CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 janvier 2023

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text-align:justify; padding-left:1.99pt; font-family:Arial } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s5749FA4E { width:31.55pt; display:inline-block } .s5B8EC978 { width:144.43pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }     SECOND SECTION CASE OF VALAITIS v. LITHUANIA (Application no. 39375/19)       JUDGMENT Art 13 • Discontinuation of investigation into homophobic comments on the Internet not disclosing any prejudicial attitude by the authorities taking account of the Court’s case-law • Wide-ranging and multifaceted domestic measures combatting hate speech in response to Court judgment in Beizaras and Levickas   STRASBOURG 17 January 2023   FINAL   17/04/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Valaitis v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Egidijus Kūris,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   39375/19) 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 a Lithuanian national, Mr Jonas Valaitis (“the applicant”), on 16 July 2019; the decision to give notice to the Lithuanian Government (“the Government”) of the complaint concerning the State’s obligation to take positive measures to protect homosexual persons, including the applicant, from hate speech; the parties’ observations; Having deliberated in private on 9 December 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s complaint, under Article   13 of the Convention, that the Lithuanian authorities did not take positive measures to protect homosexual persons, including the applicant, from hate speech. THE FACTS 2.     The applicant was born in 1999 and lives in Klaipėda. He was represented by Ms D. Gumbrevičiūtė-Kuzminskienė, a lawyer practising in Vilnius. 3.     The Government were represented by their Agent, Ms K.   Bubnytė-Širmenė. 4.     The facts of the case may be summarised as follows. 5 .     On 15   January 2018 the applicant published an essay on the Internet portal of a major daily newspaper, lrytas.lt. In it he referred to a finalist of a televised singing competition, G.S., who had publicly come out as homosexual. The text of the essay, as reproduced by the Government in their observations, read as follows: “This text may shock homophobes with weak nervous systems and silly men of Soviet thinking. I recommend you read this article only after consulting with your psychiatrists or not read it at all and run and squeal in the comments section and write that ‘these gays are perverts’, ‘they are sick’, ‘exterminate them’, and, certainly, do not forget to write ‘oh my God, there were no such issues before’. It will make your life easier, but for a short period of time. Such comment-makers seem to be representatives of a potato land somewhere in the middle of Europe who do not know what expression is. They hide under black cloaks and disappear in the crowd. It’s normal here. And exceptional people – is that already abnormal? I recommend to these [people] to hide the shame of their thinking and remain silent. Lithuania is now free. So they can murmur and choke on their saliva in front of their computers before they are taken away by a social worker. People feel entitled to become degraded persons with the Soviet mentality, for whom the whole joy of life is to crush a person who wants to be happy as he is. However, at last it has happened. Yes, they are coming. And there will be more of them. The finalist of ‘The Voice of Lithuania’ [G.S.] has confessed, ‘Yes, I am homosexual’ and then the comments appeared: ‘I don’t understand why he is advertising it’, ‘Maybe it’s an honour for him?’, ‘Why write about such things at all?’ ‘How come he dares to demonstrate this in public?’, ‘What will I tell the children?’, and ‘Mental illness here!’. People have openly and bravely proclaimed on the Internet in such comments that they are bitches of this country, who are not aware of such concepts as ‘love’, ‘respect for self-determination’, and ‘happiness’ in the same way as sometimes their faces are not recognisable after a routine booze in some hole. These comments are published by people who supplement the criminal chronicles – they smash their partners’ heads in with pots and this is the love of their asocial life. ... They are those uneducated scumbags, who usually grew up in villages surrounded by low-intellect boozers, and living somewhere in their own huts and roaming with their village cohorts on weekends, because it is normal for them to express their opinions and feelings in such a way. They use their poor and degraded communication skills to communicate and resolve internal family conflicts. ...” (“ Šis tekstas gali šokiruoti silpnų nervų homofobus ir sovietinio mąstymo atsilupėlius. Rekomenduoju jį skaityti tik pasitarus su savo psichiatrais. Arba neskaityti visai, o bėgti pacypti į komentarų skiltį apie tai, kad „kokie tie gėjai iškrypėliai“, „kokie jie nesveiki“, „utilizuoti tokius“, ir, žinoma, nepamirškite parašyti, kad „o Dieve, Dieve, anksčiau tokių dalykų nebuvo“. Palengvės. Bet tik trumpam. Tokie komentatoriai atrodo tarytum kažkur Europos vidury egzistuojančio bulvių krašto atstovai, kurie nežino, kas yra saviraiška. Jie slepiasi po juodais apsiaustais ir išnyksta minioje. Čia normalu. O išskirtiniai žmonės – tai jau nenormalu? Rekomenduoju šiems slėpti tokią savo mąstymo gėdą ir tylėti. Bet dabar laisva Lietuva. Tad jie gali ūžti ir springti savo seilėmis kiurksodami prie kompiuterių, kol jų dar neatėmė socialinė darbuotoja. Žmonės mano turintys teisę tapti sovietinio mąstymo degradais, kuriems visas gyvenimo džiaugsmas yra sutrypti žmogų, kuris nori būti laimingas būdamas toks, koks yra. Bet pagaliau tai vyksta. Taip, jie ateina. Ir jų ateis vis daugiau. Štai „Lietuvos balso“ finalininkas [G.S.] prisipažino: „Taip, aš esu homoseksualus.