An analysis of the European Court of Human Rights (ECHR) judgement of 14 January 2020 in the case of Beizaras and Levickas v. Lithuania

Factual circumstances

The case of Beizaras and Levickas v. Lithuania concerns a homosexual couple, two activists of a Lithuanian LGBT non-governmental organisation called Lietuvos Gėjų Lyga (LGL Association), who had posted a photograph on Facebook depicting their romantic kiss. Their picture received 800 comments, 31 of which contained aggressive and vulgar remarks addressing both men, such as: "If I was allowed to, I would shoot every single one of them”, “Burn in hell”, “Into the gas chamber with the pair of them”, “You should be exterminated”, “I’ll buy you a free honeymoon trip to the crematorium”, and “It’s not only the Jews that Hitler should have burned”. In the name of the couple, LGL Association reported a crime of incitement to violence and hate to the Prosecutor General's Office. The Prosecutor's Office took the decision not to initiate the investigation, claiming that although the behaviour of the authors of the comments was immoral, it was not of a criminal nature, given that the Internet users solely expressed their opinion about homosexual people with no intention of inciting violence or hatred. The decision of the Prosecutor's Office was upheld by the courts, which emphasised that the homosexual couple deliberately posted their photo as public, addressing it not only to their like-minded friends, but to the entire Facebook community. In the opinion of the courts, such an action could therefore be interpreted as constituting “an attempt to deliberately tease or shock individuals with different views”. As both men subsequently admitted, the goal of making their photo public and disseminating it was to “provoke a discussion on gay rights in Lithuania”.

Judgement of the European Court of Human Rights

The European Court of Human Rights in Strasbourg, to which the complaint was lodged by both men, did not share the position of the Lithuanian courts. The Court found it clear that comments on Facebook page affected the applicants’ “psychological well-being and dignity” (§117). The Court also noted that the quoted comments under the posted picture cannot be considered only as unethical, since some of them directly called for violence (§125, 152–154).

In the course of this case, the Court made several comments of a general nature. The Court stated that exercising the right to free speech in an “irresponsible manner”, as exemplified by the “homophobic hate speech”, may require the state to pursue specific, positive actions for the criticised social group (§125). In the assessment of the Court, hate speech is not only incitement to violence, but also an expression of a broadly understood “hate” consisting in an “attack on the mental integrity” of other people – the most serious forms of such conceived hate speech require protection by the criminal law (§128). In this case, the state failed to fulfil the obligation of protecting the “mental integrity” of the complainants against hateful comments on account of the “discriminatory state of mind” of the relevant public authorities responsible for carrying out the investigation (§129).

For these reasons, the Court found that the complainants’ rights to respect for their private life, and the right to non-discrimination have been infringed (Article 8 and Article 14 of the Convention).

Commentary:

1. The sole recognition of infringement of the complainants’ rights to the protection of their private life in principle does not raise doubts. The right to privacy in the case law of the ECHR of Strasbourg, due to the lack in the European Convention of Human Rights of an equivalent of the right to the protection of health and the right to personal inviolability, was for a long time widely interpreted not only as the entitlement to autonomy of information in the scope of human privacy and intimacy, but also as the integrity of physical and psychological human rights, which involves a positive obligation of the state to defend individuals against unlawful acts of violence on the part of third parties^[1]. In the present case, it was indisputable that the applicants were recipients of comments wishing them death, and the prosecutor refused to take any remedial steps. The state has failed to fulfil the obligation to defend the applicants from the threat of acts of violence.

2. However, the justification of the decision of the Court must be assessed critically. The complaint deserved to be taken into account because Lithuania refused the legal protection of two men against clear threats of violence, who should be protected in the same way as all other citizens and not because – as it follows from justification of the ruling – that their “mental well-being” has suffered in connection with being homosexual. It is clear that the public debate on socially important topics involves the disturbance of the mental well-being of some of the people, usually without presenting any risks to their life and health. This is, however, not a reason to prohibit such debates. On the contrary, the freedom of expression, enshrined in Article 10 of the European Convention on Human Rights, should as a rule also protect expressions causing emotional discomfort to adversaries.

3. It should be stressed that beyond any doubt, expressions inciting violence against any person do not benefit from protection of the right under the freedom of expression and should be subject to strict sanctions. Expressions inciting violence, containing punishable threats, promoting totalitarian ideologies were always – and rightly – recognised in the case law of the Court in Strasbourg as an abuse of the right to freedom of expression^[2]. Sometimes, such statements are referred to as so-called hate speech.

4. Hate speech is not a legal concept, but is a product of international juridical science and case law. In international law, the concept of hatred exists, which appeared for the first time in the International Covenant on Civil and Political Rights of 1966 (ICCPR). The prohibition of propaganda for war was formulated in Article 20 of the ICCPR (paragraph 1), as well as the prohibition of any advocacy of national, racial or religious hatred that constitutes an incitement to discrimination, hostility or violence (paragraph 2). The purpose of introducing legal solutions, which would sanction extreme and hateful attitudes towards specific social groups, was to prevent the repetition of crimes led by German Nazism, whose ideological foundation was based, inter alia, on hatred towards other national, racial and ethnic groups^[3]. The second prohibition was introduced at the initiative of the Union of Soviet Socialist Republics which, in its first proposal submitted in 1947, called for the criminalisation of any act “promoting any hostility, hatred or contempt” and all acts of “privilege or discrimination” of a national, racial or religious character^[4]. In the course of the debate, a representative of Great Britain pointed out that this proposal does not provide for the protection of an individual against discrimination based on political views. In response to this allegation, a representative of the USSR replied that proclaiming “political views supporting racial or national hatred and actions resulting from this hatred” should be deprived of legal protection. When a representative of Chile asked whether this means that the Soviet Union advocates the persecution of an individual because of their political views, the representative of the USSR refused to reply, indicating that this question is not related to the subject of discussion. The first proposition to introduce a prohibition of the spread of hatred was then rejected^[5]. The discussion over the postulate of the USSR was revisited in the subsequent years thanks to the countries cooperating with the Soviets, which were making analogous proposals. In the 1950s, the majority of countries participating in the work on the draft of the Pact rejected the successive versions of the prohibition of incitement to hatred, because of the ambiguity of this term and a concern that it will be used to restrict freedom of expression^[6]. In 1961, a representative of the United States explained that such a solution “opens the door to abuses”, and its entry into force “could be used by the governments of totalitarian countries to impose restrictions on freedom of expression and freedom of the press.” In fact, “any criticism addressed to public or religious authorities can easily be treated as an “incitement to hatred”^[7]. Similar doubts were shared e.g. by a representative of Japan, indicating the difficulty to define the concept of hatred: “each government could refer to such provisions [formulating a prohibition of incitement to hatred] to justify authoritarian control over all forms of expression, and suppress any unfavourable views, under the pretext of the fight against any incitement to hatred and violence”^[8].

