FIRST SECTION

DECISION

Application no. 45305/16 Andrea GIULIANO against Hungary

The European Court of Human Rights (First Section), sitting on 6 July 2021 as a Committee composed of:

Alena Poláčková, President, Péter Paczolay, Gilberto Felici, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to the above application lodged on 26 July 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the fact that the Italian Government did not express the wish to intervene in the present case (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court);

Having regard to the comments submitted by the non-governmental organisation Article 19, which was granted leave to intervene by the President of the Section;

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Andrea Giuliano, is an Italian national, who was born in 1981 and lives in Torino. He was represented before the Court by Mr T. Hüttl, a lawyer practising in Budapest.

2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice.

The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant is a LGBTQI-rights activist. On 5 July 2014 he participated in the Budapest Pride Parade, promoting the visibility and rights of the LGBTQI community. He wore a priest’s costume and carried symbols that could be associated with certain far right-wing movements in Hungary. The symbols had been modified with obscene and provocative messages. The applicant’s performance received coverage on television and on Internet news portals.

5. On 7 July 2014 kuruc.info, an Internet portal known for its far-right stance, published an article about the applicant under the title “The provocateur insulting religion and nation is a piece of faggot rubbish imported from Italy”. The article included a reference to the applicant’s Facebook profile and published his photograph, home address and place of employment, calling on readers to “inform” the applicant’s employer about this “inappropriate behaviour”. A similar article appeared on another right-wing portal, deres.tv , calling the applicant “the biggest maggot of the faggot march”.

6. Following the publication of the two articles the applicant received numerous messages on his Facebook profile from users who for the most part appeared to be registered with their names and photographs. The messages, insulting in nature, called the applicant a “dirty faggot” and a “monkey”. Some messages contained threats, saying for instance that the applicant would “croak”, would be “hanged in front of his home”, would be “slaughtered” and that the author hoped that “Jesus [would] cut [the applicant’s] throat”.

7. On 7 July 2014 the applicant lodged a criminal complaint against persons unknown with the Budapest VIth and VIIth district police department, which was recorded as a libel complaint by the police officer. The applicant maintained that his personal data (home and workplace address) had been published on two Internet portals, that a photograph had been taken of him leaving his house and had likewise been published, and that he had received phone calls at his workplace and threatening messages on his Facebook profile. To substantiate the claim that the conduct in question also constituted harassment, the applicant’s lawyer submitted further evidence, screenshots of the applicant’s Facebook profile containing the hateful comments with the photograph, and the registered names of the users.

8. On 8 July 2014 the applicant’s employer called the police because allegedly right-wing demonstrators had gathered in front of his premises. On 9 July 2014 a video appeared on YouTube in which members of a radical right-wing movement were seen surrounding the applicant’s employer.

9. On 8 August 2014 the police department forwarded the file to the Pest Central District Court for private prosecution.

10. In reaction to the ensuing complaint of the applicant’s lawyer, on 10 December 2014 the Budapest VIth and VIIth district prosecutor’s office ordered investigations into the offences of abuse of personal data (Article 219 of the Criminal Code (“the CC”)) and harassment (Article 222 of the CC). On 15 December 2014 the Pest Central District Court ordered the district prosecutor’s office to investigate into the offence of libel as well (Article 227 of the CC). The two cases were joined on 22 January 2015.

11. The ensuing investigations were suspended by the Budapest VIth district police department on 12 November 2015 on the grounds that none of the perpetrators could be identified, since the hosting service providers of both kuruc.info and deres.tv were located in the United States and it was “impossible to acquire information”. According to the decision, three persons who had appeared outside the applicant’s workplace on 8 July 2014 had been questioned and had stated that they had wanted to conduct an “interview” with the applicant about his performance at the Budapest Pride parade. They confirmed that they had received the information about the applicant from the Internet portal kuruc.info but denied having any information about the author or the operator of the website. The security guard, receptionist and usher of the building, who had been present during the incident, had also been questioned.