“ Ir tada prasidėjo: „Nesuprantu, kam čia skelbtis“, „Gal čia jam garbė?“, „Kodėl apie tokius išvis rašo?“, „Na bet kaip jis drįsta viešai demonstruotis?“, „Ką pasakyti vaikams?“, „Čia psichikos liga!“. Žmonės internete tokiais komentarais atvirai ir drąsiai skelbė, kad yra totalios šios šalies bjaurybės, kurioms net tokios sąvokos kaip „meilė“, „pagarba kito apsisprendimui“, „laimė“ yra tokios nepažįstamos, kaip kartais būna nepažįstami jų veidai po eilinių gertynių kokioje nors landynėje. Šitie komentarai parašyti žmonių, kurie papildo kriminalų kronikas, – tai jie daužo savo sugyventinius puodais per galvą ir tai yra jų asocialaus gyvenimo meilė. <...> Čia tie neišsilavinę dažniausiai kur nors prasigėrusiuose kaimuose su žemo intelekto pijokais augę svolačiai, patys kur nors apsistoję savo susikaltose kamurkėse ir savaitgaliais pasidaužantys su kaimo chebra, nes taip reikšti savo nuomonę ir jausmus jiems yra normalu. Savo menkus ir degradiškus bendravimo įgūdžius jie naudoja bendraudami ir spręsdami šeimos vidaus konfliktus. ... ”) 6 .     As pointed out by the Government, below the applicant’s essay lrytas.lt published the following note: “This is a reader’s essay. The opinion of the editorial board does not necessarily coincide with the statements made therein. This subjective opinion of the author does not necessarily coincide with that of the editorial board: lrytas.lt is not responsible for the reader’s [essay’s] content”. 7 .     The applicant’s essay received numerous comments by different persons. The following are twenty-one of those comments (one of them was posted twice), written by twenty different persons: “Comment no.   1: the author, under the nickname LT BE PEDIKU, commented: “The author of this essay is a fag, fuck, pee on the devil’s head fuck.” ( Gaidys nx autorius site straipsme, Apmizt galva velniui nx ) Comment no.   2, by JIE ATEINA! PYDERASTINES ATMATOS ATEINA!: “They do not multiply, but their number is increasing! They will make your kids perverts too! It will become the norm! Kill a faggot before it’s too late!” ( jie nesidaugina, bet ju daugeja! jie padarys ir jusu vaikus iskrypeliais! tai taps norma! uzmusk pyderasta kol nevelu! ) Comment no.   3, by AUTORIUI: “Is it honourable, in your view, to proclaim oneself a faggot??? Fashion or perversion? Stop promoting faggots; they have always been around and will always be around, but they shouldn’t promote themselves as I don’t publicise the fact that I’m a MAN and not a pervert!!? Just normal. Ah... that’s what the Eurosoyuz [a portmanteau of European Union and Sovetskij Soyuz (Soviet Union in Russian)] has resulted in... awful.” ( Kokia pagal tave .Garbe viesintis pydaru??? Mada ar iskrypeliskumas? Baik reklamuoti pydarus, ju buvo ir bus, bet tegul nesireklamuoja, nes as nesireklamuoja ,kad esu VYRAS ir dar Neiskrypes!!? ‘ Tiesiog normalus .Blyn iki davede tas eurosajuzas .baisu . ) Comment no.   4, by NORMA: “Before admitting to perversion, it was seen that something is wrong with this petty man, because a healthy man won’t allow himself to be put in a skirt. Overall, both in this show and in the ‘X Factor’ show the judges tend to push through degenerates, while pushing aside more talented performers with thousand times better voices. Maybe they are forced to do so by the degenerate producers. But they, like the authors of this article, should be tried for the leading-to-death propaganda (defence of perverts). Or maybe soon there will appear a man’s right to kill or not to kill [a person]. AIDS is also death.” ( Pries iskrypelio prisipazinima matesi, had su zmoguciu kazkas netvarkoj, nes sveiko vyro i sijona neiikisi. Is vise tiek siame, tiek X faktoriaus sou, matosi tendencingas teiseju noras prakisti issigimelius, nustumiant i sail talentingesnius ir tukstanti kartu geresnius balsus turincius atlikejus. Gal but jie yra spaudziami issiqimusiu projuseriu. O tokie, kaip sio straipsnio autoriai, turetu butu teisiami uz mirti nesancia (iskrypelius ginancia) propoqanda. O gal greitai bus laisva zmogaus teise zudyti, ar ne zudyti. Aids yra taip pat mirtis. ) Comment no.   5, by LINAS (this comment was posted twice): “Author, mind your words. You verist mujik . If faggots want to reveal that their asses itch, does it mean we should applaud. A faggot is a faggot. If it is acceptable for you that they suck each other’s shitty knob, then you need treatment. You pervert, don’t thrust your shitty knobby opinion on others. And don’t insult normal people. I work in construction, but I don’t walk around with posters saying that everyone should work on construction sites. So they should fuck each other quietly.” ( Autoriau skaitykis su zodziais.muzike paskutinis.jei piderai nori pasireiksti kad jiems subines niezti tai taip isena mes katutemis turime ploti. pideras ir yra pideras.jei tau normalu