CEDH · CASELAW;CLIN;ENG — 14 janvier 2020

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Lithuania - 41288/15 Judgment 14.1.2020 [Section II] Article 35 Article 35-1 Exhaustion of domestic remedies NGO pursuing criminal complaints in the interest of applicants targeted by homophobic comments on Facebook: admissible Article 13 Effective remedy Discriminatory attitudes impacting on the effectiveness of remedies in the application of domestic law: violation Article 14 Discrimination Refusal to prosecute authors of serious homophobic comments on Facebook including undisguised calls for violence, without effective investigation beforehand: violation Facts – The applicants are two young men. In 2014 one of them posted a photograph of the couple kissing on his Facebook page (in “public” mode, without access being restricted to a particular group of “friends”); this was intended to accompany the announcement of their relationship and to trigger a debate on the rights of LGBT persons in Lithuanian society. This online post went viral and received hundreds of virulent homophobic comments (containing, for example, calls to “castrate”, “kill” and “burn” the applicants). At the applicants’ request, an organisation upholding the rights of LGBT people (of which they were members) lodged a complaint with the prosecutor’s office against thirty-one of these comments, asking the prosecution service to open an investigation for incitement to homophobic hatred and violence (Article 170 of the Criminal Code, criminalising incitement to discrimination on the basis – inter alia – of sexual orientation). The prosecutor’s office having refused to open a preliminary investigation, the courts dismissed (in 2015) the association’s appeals against this refusal, on the grounds: –     firstly, that posting this “eccentric” photograph publicly had amounted to provocation on the applicants’ part, contrary to the respect due to the opinions of others, in view of the “traditional family values” prevailing in Lithuania; – and, secondly, that the impugned comments expressed their authors’ unfavourable opinion in terms that were admittedly immoral, obscene or badly chosen, but that nevertheless they did not, on this basis alone, contain the actus reus and mens rea elements of the offence in issue (as these seemed to derive from the Supreme Court’s case-law) in respect of each of their authors, taken individually. Law – Article 14: (a)   Admissibility (exhaustion of domestic remedies) – The applicants explained that they had preferred to ask the association to act on their behalf for fear of retaliation by the authors of the online comments. The association’s complaint and subsequent appeals to protect the applicants’ interests concerned specific incidents which had breached the rights of two of its members: whatever their possible “strategic” aspect for a wider cause, the association’s actions were not therefore an actio popularis . Moreover, the association’s legal standing had never been examined or contested at domestic level. In any event, Lithuanian law required the prosecutor’s office to carry out an investigation following any notification, even where it was submitted anonymously. Lastly, it was the applicants, acting on their own behalf, who had lodged the application before the Strasbourg Court, after the domestic courts had delivered decisions in the case which concerned their interests. Having regard to the seriousness of the allegations in issue, the Court considered that it had to have been open to the association to act as a representative of the applicants’ interests within the domestic criminal proceedings. To find otherwise would amount to preventing serious allegations of a violation of the Convention from being examined at the national level, given that in modern-day societies recourse to collective bodies was one of the accessible means, sometimes the only means, available to citizens whereby they could defend their particular interests effectively (see Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania [GC], 47848/08, 17   July 2014, Information Note 176 , and Gorraiz Lizarraga and Others v. Spain , 62543/00, 27   April 2004, Information Note 63 ). As to the availability of remedies other than through criminal proceedings, this question was intrinsically linked to the merits (see below). (b)   Merits – For the reasons set out below, the Court concluded that the applicants had indeed suffered discrimination on the grounds of their sexual orientation, without good cause, given that: –   the hateful comments by private individuals directed against the applicants and the homosexual community in general were instigated by a bigoted attitude towards that community; –   and the same discriminatory state of mind was subsequently at the core of the authorities’ failure to discharge their positive obligation to investigate in an effective manner. (i)   Applicability – It was clear that the comments on the first applicant’s Facebook page had affected the applicants’ psychological well-being and dignity. Article   14 was therefore applicable under the “private life” aspect of Article   8, having regard also to the level of seriousness of these attacks. (ii)   The allegedly provocative nature of the post – While recognising that the atmosphere in respect of this issue was tense in Lithuania, the Court found that the applicants’ deliberate intention to incite discussion about homosexuality could not be viewed as a threat to cause public unrest. On the contrary, it was through a fair and public debate between persons with different views that social cohesion was promoted. The authorities had emphasised the “eccentric” nature of the applicants’ conduct – and the court of appeal had added that it would have been preferable for the applicants to share their picture only with “like-minded people”, a possibility offered by the Facebook