 steadily 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. 25.     For their part, the Government referred to a number of educational programmes at the first applicant’s secondary school aimed at raising children’s understanding of such issues as respect, solidarity and non-discrimination. They also could not speculate on the reasons for the second applicant changing his course of study. The Government lastly pointed out that the applicants themselves had never attempted to persuade the domestic authorities to initiate any kind of pre-trial investigation regarding any alleged subsequent discriminatory acts. II.   RELEVANT DOMESTIC LAW AND PRACTICE A.     The Constitution, laws and other legal acts 26 .     The Constitution reads: Article 21 “... Human dignity shall be protected by law. It shall be prohibited to torture or injure a human being, degrade his dignity, subject him to cruel treatment, or to establish such punishments ...” Article 22 “Private life shall be inviolable. ... The law and courts shall protect everyone from arbitrary or unlawful interference with his private and family life, as well as from encroachment upon his honour and dignity.” Article 25 “Everyone shall have the right to have his own convictions and freely express them. No one may be hindered from seeking, receiving, or imparting information and ideas. The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order. The freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation ...” Article 29 “All persons shall be equal before the law, courts, and other State institutions and officials. Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.” Article 38 “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 entered into upon the free mutual consent of a man and a woman ...” Article 43 “... There shall be no State religion in Lithuania.” 27 .     The Civil Code reads: Article 3.7. Concept of marriage “1.     Marriage is a voluntary agreement between a man and a woman to create legal family relations executed in the procedure provided for by law. 2.     A man and a woman who have registered their marriage in the procedure provided for in law shall be deemed to be spouses.” In Lithuania, there is no legislation in force to regulate a partnership between a man and a woman, or between two persons of the same sex. Attempts to pass such legislation have been unsuccessful. In particular, as early as in 2000, the Law on the Approval, Entry into Force and Implementation of the Civil Code provided that the norms of the Civil Code regarding partnership – common life between a man and a woman before entering into marriage – would come into force once the Law on Partnership had been enacted. No such law has been passed to this day. 28.     The old Criminal Code of 1961 provided that sexual intercourse between two men was a criminal act (Article 122). Criminal liability for such conduct was lifted in 1993, Lithuania having regained independence in 1990. 29 .     The Law on Associations at the relevant time read: Article 2. Concept of an association “1.     An association shall be a public legal person of limited civil liability who has its name and whose purpose is to coordinate activities of the association members, to represent interests of the association members and to defend them or to meet other public interests. ...” 30 .     The Criminal Code, at the relevant time, between 2007 and 2017, read: Article 170. Incitement against any national, racial, ethnic, religious or other group of people “... 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 ...” 31 .     Methodological recommendation no.   12.14-40 of 23 December 2009 on the organisation, supervision and specifics of the conduct of the pre-trial investigation with regard to criminal acts that are committed on the grounds of race, nationality, xenophobia, homophobia or other forms of discrimination, issued by the Prosecutor General’s Office to the heads of regional and district prosecutors’ offices and the police, reads as follows: “33.     ... the launch of a pre-trial investigation by the pre-trial investigation bodies and prosecutors’ offices should not be formalistic. A person who has provided information about an alleged criminal act in a non-standard ... way (e.g. orally, by telephone or by other electronic means) should not be requested to lodge a written complaint, if that person evidently does not wish to do so or refuses to do so because he/she does not wish to disclose his/her identity or for other reasons. Information about hate-related incidents (or allegedly committed criminal acts of such a nature) that is provided in such a manner cannot be left without procedural evaluation. ... Information regarding an allegedly committed criminal act should be evaluated as factual grounds for the pre-trial investigation officer or prosecutor while they themselves establish the elements of the criminal act [in question]. ... In the event that an anonymous application (submitted in whatever form) is received, the same procedure indicated in this paragraph is applicable. 34.     [C]riminal acts that are committed on the grounds of racial, national, xenophobic, homophobic [or] religious hatred or on other grounds of a discriminatory nature ... usually attract quite a high degree of public awareness, both within society and in the domestic and foreign media ... [They] [i] can do harm to the international reputation of the State, [ii] can make the [courts] the object of criticism by society and endanger the security of society. Therefore, expeditious and serious reaction on the part of the pre-trial investigation officials or the prosecutors to a written application received ... or any oral or written information submitted in any ... way about criminal acts that are allegedly committed on the grounds of ... homophobia ... or other reasons of a discriminatory nature, and the expeditious, qualified and immediate evaluation of the facts ... by adopting without delay the relevant procedural decisions ... leads to the stabilisation of the situation in society, suppression of anxiety provoked by the public incidents or attacks of an extremist nature in all society or in its most vulnerable members, and prevents the deterioration of the international reputation of the State.” 32 .     The Code of Criminal Procedure, as worded at the relevant time, provided that when elements of a crime were discovered, a prosecutor or the investigating authorities had, within the limits of their authority, to undertake all measures provided by law to institute criminal proceedings in order to establish that a criminal act had been committed and ensure that the guilty parties were punished (Article   3). A prosecutor had to employ all measures available under the law in order to eliminate any violations of laws (Article 24). 33 .     The Law on the Provision of Information to the Public ( Visuomenės informavimo įstatymas ), in so far as relevant, reads: Article 19. Information which should not be made public “1.     It shall be prohibited to make public in the media information that: ... (3)     instigates war or hatred, ridicule, humiliation, ... 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 49. The Inspector of Journalistic Ethics “1.     The Inspector of Journalistic Ethics (hereinafter – the Inspector) is a State official who oversees how the principles of this Law are implemented ...” Article 50. The duties of the Inspector “1.     