kai ciulpia vienas kitani sudma bybi tai tau cia reikia qyditis.iskrypeliau.nekisk savo sudinos bibynuotos nuomonesm kitiems.ir neuzgautiok normaliu zmoniu.as dirbu statybose bet neinu su plakatais kad visi i statybas.tai ir tegu tyliai pisasi tarp saves ) Comment no.   6, by LR: “Wait wait, ‘exceptional’??????? Have you, author, thought how many, for example, teenagers will read your piece of writing or having seen that kipper, will say, ‘I also want to be exceptional and will pound his ass with force... It’s cool’!!!???? Has it become normal to be gay? How many teens do they seduce then terrorise?????? Such perverts should be hounded out from broadcasting. Even if I’m backward-looking, I don’t want to see such perverts, disgusting. What rights... they don’t have any rights... Yuck... Those statements, when I saw them, made me sick.” ( Pala pala “isskirtiniai”??????? Ar jus mastot autoriau kiek tarkim paaugliu paskaitys jusu rasineli ar paziureje ta tipeli sakys o as ir noriu buti isskirtiniu as ir pasibaladosiu i sikyne cia jega!!!???? Jau gejai tspo normalu???? Kiek jie pauqliu suvilioja paskui terorizuoja?????? Vyt is eterio tokius iskrypelius.tegul as busiu atsilikus bet tokiu iskrypeliu matyt nenoriu slykstu .kokios dar mi teises jie isvis teisiu neturi slikstynesfiu kaip pamaciau net supykino nuo tokiu pasisakymu ) Comment no.   7, by ZIAURUS ATVEJIS: ‘Well, yes, let’s thoughtfully look at those gays, who they are – for example, this scenario: two gays adopt a child; the child hears a bed rattling and the so-called parents moaning in the other room, the child tiptoes to the door and looks through the door gap, and sees that one man has climbed onto the other man, has pushed his willy into the other man’s ass and is fucking him? Oh please, perhaps it is more awful than a nuclear, chemical bomb explosion??? And still some are able to defend these gays? A normal person if he is gay – having realised that he is bent – should shut his mouth so that he does not inadvertently reveal himself; this is as if some zoophile was walking along the street with some banner organising a parade and shouting loudly: Freedom to zoophiles! I want to fuck a goat, a pig, a dog, and also some other animal.” ( nu taip normaliai protingai paziurim kas yra tie gejai - pvz. toks variantas du gejai isivaikina vaika, vaikas uzgirsta kitame kambaryje brazkancia lova ir aimanojancius tipo tevus, prieina tyliai ir pro duru tarpa pamato - kaip vienas vyras uzlipes ant kito vyro ikises savo pimpala i kito vyro sikna ji pisa ? nu ir prasau tai turbut ziauriau nei atomines, chemines bombos sprogimas ??? ir dar kazkas sugeba gynti tuos gejus ? normalus zmogus jeigu jisaiyra gejus - jisai suprates kad yra issigimes, turetu uzsimurinti burna, had ne tycia kazkam neissiduotu, cia panasiai kaip koks zoofilas, eitu per gatve su kazkokia veliava padares parada ir garsiai sauktu - laisve zooftlams, as noriu papisti asila, kiaule, suni, ir dar kazkoki gyvuna .) Comment no. 8, by SVEIKAS: “Mankind has to start doing something, and quickly, rescuing the perverted faggots, because the cruel catastrophe of humanity is approaching. Those severely mentally ill no longer understand (owing to their disease) what they are doing and what they are talking about. Maybe it’s better to announce how many of them die each year from lung or other organ failure, without hiding the fact that the death was from AIDS. After all, weak-minded people can naïvely believe, say, the degenerate author of this article that this is normal. If it were normal, those degenerates would not have been exterminated, which also should be done now. It’s necessary to defend young healthy people, because dozens of naïve people can be infected by one degenerate. Why is the Ministry of Health keeping silent and not revealing the truth of homosexuality as a disease? After all, it is not necessary to look at the instructions of the degenerates in the EU leadership. Let us save humanity before it is too late.” ( Zmonija kazka turi pradeti daryti, ir greitai, gelbejant issigimelius pederastus, nes arteja ziauri zmonijos katastrofa.. Tie sunkus psichiniai ligoniai jau nebesupranta (del ligos) ka jie daro ir ka sneka. Gal geriau paskelbti, kiek ju kasmet mirsta nuo plauciu, ar kitu organu nebeveiksnumo, neslepiant, kad mirtis buvo nuo AIDS. 0 juk silpnesnio proto zmoguciai gali naiviai tiketi, kad ir sio straipsnio issigimieliu autoriumi, kad tai normalu. Jei butu buve normalu, tai simtmecius tie isgamos nebutu buve naikinami, ka reiketu daryti ir dabar. Reikia gelbeti jaunus. sveikus zmones nuo mirties, nes nuo vieno issigimelio gali uzsikresti desymtys naivuoliu. Kodel tyli sveikatos apsauges ministerija, neskeldama sios pedrestu ligos esmes. Juk nebutina ziureti i ES vadovybeje esanciu issigimeliu nurodymus. Gelbekime zmonija koi nevelu. ) Comment no. 9, by 22: “Yeah, they should all be caught and disposed of.” ( jo reike visas sugaudyti ir utelizuoti ) Comment no. 10, by NA NA: “An unlucky little faggot. I’m a faggot, give me first place, but faggots are not in power everywhere... Good luck... Bare your breast and lift your skirt...” ( na nepasiseke pideriuku . as piderastas . duokit man pirma vieta ,na ne visas piderastai valdo,,„,,sekmes ..apnuogink krutine ir pasikelk sijona.... ) Comment no. 11, by GENE: “One cannot shake hands with faggots as they are