12. The applicant complained against this decision to the Budapest VIth and VIIth district prosecutor’s office on 27 November 2015, requesting that the investigations be continued. He argued that the police department had made no genuine attempt to identify the perpetrators, had not checked the Facebook profile of the persons sending the threatening messages and had not requested the hosting service provider of kuruc.info for information. The applicant submitted that under Act no. XXXVIII of 1996 on international mutual assistance in criminal matters the investigating authorities could have requested assistance from the authorities in the United States. He also maintained that the reluctance of the authorities to properly investigate the case was due to his homosexuality.

13. On 25 January 2016 the applicant lodged a second complaint with the prosecutor’s office, arguing that the fact that the hosting service provider of kuruc.info was in the United States did not exempt the authorities from conducting a proper investigation. He also pointed out that the decision of the police department had not contained any reasoning as to why it had been impossible to identify the alleged perpetrators through Facebook.

14 . The prosecutor’s office dismissed the complaint on 27 January 2016. The decision stated that the hosting service provider of kuruc.info was in the United States and that a request for assistance to identify the operator of the website would be to no avail, since the right to freedom of expression could not be restricted according to the US legal system. Furthermore, according to the decision, the investigating authorities enquired with Facebook about the identity of the users who had been in touch with the applicant during the period at issue but received no reply. An attempt to collect data with a view to identifying the perpetrators from the publicly available information on Facebook did not produce any result either.

COMPLAINTS

15. The applicant complained that the authorities, due to their biased attitude towards him, did not perform an adequate investigation. He invoked Articles 8 and 14 of the Convention.

THE LAW

16. The applicant complained that by failing to properly investigate the online threats and hateful comments made against him the authorities had neglected their positive obligations. He maintained that this failure of the authorities was due to their biased attitude towards him because of his sexual orientation. He claimed a breach of Article 8 of the Convention, taken alone and in conjunction with Article 14.

17. The Court considers that the most appropriate way to proceed is to subject the applicant’s complaints to simultaneous examination under Article 8 taken in conjunction with Article 14 of the Convention. Those provisions, in so far as relevant, read as follows:

Article 8

“1. Everyone has the right to respect for his private ... life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... other status.”

18. The Government argued that the investigation into the applicant’s allegations had been adequate and contested the applicant’s argument that the domestic authorities had disregarded the alleged homophobic motive behind the acts against him. The authorities had heard evidence from the witnesses present at the incident of 8 July 2014 and concluded that the conduct of the three persons who had sought to interview the applicant had not been aggressive and had not constituted a crime. The investigating authorities had made an attempt to identify the authors of the threatening messages but none of the measures taken had produced any result: the operator of Facebook had not replied to the authorities’ request to access the personal data of the users in question and the search of their publicly available information had not enabled them to be identified either.

19. Concerning legal assistance by the United States, the Government submitted that, in an earlier case the relevant US authority had informed the Hungarian Attorney General that such a request for legal assistance in case of libellous actions committed via the Internet, US compliance with the request for legal assistance was possible only in case of a danger of imminent violent action. In connection with the abuse of personal data, the Government pointed out – on the basis of the memorandum sent by the US Department of Justice on 1 October 2007 – that for a request for legal assistance to be complied with it was not sufficient that the publication of personal data might be capable of causing intimidation, but there must be danger of direct violence. In the present case, however, no such fact or circumstance could be established.

20. The Government emphasised that during the investigation that had lasted some eleven months, the authorities had effected numerous enquiries, in particular collected testimonies from the applicant and several witnesses (including persons dealing with the complaints about the impugned Internet comments and those involved in the incident of 8 July 2014), analysed the Internet contents complained of, and sought information from Facebook although in vain.

21. According to the applicant, the investigating authorities had not taken reasonable steps to conduct an effective investigation into his criminal complaints – which would have been their positive obligation under Article 8 of the Convention. Even assuming that international mutual assistance would have only been possible in the presence of a clear and present danger, his case had clearly fallen into that category. Referring to a survey conducted by the NGO Hungarian Civil Liberties Union concerning requests for mutual legal assistance in criminal matters, the applicant pointed out that there was evidence that the US authorities had previously granted such requests in cases similar to his concerning the misuse of personal data.