The Inspector performs the following functions: (1)     examines complaints (applications) [lodged by] persons regarding a violation of their honour and dignity in the media; (2)     examines complaints (applications) [lodged by] persons regarding a violation of their right to private life; ... (8)     on the basis of the conclusions by the groups of experts ... establishes whether information made public in the media incites discord [ skatina nesantaiką ] on the grounds of gender, sexual orientation, race, nationality, language, descent, social status, convictions or views ...” B.     The courts’ practice 1.     The Constitutional Court (a)     Regarding the concept of “family” and the State’s obligation to protect human dignity 34 .     By a ruling of 28   September 2011 in a case regarding the compliance with the Constitution of the Seimas’s Resolution on the approval of the State family policy concept, which related to the question whether only married persons and children born in such a union could be considered to constitute a family, 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 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 such relationships has no essential significance for the constitutional concept of family.” 35 .     More recently, in a ruling of 11   January 2019 in a case concerning the issuance of a temporary residence permit in Lithuania to a foreign national in the context of family reunification, and in response to a request for interpretation lodged by the Supreme Administrative Court regarding the constitutionality of the Law on the Legal Status of Aliens, the Constitutional Court held that a refusal to issue such a permit could not be based solely on the gender identity and/or sexual orientation of a foreign national. As to the State’s obligation to protect human dignity, it held: “29.     ... Under paragraph 2 of Article 21 of the Constitution, human dignity is protected by law; paragraph 3 of the same Article establishes a prohibition, inter alia , on degrading human dignity. When interpreting those constitutional provisions, the Constitutional Court has held that dignity is an inalienable characteristic of a human, being of the greatest social value; every member of society has innate dignity; all people by nature are to be deemed equal in their dignity and rights. Human dignity should be regarded as constituting a special constitutional value. Dignity is characteristic of every human being, irrespective of how he/she assesses himself/herself or other people assess him/her. The Constitution establishes the State’s duty to ensure the protection and defence of human dignity. State institutions and officials have the duty to respect human dignity as a special value ... ... 30.1.     The Constitutional Court has held that private life is the personal life of an individual: his or her way of life, marital status, ... relationships with other people, views, convictions, or habits ..., his/her physical or psychological state, health, honour, dignity, etc. The inviolability of private life, which is enshrined in the Constitution, gives rise to the right of a person to privacy, which includes ... the physical and psychological inviolability of a person, his/her honour and reputation ... The provision of Paragraph 4 of Article 22 of the Constitution is one of the most important guarantees of the inviolability of an individual’s private life: the private life of an individual is protected from unlawful interference by the State, other institutions, their officials, and other persons; this provision enshrines one of the aspects of the family concept confirming the constitutional significance of the family as a protected and fostered constitutional value. If the private life of an individual is interfered with in an arbitrary and unlawful manner, then, at the same time, his/her honour and dignity are encroached upon; the protection of human dignity is inseparable from the protection of the private life of a person. ... 31.2.     The Constitutional Court has held that discrimination is most often understood as a restriction of the rights of an individual on the basis of gender, race, nationality, language, origin, social status, belief, convictions, views, or other characteristics... ... It should be noted that one of the forms of discrimination prohibited under Article   29 of the Constitution is the restriction of the rights of a person on the grounds of his/her gender identity and/or sexual orientation; such a restriction should also be regarded as degrading human dignity. 31.3.     [O]nly ... a State that has respect for the dignity of every human being can be considered to be truly democratic. It should be emphasised that, as noted by the Constitutional Court, the Constitution is an anti-majoritarian act, which protects an individual. In view of this fact, ... it should be noted that, in a democratic state [operating] under the rule of law, the attitudes or stereotypes prevailing over a certain period of time among the majority of members of society may not, on the basis of the constitutionally important objectives, inter alia , ensuring public order ... or public policy, serve as constitutionally justifiable grounds for discriminating against persons solely on the basis of their gender identity and/or sexual orientation [or] for limiting the right, as guaranteed under Paragraphs 1 and 4 of Article 22 of the Constitution, to the protection of private and family life [or] the protection of relationships with other family members. 31.4.     The Constitutional Court has noted on more than one occasion that the constitutional principle of the equality of persons, which is enshrined in Article 29 of the Constitution, should be followed both in passing and applying laws.” 36 .     Regarding the concepts of family and marriage, the Constitutional Court extrapolated: “32.3.     In its ruling of 28 September 2011, the Constitutional Court held that the constitutional concept of the family may not be derived solely from the institution of marriage, as enshrined in Paragraph 3 of Article 38 of the Constitution [see also paragraph 34 above]; ... the duty, stemming from Paragraph 1 of Article 38 of the Constitution, for the State to establish, by means of laws and other legal acts, a legal regulation that would ensure the protection of the family as a constitutional value implies the obligation of the State not only to establish such a legal regulation that, inter alia , would create the preconditions for the proper functioning of families, strengthen family relationships, and defend the rights and legitimate interests of family members, but also to regulate, by means of laws and other legal acts, family relationships in such a way that no preconditions would be created in respect of discrimination against certain participants in family relationships (such as against a man and a woman who live together without having registered their union as a marriage, their children/adopted children, or single parents raising their child/adopted child). 32.4.     In this context, it should be noted that Paragraph 3 of Article 38 of the Constitution enshrines the constitutional concept of marriage concluded by the free mutual consent of a man and a woman. It should be emphasised that a different concept of marriage may not be enshrined under the laws of the Republic of Lithuania unless Paragraph 3 of Article 38 of the Constitution is amended accordingly. The Constitutional Court has noted that marriage is one of the grounds for the constitutional institution of the family for the [purpose of the] creation of family relationships; it is a historically established family model that has undoubtedly been of exceptional value in the life of society and ensures the viability of the nation and the State, as well as their historical survival. 32.5.     ... It should be noted that, unlike the constitutional concept of marriage, the constitutional concep