always shitty.” ( Su pederastais negalima sveikintis, nes jie visa laikq buna sudini ) Comment no. 12, by KA TU CIA: “Head of ram, despite your barking, I still can’t stand faggots and that’s it.” ( avino galva, belotum, nu nevirskinu as tq pederasty ir taskas .) Comment no. 13, by TAIP: “You, the writer, are a faggot too, you are abnormal, maybe men who love women are abnormal? Maybe you, a defender and praiser of faggots, want to say that a normal man who loves a woman is abnormal? You shitty asshole.” ( tu rasytojau irgi pydaras, jus nenormalus, ci gal cia vyrai mylintys moteris nenormalus? Tu, piderastu gynejau ir liaupsintojau, nori pasakyti, kad normalus vyras, mylintis moteri yra nenormalus gal? Tu, sudina siknaskyle ) Comment no. 15, by ARTURAS: “I’m HOMOPHOBIC and I’m proud of it, and those others are faggots.” ( As HOMOFOBAS ir tuo didziuojuos, o tie anie- ped eras tai ) Comment no. 16, by VILMA: “Because they are perverts – the answer to the last question in the article.” ( todel.kad jie iskrypeliaim atsakymas ipaskutini straipsnio klausima ) Comment no. 17, by DANA: “Condolences to the parents of Valaitis and Grazvydas that their children are perverts.” ( Uzuojauta Valaicio ir Grazvydo tevams.kad vaikai iskrypeliai .) Comment no. 18, by LIETUVIS: “‘It’s normal. And exceptional people – is it abnormal?’ Since when are flits exceptional people... Mr author should think about whether he is normal or also not of clear direction if he is writing such humbug.” (“Cia normalu. O isskirtiniai zmones - tai jau nenormalu?” Nuo kada gaidziai isskirtiniai zmones..tamsta autorius turetu susimastyti ar normalus dar ar irgi neaiskiu pakraipu jei raso tokias pievas ) Comment no. 19, by AUTORIUI: “Fucking asses and sucking shitty cocks means, to your mind, being exceptional???? If I had my way, I’d send them all through the chimney in Auschwitz...” ( Pistis i sikna ir ciuloti sudinus pimpalus cia pagal tave isskirtinumas??? Mano valia butu visits per kamina Ausvice paleisciau... ) Comment no. 20, by PANKAS: “The more gays and other faggots appear, the more people who cannot stand them will fall [on them]. You should disappear like parasites, silly men, or start serious treatment. Should we name those who have treated themselves for homosexualism? Don’t try to appropriate the image of rock or metal style or sub-cultures, otherwise I’ll boot you out at those parades. What kind of love is through the asshole? I’m not of the Soviet or any out-of-date views, on the contrary, I’m against sovietism and any offscourings like when a man is with a man... I’m not a homophobe, I’m more horrible than that.” ( Kai tik daugiau gejų ir kitokiu homiku rasis tai dar daugiau jų nekenčiančiu užgrius. Išnyksit kaip parazitai tikri atsilupeliai, arba pradedami rimtq gydymq. Gal išvardint asmenis kurie išsigyde nuo homoseksualizmo? Nedryskit savintis neformaliu, roko ar metalo stiliaus ir subkulturų asmenų jvaizdzio kitaip po viena išspardysiu tuose eitynese. Kokia čia dar meilė peršsiknalande? Neesu sovietinių paziurų ar visai senu paziurų as kaip tik pries sovietizma ir visokias atmatas kai vyras su vyru..., as ne homofobas as baisiau uz ji paty. ) Comment no. 21, by ARTE: “Angry guys fucked Grazvydas’s ass.” ( ir atpiso Grazvyda i sikna pikti dedes ) Comment no. 22, by UK: “If I’ve never thought about faggots before – they sort of weren’t there, they didn’t exist for me – now I shall be more attentive and I’ll hit them on the head if I see any. They are becoming aggressive.” ( Jeigu anksciau niekad kazkaip nesusimasciau apie piderastus-ju kaip ir nebuvo, neegzistavo jie man. dabar busiu atidesnis ir kalsiu i galva pamates. Jie jau agresyvus tampa. )” 8 .     As is apparent from the above, several of those comments were directly targeted against the applicant, 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”; and he was urged “not to advertise faggots”; it was also suggested that he “should be prosecuted for propaganda that defended perverts”, and that he should “keep his shitty opinion to himself” and “not offend normal people”. The comments regarding homosexuals were even harsher, including a suggestion that they should be put “through the chimney in Auschwitz”. 9 .     On 17   January 2018 the applicant asked the authorities to start a criminal investigation into incitement to hatred and discrimination under Article   170 §   2 of the Criminal Code (see paragraph   37 below). The applicant referred to the above-mentioned comments as being targeted against persons of homosexual orientation. He also stated that some of the comments (see paragraphs 7-8 above) had also been targeted against the applicant personally and had been demeaning, offensive, and had expressed hatred against the applicant “for the sole reason that he had expressed certain thoughts” ( vien dėl to kad viešai išreiškė tam tikras mintis ). 10 .     