Beizaras and Levickas v. Lithuania: ILGA-Europe’s work on a landmark European hate speech judgement
On 14 January 2020, the European Court of Human Rights (ECRI) delivered its judgements in the case of Beizaras and Levickas against Lithuania. An analysis of the content of the decision highlights how the ECRI 2016 Report on Lithuania and its 2019 Conclusions on the implementation of the recommendations in respect of Lithuania positively influenced the outcome of the case.
LGBTI people should be and feel safe online. As every other citizen, we should be able to use social media and share online without fearing a backlash. That’s not always the case, which is why many activists continue to fight and to push for legal frameworks that protect all citizens from discrimination. In ILGA-Europe we work towards advancing human rights, one litigation case at a time.
Violation of rights
The landmark case of Beizaras and Levickas v. Lithuania originated after one of the applicants posted a photograph of him kissing his male partner (the second applicant) on his Facebook page, which led to hundreds of online hate comments. The European Court of Human Rights found Lithuania’s failure to investigate online hateful comments against the gay couple to violate their rights to private and family life (Article 8) and to effective remedy (Article 13) as well as being discriminatory on the ground of sexual orientation (Article 14).
The European Commission against Racism and Intolerance (ECRI) is a Council of Europe human rights monitoring body. As part of its mandate it issues recommendations to address the issues of racism and intolerance it identifies in member states. ECRI’s General Policy Recommendation No. 15 (2015) on Combating Hate Speech is of particular importance to the work of ILGA-Europe and its member organisations.
Structure of a court’s judgement
To understand the importance of the ECRI report in the case of Beizaras and Levickas v. Lithuania, it is necessary to understand the structure of a Court’s judgement, which is composed of an assessment of firstly “The Facts” and secondly “The Law”. In the case at stake, the Facts section is sub-divided into:
- The circumstances of the case;
- Relevant domestic law and practice;
- Relevant international materials.
The Law section comprises:
- Alleged violation of article 14 of the Convention, taken in conjunction with Article 8 (A. Admissibility; B. Merits) and
- Alleged violation of Article 13 of the Convention (A. Admissibility; B. Merits).
It is to be noted that ILGA-Europe and partner organisations also referenced the ECRI report in their written submission to the Court. In its judgement, the Court relied on the intervention, especially on the arguments based on the ECRI report.
The Court indicates, before starting the legal assessment of the case, that the Report will be part of the authoritative documents it will rely on to decide on the various conventional violations.
Concretely, the ECRI Report is part of the “III. Relevant international materials” (paras 56-62 of the judgement). In this section of the judgement, the Court extensively quotes relevant parts of the ECRI 2016 Report (paras. 22, 25-29, 31-33, 35-38, 53-59, 90-92 of the Report) and also refers to the 2019 Conclusions on the implementation of the recommendations in respect of Lithuania” (para 62 of the judgement). The difference in length with the other “relevant international materials” referred to is striking.
The Court further refers to the ECRI Report in several parts of the judgement when assessing “The Law,” to decide both on the admissibility and on the merits of the case.
As regard admissibility, the question arose whether the Court was competent to hear the case even though the national complaint was brought by an Association rather than physical persons (the same-sex couple). The Court relied on the ECRI report to establish that the contextual situation explained why the victims, the same-sex couple, were not in a position to submit a complaint at the national level since there were risks of retaliation. The Court hence decided that the complaint was admissible.
The Report is also part of the reasoning of the Court on the merits of the case, and it influences its findings. The Court referred to the ECRI Report both in its analysis of I) the violation of Article 14 of the convention taken in conjunction with article 8 and II) the violation of article 13 of the Convention.
Concerning Articles 14 and 8, the ECRI report highlights that hate speech is a serious issue in Lithuania and that most of it takes place on the Internet. This enables the Court to reject the Government’s argument according to which hate comments on Facebook don’t reach the required threshold of harmfulness and seriousness such as to require its intervention.
The Court considered that the comments constituted a threat to the applicants’ physical and mental integrity, and the lack of requisite protection, due to the discriminatory attitude of the authorities, constituted a breach of Article 14 taken in conjunction with Article 8 of the Convention.
Right to an effective remedy
As regard the Right to an effective remedy (Article 13), the Court first referred to the third-party intervention, specifically to its developments on the ECRI report. The latter concern the condemnation by ECRI of the Lithuanian Supreme Court’s practice of referring to “protection of public morals” to justify or condone incitement of hatred against LGBT people. The Court then relied heavily on the findings of the Report in its own assessment of a breach of Article 13.
The Court noted in particular the ECRI’s observation of a “growing level of intolerance against sexual minorities”; the law-enforcement authorities’ failure to acknowledge bias-motivation of hate crime; the “prejudicial attitude of the domestic court” and the “lack of comprehensive strategic approach to tackle the issue of …homophobic hate speech by the authorities”. This contextual information, together with the authorities’ attitude in the case at stake, led to the conclusion that the applicants were denied an effective domestic remedy in respect of their complaint, which constituted a violation of Article 13.
Breaches of the LGBTI community’s fundamental rights generally take place in a wider context of permanent multidimensional discrimination. This case highlights that up-to-date background information on the situation of the LGBTI community in the Member States of the Council of Europe is crucial to enable a rigorous assessment of applicants’ complaints and to hold States accountable.