CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 février 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .s25D5DE94 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s1DE04B9 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } Published on 26 February 2024   SECOND SECTION Application no. 9195/23 Lukas SVIRPLYS and Raimedas LATVYS against Lithuania lodged on 15 February 2023 communicated on 7 February 2024 SUBJECT MATTER OF THE CASE The application concerns the authorities’ refusal to open a pre-trial investigation into an alleged homophobic verbal assault against the applicants. Mr Svirplys (“the first applicant”) and Mr Latvys (“the second applicant”) are openly gay and are in a relationship. On 10 June 2022 the first applicant lodged a complaint with the police, in which he submitted that on 9   June 2022 he and the second applicant had been verbally assaulted near their home in Vilnius by a man unknown to them. In particular, at around 1.30 p.m., when the applicants had been on their way home, the man had started following them and filming them with his mobile phone. He had called them “faggots” ( pydarai ) and uttered other slurs, accused them of acting contrary to Lithuanian law and threatened that if he saw them again, “it would not end well”. When the applicants had entered their apartment building, for some time the man had not allowed them to close the door of the building and continued insulting them, before eventually leaving. The incident had caused the applicants considerable emotional distress and feelings of humiliation and insecurity. They believed that the man lived in the apartment building next to theirs because they had seen him park his car there on the following day. When later questioned by the police, the applicants stated that the man had also told them that he would break their legs if he ever saw them holding hands again. The Vilnius police conducted a preliminary inquiry in order to determine whether there were grounds to open a pre-trial investigation, inter alia , under Article 145 (threatening to kill or seriously injure another person) or Article   169 (discrimination) of the Criminal Code. The alleged perpetrator was identified as L.R. He was questioned by the police and stated that on the day in question he had seen the applicants holding hands, which he considered as attracting attention and disrespectful to society. He had pretended to film them and asked them whether it was appropriate to flaunt their relationship in public, in view of the fact that same ‑ sex civil unions were not allowed under the Lithuanian law. L.R. further stated that he had not intended to insult or frighten the applicants and that he “had nothing against homosexual people” but that in public everybody had to behave in a way so as not to disturb or disrespect others. On 10   August 2022 the police refused to open a pre-trial investigation and that decision was subsequently upheld by the prosecutor, the Vilnius District Court and the Vilnius Regional Court (the final decision was taken on 19   October 2022). In those decisions it was stated, inter alia , that although the language used by L.R. had been offensive and threatening, there were no grounds to believe that his threats against the applicants had been realistic, as he had not carried out any violent actions and the incident had been a one-time occurrence. Moreover, his words had been addressed to the applicants directly and there was no indication that anyone else had heard them, thus, they could not be regarded as incitement to hatred on discriminatory grounds; he himself had stated that he had not intended to insult the applicants and that he had nothing against homosexual people. Accordingly, L.R.’s actions could be characterised as “unethical” but they had not been so dangerous as to warrant criminal liability under either Article   145 or Article 169 of the Criminal Code. The applicants complain under Article 8 of the Convention read in conjunction with Article   14 that they were insulted and threatened because of their sexual orientation and that the authorities refused to open a pre-trial investigation. They submit that the verbal assault caused them considerable distress which was further exacerbated by the authorities’ failure to carry out an effective investigation. They contend that effective deterrence against hate speech on the grounds of sexual orientation requires efficient criminal-law provisions, effective investigation and adequate punishments. The applicants also complain under Article 13 of the Convention that, despite the fact that Lithuanian law provides for criminal liability for hate speech on grounds of sexual orientation, that provision was not effective in practice in their case because the officials lacked competence to recognise the element of discrimination in the perpetrator’s actions and failed to properly characterise those actions under the law.     QUESTIONS TO THE PARTIES 1.     Did the alleged verbal assault against the applicants attain the level of seriousness required in order to fall within the ambit of Article 8 of the Convention, thereby making Article 14 of the Convention applicable (see, mutatis mutandis , Beizaras and Levickas v. Lithuania , no. 41288/15, §§   109 and 117, 14 January 2020, and Association ACCEPT and Others v.   Romania , no.   19237/16, §§ 62-68, 1 June 2021)?   2.     Did the domestic authorities fulfil their positive obligations under Article 8 of the Convention read in conjunction with Article 14 and/or did the applicants have an effective remedy with respect to their complaint under those provisions, as required under Article 13 of the Convention? In particular:   (a)     Did the domestic legal framework and its application in practice afford the applicants adequate protection against the alleged verbal assault motivated by homophobic prejudice (see, mutatis mutandis , Söderman v.   Sweden [GC], no. 5786/08, § 80, ECHR 2013, and Stoyanova v. Bulgaria , no.   56070/18, §   73, 14 June 2022)? The Court refers, in particular, to the decisions reached by the domestic authorities that the perpetrator’s actions did not attain the level of dangerousness to warrant criminal liability under Article 145 or Article 169 of the Criminal Code.   (b)     Did the authorities take all reasonable steps to unmask the possible homophobic motive behind the alleged verbal assault and did they adequately assess its seriousness (see, mutatis mutandis , Identoba and Others v. Georgia , no. 73235/12, § 77, 12   May 2015; Beizaras and Levickas , cited above, §§ 111 and 125-26; and Association ACCEPT and Others , cited above, §§   114 and   119)?   (c)     Did the authorities display any prejudicial attitudes with regard to the applicants on the grounds of their sexual orientation (see Beizaras and Levickas , cited above, §§   151-56, and Valaitis v. Lithuania , no.   39375/19, §§   114-15, 17   January 2023)?