In a decision of 25   January 2018, the prosecutor initially refused the request, holding that most of the comments had been one-off comments by a single author, which meant that the “systematic character” – an obligatory element for a comment to constitute a crime under Article   170 §   2 of the Criminal Code – had been lacking. In addition, under Article   25 of the Constitution (see paragraph   36 below), a person had the right to express his or her beliefs. On 5   February 2018 the prosecutor’s decision was upheld on a subsequent appeal by the Klaipėda District Court, which pointed out that criminal liability was an ultima ratio measure and that the statements in the comments constituted the opinion of their authors. Such statements, while improper, had not reached the level of severity required to justify prosecution. On 2   March 2018 the Klaipėda Regional Court, on a subsequent appeal, referred to Article 28 of the Constitution and held that the right to freedom of expression could not breach the rights of others. For the Regional Court, the comments in question had been degrading; they had incited to physical violence against persons of homosexual orientation, and thus could not be seen as mere beliefs or opinions. Accordingly, those comments contained the elements of a crime and the prosecutor’s decision to discontinue the pre-trial investigation under that provision had to be quashed. 11 .     Subsequently, on 8   March 2018 a criminal investigation was opened regarding a possible crime under Article   170 §   2 of the Criminal Code, and the applicant was granted victim status. 12.     On 19   March 2018 the law-enforcement authorities asked the Office of the Inspector of Journalistic Ethics ( Žurnalistų etikos inspektoriaus tarnyba ) for an expert opinion on whether the twenty-one comments in issue incited physical violence and/or expressed hatred towards a group of persons on the basis of their sexual or other orientation or views, and, if so, which concrete phrases. 13 .     On 24   April 2018 the Office of the Inspector of Journalistic Ethics delivered an eighteen-page conclusion no.   EAN-3, in which it examined each of the comments and found that they had been demeaning and offensive towards persons of homosexual orientation. The inspector also stated whether or not each of those comments incited to violence and/or discriminated against that group of persons (see also paragraph 26 below). 14 .     On 1   August 2018 the prosecutor discontinued the pre-trial investigation, noting that one of the authors – S.K. (comment no. 6) – had confessed to having written that comment, but that it had been a one-off and written spontaneously, and, while demeaning, it did not pose a danger to homosexuals’ right to equality or to their dignity. Neither did that comment urge readers to be violent against that group of persons. The prosecutor also referred to the Supreme Court’s practice (case no.   3K-3-144/2011) to the effect that “part of Lithuanian society had rather conservative (negative) view towards sexual minorities” and therefore the topic of sexual minorities was subject to a certain amount of social tension (the prosecutor also referred to the Supreme Administrative Court’s ruling of 23   July 2013 in case no.   A-858-2475-13). Even so, under the practice of the Supreme Court, this general social context and the concrete context of the comment in issue (by S.K.) was not so tense that it would justify in itself stricter limitations on freedom of expression or application of the ultima ratio measure of criminal liability (the prosecutor referred to the Supreme Court’s ruling in case no.   2K-86-648/2016). In addition, the Supreme Court had already held that in a democratic society criminal liability should be understood as the ultima ratio measure, employed to protect legal assets and values ( teisinių gėrių ir vertybių apsauga ), when those goals could not be achieved by more lenient measures (the prosecutor referred to the Supreme Court’s rulings in cases nos.   2K-P-267/2011, 2K-262/2011 and 2K ‑ 677/2012). The prosecutor also noted that another person – A.M. – who was suspected of being the author of comment no.   1, had testified when questioned that she had not written the comment, but that it could have been a member of her household who had been its author. Lastly, regarding the entirety of the other comments, the prosecutor considered that they had been merely their authors’ amoral reaction to the applicant’s essay; however, they had not reached the threshold to be considered a crime. 15 .     The applicant’s appeals against the prosecutor’s decision to discontinue the pre-trial investigation were subsequently dismissed by a higher prosecutor on 28   August 2018 and by the Klaipėda District Court on 20   September 2018. The applicant lodged an appeal with the Klaipėda Regional Court, in which he complained about the prosecutor’s decision not to prosecute in respect of the multiple comments at issue (see paragraph 7 above). 16.     It is not entirely clear but would appear from the decision of 12   October 2020 of the Prosecutor General’s Office (see paragraphs   20-24 below) that by an unappealable ruling of 23   October 2018 the Klaipėda Regional Court ordered a fresh pre-trial investigation in order to establish the identity of the author of comment no. 1. The Klaipėda Regional Court also referred to the Inspector of Journalistic Ethics’ findings that, apart from comments nos.   1 and 6, the other comments neither called for violence against persons of homosexual orientation nor called for discrimination against them; alternatively, the comments had been made from abroad and therefore it had been impossible to establish their authors. 17 .     