Despite these doubts, an entry to art. 20(2) of the Pact was finally passed, which prohibited “encouraging in any way national, racial or religious hatred, which constitutes incitement to discrimination, hostility or rape”, without imposing on the countries an obligation to penalise the so-called hate speech. The prohibition of incitement to hatred was adopted by a majority of 50 to 18 votes, mainly with the support of the Soviet bloc countries and the countries of an authoritarian regime (including, among others, the Soviet Union, Albania, Hungary, Poland, Belarus, Ukraine, Yugoslavia, Czechoslovakia, Afghanistan, Saudi Arabia, and the United Arab Emirates), with the opposition of democratic countries of the western block (including, among others, the United States, Canada, the United Kingdom, Norway, Sweden, Denmark, Belgium, and the Netherlands)^[9]. Taking into account the historical context of the emergence of Article 20(2) of the ICCPR, the concept of a prohibition of incitement to hatred of a race, national or religious character must be interpreted strictly as actions having as an objective to provoke violence in a closer or further perspective. Therefore, the concept of so-called hate speech should be interpreted more conservatively, as its prohibition was not expressed in any common international legal act. The authors of the Pact have rightly noticed threats in too broad a meaning of “hate” to the fundamental values in Democratic reality, which is the freedom of expression.

5. According to a classic definition, so-called hate speech is public statements encouraging violence against persons or groups of persons due to a specific personal feature, such as race, religion, or gender^[10]. In recent years, this concept has gradually expanded - in many countries and also in the case law of international institutions (such as the Secretary General of the United Nations^[11], the European Parliament^[12], the Parliamentary Assembly of the Council of Europe^[13], and the European Commission against Racism and Intolerance), hate speech is not only an expression inciting violence and containing punishable threats, but any kind of expression that could cause psychological discomfort of a person criticised for reasons of a specific personal feature - e.g. sexual orientation. At the same time, it is more and more often postulated to penalise expressions constituting hate speech in a broad sense. The European Court of Human Rights in the case of Beizaras and Levickas headed in a similar direction.

6. It is one thing to penalise statements posing a threat to the life and health of other persons, while it is quite another to make people criminally liable for statements criticising the lifestyle of others. In the first case, the criminal law protects the highest values (the right to life and the right to respect for physical integrity), in the second case, it protects the values situated lower in the hierarchy of legal interests: the good name, privacy, and well-being of persons being subject to criticism.

7. The extension of the definition of hate speech and the progressive range of criminal penalties results in a severe limitation of freedom of expression, which – according to the golden rule expressed in the judgement of the European Court of Human Rights in the famous case of Handyside, cited also in the contemporary case law^[14] – includes not only the right to present information and express views that are being received favourably, considered as inoffensive and neutral, but also the right to expression that is offensive, outrages or introduces anxiety in a state or in a part of society.

8. In its essence, freedom of expression also entails criticising behaviours of specific social groups, which include people sexually attracted to persons of the same sex. It should be noted that there is an important difference between criticising someone's belonging to a particular race, nation, or gender and someone's sexual preferences (so-called sexual orientation). Insofar as belonging to a particular race, nation, or gender is completely independent of human will, sexual preferences are a matter of free choice, which is often said by homosexual people^[15]. If a given man prefers sexual contacts with people of the same sex and gladly manifests this preference to the public (e.g. on Facebook), he should realise that he will face the criticism of people who consider this type of behaviour to be immoral. The freedom of expression in this case involves religious freedom, since the three great monotheistic religions practised by the majority of the world population – Christianity, Judaism and Islam – recognise homosexual behaviour as morally ignoble. We may of course not agree with such beliefs, but we cannot strictly prohibit their proclamation. As LGBT persons have the right to present homosexuality as a completely natural tendency deserving approval and respect, Christians, Jews, Muslims and others should also have the possibility to recognise homosexuality as a deviation, and homosexual behaviours as immoral. Of course, the freedom to criticise unconventional sexual preferences is not unlimited – at the moment, when the criticism begins to be accompanied by punishable threats or incitement to violence against LGBT persons, the state should present a strong response in the form of penal sanction. This applies to all social groups, not only LGBT – each human should be protected by the state against unlawful acts of violence or acts inciting violence against him or her.

9. Therefore, the judgement of the European Court of Human Rights in the case of Beizaras and Levickas v. Lithuania deserves to be criticised because it uses an extreme case of making punishable threats addressed to other people as a pretext to formulate a postulate of prosecuting by the state of all critical expressions toward homosexual lifestyle, causing psychological discomfort of LGBT people.

Author: Paweł M. Łukaszewski