22. Furthermore, according to the applicant, the investigating authorities could easily have identified the authors of the threatening messages posted via their publicly available Facebook pages, even in the absence of their IP addresses which had been requested from Facebook.

23. The applicant maintained that he had been treated differently by the Hungarian authorities because of his sexual orientation. He submitted that the lack of an effective investigation had been grounded in the authorities’ biased attitude. He argued that the systematic failure to prevent the infringement of the rights of persons belonging to the LGBTQI community contributed to a culture of impunity.

24. The non-governmental organisation Article 19 submitted that “hate speech” and various forms of discriminatory language on the grounds of sexual orientation and gender identity had been on the rise in Hungary in recent years, with the backing of high-ranking government officials; and there was a systematic failure by Hungary to investigate or to prevent the infringement of the rights of LGBTQI people and activists (harassment, threats).

25. Article 19 argued that when online harassment and abuse reached a certain level of severity, such as when serious harm was caused, States were obliged to resort to criminal law and to undertake prompt, expeditious, thorough and comprehensive investigations. As regards mutual legal assistance treaties, a resilient way of obtaining data from abroad, the experience that these are long and complex procedures could not exempt States from discharging their positive obligations.

26. The Court has recently set out the general principles relevant to the present application in the case of Beizaras and Levickas v. Lithuania , (no. 41288/15, §§ 106-16, 14 January 2020).

27. The Court considers that the disclosures of the applicant’s personal particulars including his sexual orientation affected his private life, and so did the online and personal abuses and threats directed against him. Article 8 is therefore applicable in the case. Moreover, since the facts of the case are within the scope of Article 8, Article 14 is likewise applicable (see Alekseyev v. Russia , nos. 4916/07 and 2 others, § 106, 21 October 2010).

28. The fact that the applicant’s photograph and his home and workplace addresses were also made public, that certain persons appeared at his workplace and that explicit threats were sent to his Facebook profile meant that those comments may be seen as constituting a genuine threat and, as such, hate speech, the victims of which must be protected by the criminal law (see Beizaras and Levickas, cited above, § 128). This requires effective steps to be taken to identify and prosecute the perpetrators. However, in view of the difficulties involved in policing modern societies, a positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. (see K.U. v. Finland , no. 2872/02, § 48, ECHR 2008).

29. In the present case, the Court notes that the police recorded the applicant’s complaints and that the prosecutor’s office ordered an investigation into several offences (see paragraphs 7 and 10 above) but that the criminal-law protection put in place by the Hungarian Criminal Code ultimately did not lead to successful prosecution of the perpetrators. Although the authorities were pursuing the case in an investigation lasting about eleven months under various provisions of the criminal law, the identities of the perpetrators could not be found out. In particular, the authorities collected evidence from the applicant and several witnesses and analysed the impugned Internet contents. Moreover, they sought information from Facebook to verify the identities of the authors of the comments in question, but their enquiries remained unanswered. The authorities chose not to avail themselves of the procedure of mutual legal assistance in regard to the United States where the incriminated servers seem to be located, because they relied on an earlier official communication from their US counterpart explaining that such an enquiry would be complied with only in case of danger of direct violence (rather than just intimidation) – an element not considered to be present in the instant case.

30. In the light of the above, the Court considers that the investigative actions undertaken by the domestic authorities constituted appropriate, albeit unsuccessful, steps towards identifying and punishing those responsible for the alleged crimes. Those authorities opened a formal investigation under the Criminal Code provisions of libel, harassment and abuse of personal data, and terminated the investigation only when the identities of the perpetrators could not be found out. The Court therefore accepts that the Hungarian authorities discharged their positive obligations flowing from Article 8 of the Convention (compare and contrast, Beizaras and Levickas, cited above, §§ 18 to 23, where the authorities decided not to initiate a pre-trial investigation at all). Moreover, having regard to all the material in the case file, the Court finds that the applicant has failed to substantiate his allegation that he was discriminated against in the enjoyment of his Convention rights.

31. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 September 2021.

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Liv Tigerstedt Alena Poláčková Deputy Registrar President