On 5   December 2018 a prosecutor suspended the pre-trial investigation regarding comment no.   1, holding that after reopening the pre-trial investigation, a certain S.I. had been questioned as a special witness: he had testified that the router at home had had no password, thus anyone could have connected to that router and, as a result, it had been impossible to establish who had posted comment no.   1. It followed that all possible procedural actions had been carried out in order to identify the person who could have committed the crime, but that person could not be located. The applicant was informed of that decision. The suspension decision was upheld by a higher prosecutor on 28   December 2018, who dismissed the applicant’s appeal and also observed that the pre-trial investigation had been reopened only in order to identify the author of comment no.   1. 18 .     By a ruling of 17   January 2019, which was not amenable to appeal, the Klaipėda District Court dismissed the applicant’s appeal, wherein he had reiterated his grievance about the comments’ authors’ impunity. 19 .     On 15   September 2020 the Prosecutor General’s Office received a letter from the Government Agent at the Court regarding the present application (no.   39375/19). 20 .     Having reviewed the material in the pre-trial investigation file regarding the applicant’s case, by a decision of 12   October 2020 the Prosecutor General’s Office noted that it appeared from the prosecutors’ and courts’ decisions in the applicant’s case that the pre-trial investigation had been discontinued owing to several principal aspects: (a) the comments had been one-offs ( pavieniai ) and had therefore not met the systematic-character criterion ( neatitinka sistematiškumo reikalavimo ); (b) the conclusion that the comments had lacked concrete direct or indirect incitement to hatred and discrimination, or incitement to violence or to be physically violent ( kurstymo panaudoti smurtą ar fiziškai susidoroti ) towards a concrete group of persons, which could pose a real danger to the object protected by this criminal-law provision; (c) the opinion that, even though the topic of sexual minorities was pertinent in Lithuania and was subject to a certain amount of social tension linked to, among other things, a certain conservative (negative) point of view of part of society towards sexual minorities, this common social context was not so tense as to justify in itself stricter limitations on freedom of expression and application of the ultima ratio measure of criminal liability (the Supreme Court’s ruling no.   2K-86-648/2016); and (d) the conclusion that the persons who had written the comments had reacted unethically and immorally towards the applicant’s publication ( publikacija ), but that such immoral behaviour did not comprise the elements of the crime provided for under Article   170 §   2 of the Criminal Code. The Prosecutor General’s Office underscored that all the above “principle aspects” ( principiniai aspektai ) had been mentioned in the Supreme Court’s practice (rulings in cases nos.   2K ‑ 677/2012 and 2K-86-648/2016), and that those two Supreme Court rulings had been referred to by the Court in the judgment of Beizaras and Levickas (no. 41288/15, 14 January 2020), in which the Court had expressed its disquiet with such a practice on the part of the Supreme Court. That practice had also led to a finding that the applicants’ right to an effective domestic remedy under Article   13 of the Convention had been breached. 21 .     The Prosecutor General’s Office pointed out Lithuania’s unconditional obligation to execute the Beizaras and Levickas judgment. It then referred to Article   217 §   2 of the Code of Criminal Procedure (see paragraph   38 below): there was no doubt that the Court’s judgment in Beizaras and Levickas had been an “important circumstance” ( svarbi aplinkybė ) for the pre-trial investigation in the applicant’s case, because both cases had been similar, and the questions of fact and law in both cases – the applicant’s and in Beizaras and Levickas – had been analogous. In addition, the violations established by the Court in Beizaras and Levickas had been closely linked to the applicant’s case, which had been the second case under Article   13 of the Convention where an applicant had argued that the State had failed to discharge its positive obligation to protect persons of homosexual orientation from hate speech. Accordingly, even though reopening was an exceptional measure to review decisions which had become final, in the applicant’s case the Court’s judgment was a sufficient ground to hold that “essential circumstances” existed which were important to decide the case fairly and which had not been established when taking the decision to discontinue the pre-trial investigation. 22 .     