network. In the light of these specific references to the applicants’ sexual orientation, it was clear that one of the reasons for the refusal to open a preliminary investigation lay in disapproval of the fact that they were open about this sexual orientation. With regard to the courts’ additional references to the fact that the majority of Lithuanian society appreciated the values linked to the family in its traditional meaning, and the preservation of those values as the foundation of society, there was no reason to consider that those factors were incompatible with social acceptance of homosexuality, as evidenced by the growing general tendency to view relationships between same-sex couples as falling within the concept of family life (the Lithuanian Constitutional Court had itself ruled to this effect since 2011). There thus seemed to be a prima facie case that the applicants’ homosexual orientation had played a role in the way they were treated by the authorities. In consequence, it was for the Government to demonstrate that the way in which the authorities had assessed the relevant facts, as reported to them, had been acceptable. (iii)   Assessment of the criminal nature of the impugned comments – Without going so far as to hold that any utterance of hate speech must, as such, attract criminal prosecution and sanctions, the Court in the present case could not subscribe to the reasons given by the domestic authorities: –   with regard to the intrinsic content of the impugned comments: the concept of inciting hatred, in particular, did not necessarily entail a call for an act of violence or other criminal acts: insult, holding up to ridicule or slander could be sufficient to tilt the balance against protecting freedom of expression that was exercised in an irresponsible manner. In addition, the Government had failed to respond convincingly to the argument that if the impugned comments were to be considered as not being covered by the criminal law in question, then it was hard to conceive what statements could be; –   with regard to the relevance of the lack of a “systematic” aspect to the attacks: the hateful nature of a comment – let along calls to “kill” the applicants – was, in the Court’s opinion, sufficient to be taken seriously, even if its author had posted only one such remark. Admittedly, the route of criminal sanctions, including against the individuals responsible for the most serious expressions of hatred, inciting others to violence, could be invoked only as an ultima ratio measure; this equally applied to hate speech against the sexual orientation and sexual life of others. That being stated, the present case concerned undisguised calls for an attack on the applicants’ physical and mental integrity. In consequence, protection by the criminal law was required. While the Lithuanian Criminal Code in theory provided for such protection, in practice, however, it had been denied to the applicants as a result of the authorities’ discriminatory attitude, an attitude which was at the core of the failure on the part of those authorities to discharge their positive obligation to investigate in an effective manner whether the impugned comments constituted incitement to hatred and violence. As to whether other remedies were available to the applicants (before the civil courts or administrative authorities), it would have been manifestly unreasonable in this case to require the applicants to exhaust them, and would have had the effect of downplaying the seriousness of the impugned comments. Conclusion : violation (unanimously). Article 13: Considering the nature and substance of the Article-14 violation found above, a separate examination was warranted in respect of whether, on account of discriminatory attitudes which had negatively affected the application of domestic law, the generally effective remedies had proved ineffective in this particular case. On the technical level, as the majority of the impugned comments had been posted by persons using their own personal profiles, it could not be argued that the authorities would have encountered difficulties in identifying their authors, had they wished to do so. Having regard to the general trend in the case-law of the domestic courts, the conclusions reached by international monitoring bodies and the statistical information communicated to it, the Court held that the above question had to be answered in the affirmative. It found, in substance, that: –   the manner in which the prosecutor had seen fit to apply the Supreme Court’s case-law could not be considered as providing for an effective domestic remedy with regard to complaints concerning acts of homophobic discrimination (as the Supreme Court had never had an opportunity to clarify the standards to be applied in hate speech cases of comparable gravity); –     the authorities were doing almost nothing in the face of the growing intolerance towards sexual minorities; in reality, the bodies responsible for applying the law did not recognise prejudice as a motivation in such offences; they had not adopted an approach which took account of the seriousness of the situation; and, in particular, there was no comprehensive approach to tackle the issue of racist and homophobic hate speech. Conclusion : violation (unanimously). Article 41: EUR 5,000 to each of the applicants in respect of non-pecuniary damage. (See also the Factsheet on Homosexuality: criminal aspects , and, more generally, with regard to whether criminal-law measures are necessary in cases of verbal aggression and direct physical threats motivated by discriminatory attitudes, R.B. v.   Hungary , 64602/12, 12   April 2016, Information Note 195 ; Király and Dömötör v.   Hungary , 10851/13, 17   January 2017, Information Note 203 – cases in which the victims were members of the Roma community)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes