Sunday, 16 July 2017

Protection from "hate speech" - Beizaras and Levickas v Lithuania

The Fourth Section of the European Court of Human Rights has communicated the case of Beizaras and Levickas v Lithuania. The case concerns the alleged failure of domestic authorities to adequately investigate incitement to hatred and violence against LGBT people in general and against the applicants in particular.

The applicants, Pijus Beizaras and Mingirdas Levickas, are a same-sex couple. At the start of their relationship, Mr Beizaras posted a picture on his Facebook profile of him kissing Mr Levickas. The picture was accessible to the general public. The picture was widely viewed and attracted many comments which, Mr Beizaras and Mr Levickas claim, were aimed at inciting hatred and violence against LGBT people in general and threatening them personally. 

Examples of the comments are: 
“Faggots should be burned (Sudeginti piderastus)”  
“You both should be thrown into the gas chambers (I duju kameras abu)” 
"You are fucking gays – you should be exterminated (Gėjai jūs supisti, jus naikinti nx.)”  
“... faggots... such should be hit into the head (... pydarasai... Pisti y galva tokiems reikia)” 
“You faggots should not post such photographs; such faggots should be given a good kicking (Pydarai jūs nekelkit fotkes tokias, suspardyt tokius pidarastus)”  
“Kill them! (Žudyt!)”
The domestic authorities would not undertake a criminal investigation of the comments, despite the Lithuanian Criminal Code prohibiting “Incitement against Any National, Racial, Ethnic, Religious or Other Group of People”. This decision was upheld by the domestic courts, who regarded Mr Beizaras and Mr Levickas to have engaged in “eccentric behaviour”.

The Court has issued the following questions to the parties:

  1. Has there been a violation of Article 14 of the Convention, taken in conjunction with Article 8 thereof, on account of the domestic authorities’ decision to discontinue the criminal investigation concerning the comments on the first applicant’s Facebook social network page (see Vejdeland v. Sweden, no. 1813/07, § 55, 9 February 2012; also see, mutatis mutandisIdentoba and Others v. Georgia, no. 73235/12, §§ 70 and 71, 12 May 2015, and R.B. v. Hungary, no. 64602/12, §§ 39 and 40, 12 April 2016)?
  2. Have the applicants suffered discrimination on the grounds of their sexual orientation, in breach of Article 14 of the Convention, taken in conjunction with Articles 8 and 13? The Court refers to the applicants’ grievance about the Lithuanian authorities’ predisposed bias against a homosexual minority (see, mutatis mutandisSmith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 121, ECHR 1999‑VI; also see Identoba and Others, cited above, § 68), given that the two applicants’ same-sex kiss picture had been interpreted by those authorities as “eccentric behaviour” and as “attempt to deliberately tease or shock individuals with different views or to encourage the posting of negative comments” which, in turn, also led those authorities to discontinue the criminal investigation.


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