On the facts, the Prosecutor’s General Office pointed out that the Internet Protocol (IP) addresses of several commentators had been located abroad and that it had been necessary to establish them in order to bring those persons to justice. It referred to paragraphs 94 to 98 of the Methodological Recommendations which contained the criteria on the basis of which a European Investigation Order could be issued (see paragraph   42 below). In addition, it was necessary to establish whether the comments contained the elements of a crime under Article   170 §   2 of the Criminal Code and when assessing those comments, it was necessary to take into account not only the Court’s judgment in Beizaras and Levickas , but also criteria set out in the Recommendation, in particular in paragraphs   74 to 80. Attention had to be drawn to the Court’s finding that attacks against sexual minorities in Lithuania had reached the required level of gravity for criminal liability to apply in respect of them ( Beizaras and Levickas , cited above, §§   59-66). It was also relevant that, when assessing the question of co-conspiracy ( vertinant klausimą dėl bendrininkavimo ), the argument used by the lower prosecutor – that conspiracy was not possible when some of the authors live abroad – had been clearly insufficient. In the applicant’s case, the prosecutors had not scrutinised whether those who had written the comments in question had done so because of other comments previously posted by other persons, or whether they were their own statements after reading the applicant’s essay. Attention had also not been paid to the question whether any concrete comment had received support (“likes”), which would show the comment’s popularity. All those issues had to be examined when performing the pre-trial investigation, and it was indispensable to scrutinise each comment separately (its content, the author’s intentions) and also the comments in their entirety in context, in order to ascertain whether they were one-offs or comments of persons acting together and approving each other’s actions and attitudes and seeking identical goals. 23 .     Lastly, the Prosecutor General’s Office referred to the Court’s decision in Lilliendahl v. Iceland ((dec.), no.   29297/18, §§   39 and 44-48, 12   May 2020) in which the Court had shared the Icelandic Supreme Court’s view that the applicant’s comments, which had been made publicly, had been “serious, severely hurtful and prejudicial”, and that their prejudicial content had by no means been necessary for the applicant to engage in the ongoing public discussion. Likewise, the Court had noted that a fine, upon conviction, in the circumstances had not been excessive. The Court had underscored that the most serious form of “hate speech”, by its very nature, fell outside the scope of protection of Article   10 of the Convention by virtue of Article   17. 24 .     In the light of the above considerations, and referring to Article 46 of the Convention, the Court’s judgment in Beizaras and Levickas , Article   217 §   2 of the Code of Criminal Procedure, Article   4 §   2 of the Law on Prosecutor’s Office (see paragraph   39 below), the Prosecutor General’s Office decided to reopen the pre-trial investigation so that essential circumstances, having an impact on the fair resolution of the applicant’s case, could be established. The applicant was informed about this decision. 25 .     On 16 November 2020 a Klaipėda district prosecutor discontinued the pre-trial investigation in respect of S.K., the author of comment no.   6, on the basis that she had confessed and cooperated with the authorities regarding the comment. By a final decision of 23   December 2020, the Klaipėda Regional Court rejected the applicant’s subsequent appeal. 26 .     On 17   November 2020 the Klaipėda district prosecutor discontinued the pre-trial investigation in respect of fifteen other comments, holding that, as established by the Inspector of Journalistic Ethics (see paragraph   13 above), those comments had not incited violence against homosexual persons as a group or discriminate against them. For the prosecutor, the mere use of obscene words in any comment, without direct statements inciting hatred or discrimination, could not be considered a crime. Such statements, despite being “improper” ( nekorektiški ), in their form or level of danger they posed did not attain the level required to make them a crime. 27 .     On 28   November 2020 the Klaipėda regional prosecutor granted the applicant’s subsequent appeal and quashed the above decision. The higher prosecutor pointed out that the district prosecutor, when holding that the comments in issue had been improper but could not incite readers to violence against a certain group of persons, without explicitly referring to the Supreme Court’s practice, had essentially relied on the Supreme Court’s rulings in cases nos. 2K ‑ 677/2012 and 2K-86-648/2016. That practice of the Supreme Court had been formed prior to the Court’s judgment in Beizaras and   Levickas . On that basis, and also pointing to other aspects where the need for improvement on the part of the State authorities when responding to hate crimes had been pointed out by the Court, the regional prosecutor held that the pre-trial investigation had to be reopened in respect of fifteen authors of the comments in question. The prosecutor also referred to Articles 13 and 46 of the Convention: Lithuania was under the obligation to take individual and general measures to rectify the situation which had led to the finding of a violation of the Convention in Beizaras and Levickas . 28.     The authorities then continued the pre-trial investigation regarding the comments in issue. 29.     On 4   March 2021 a Klaipėda district prosecutor discontinued the pre-trial investigation in respect of S.I., who had been questioned as a suspect in connection with comment no.   1: S.I. denied having written it, and there was no irrefutable evidence to prove otherwise. A conviction could not be based on mere suppositions. 30.     According to the Government, on 4   March 2021 the Kaunas district prosecutor’s office suspended the pre-trial investigation regarding comments nos. 7, 10, 12 and 18. The persons whose IP addresses were linked to those comments had been located in Lithuania. They were questioned but testified that their Wi-Fi Internet networks had not been password protected, thus it was not possible to hold that those persons had made the four comments. In their most recent observations of 27   September 2021, the Government noted that the applicant had not complained about the decision of 4   March 2021 of the Kaunas district prosecutor’s office to suspend the pre-trial investigation into those comments, and that decision by the district prosecutor had become final. 31 .     Similarly, on 17   March 2021 a Klaipėda regional prosecutor discontinued the criminal investigation in respect of and conditionally released from criminal liability ( pagal laidavimą ) D.V., who had written comment no.   16. She had fully confessed and regretted her actions, which were a one-off; she had also been of pension age and the applicant had not lodged a civil claim. That decision was approved by the Klaipėda District Court on 19   March 2021; the applicant was informed of that fact and of his right to appeal. 32 .     As summarised by the Government in their observations of 10   May 2021, on 5   March 2021 a Klaipėda district prosecutor suspended the pre-trial investigation with regard to a number of the comments in issue, holding that all possible measures to identify the persons who could have committed a criminal act had been carried out. The comments had been made from IP addresses in Germany, Canada, the United Kingdom, Sweden, Ireland, Norway, Denmark and the United States of America; the real IP addresses had also sometimes been changed to other IP addresses by using VPNs. The prosecutor also noted that in those countries information about IP addresses was stored for a limited time, such as for one year in Denmark, Ireland and the United Kingdom, for six months in Canada, and for twenty-one days in Norway. The prosecutor noted that the pre-trial investigation was suspended until such a time as there no longer existed grounds for suspension. Regarding comment no.   15, the prosecutor noted that on 3   November 2020 the pre-trial investigation had been discontinued, because the comment lacked the elements of a crime. Regarding comment no. 20, the prosecutor noted that it had been made from the IP address of a certain V.P., who had been questioned as a special witness, but it had been impossible to establish who had made it. 33 .     The applicant lodged a complaint against the district prosecutor’s decision, but on 22   March 2021 the Klaipėda regional prosecutor’s office, having familiarised itself with the material in the pre-trial investigation file and the applicant’s arguments, upheld the decision to suspend part of the pre-trial investigation, holding that all the necessary acts had been conducted to identify the guilty persons. Some of the comments in issue had been made in foreign States which stored data about IP addresses for a short period of time and thus there was no longer the possibility to establish to whom they belonged, even using the legal assistance agreements in place with regard to those States. Some other comments had been made using special programs to disguise the actual IP addresses. The regional prosecutor, addressing the applicant’s complaint regarding comment no.   5, established that that comment had been made from an IP   address belonging to a company, which, although it had cooperated with the prosecutor, could not provide any useful information in order to ascertain to whom the IP address belonged. The regional prosecutor noted that under the domestic law of Lithuania, data about a subscriber or registered user of electronic communications services could be stored for a maximum period of six months from the date of the connection (whereas the comments in issue had been made on 15   January 2018): there was therefore no possibility to receive additional data from that company about the IP address in question. The regional prosecutor noted that her decision could be appealed against to the Klaipėda District Court. The applicant was sent a copy of the decision on 22   March 2021. The Government submitted that the applicant had not lodged a complaint against the regional prosecutor’s decision, which had thus become final. 34 .     As regards comment no. 1, by a final decision of 26   May 2021 the Klaipėda Regional Court allowed the applicant’s complaint about the hasty discontinuation of the pre-trial investigation with regard to S.I. and remitted the case to the Klaipėda district prosecutor’s office for further investigation. It had been necessary to inspect S.I.’s electronic devices (for example, mobile phones, computers) in order to find out whether S.I. had posted that comment. Subsequently, during the search of 16   June 2021, S.I. voluntarily handed in to the authorities the relevant devices (mobile phones, tablets and computers), but after inspection, no information relevant for the pre-trial investigation was found. S.I. was questioned and testified that, while he tended n