ublished on 12 December 2022

SECOND SECTION

Application no. 34079/21 Valdemar TOMAÅ EVSKI against Lithuania lodged on 15 June 2021 communicated on 22 November 2022

SUBJECT MATTER OF THE CASE

The case concerns the applicant’s complaint that the State authorities had not protected him from hate speech directed against him as a politician and as a member of the Polish ethnical minority in Lithuania.

On 11 October 2020 the first round of voting to the Seimas election took place in Lithuania. On 14 October 2020, before the second round of voting which was to take place on 25 October 2020, one of the largest television news websites in the country broadcast an interview with A.V., a long time and very well-known television producer and a former Speaker of the Seimas . In that interview, when discussing the elections to the Seimas , A.V. made the following statements: “The Polish party and [the applicant] have nothing in common. [The applicant] is a total Colorado beetle, who receives financing for his party from the Lithuanian State budget, yet he is anti-State. Such persons should be shot, by the way. One person per year. Starting with him, because what he does is a big problem...”

Afterwards a pre-trial investigation under Article 170 § 2 of the Criminal Code (incitement to hatred) was opened. The applicant, who was first questioned as a witness and then granted victim status, complained to the authorities of A.V. having incited violence against him, as the chairman of the Electoral Action of Poles in Lithuania political party and as a member of the European Parliament, on the grounds of the applicant’s Polish ethnicity and because of his political views. The applicant submitted that A.V. had already previously expressed negative views towards persons of Polish ethnicity, and that the statements in question had hurt not only the applicant but also his family members, the members of his political party and other persons of Polish ethnicity. The applicant further referred to the negative reaction of foreign States to V.A.’s statements.

By a ruling of 7 December 2020 the prosecutor discontinued the pre-trial investigation, holding that although A.V.’s statements had been unethical, they had not exceeded the limits of political criticism. The applicant, as a politician, had to be more tolerant, since freedom of political debate was at the very core of the concept of a democratic society. For the prosecutor, A.V.’s statements had not reached the threshold to be considered criminal under Article 170 § 2 of the Criminal Code: although A.V. had used demeaning language towards the applicant and some other members of the applicant’s political party because of their political activity and decisions, that language was not aimed at inciting hatred or discrimination towards a group of persons on the basis of their ethnicity, beliefs or views.

On 11 January 2021 the applicant’s appeal against the discontinuation of the investigation was dismissed by a higher prosecutor.

The applicant lodged an appeal with the Vilnius City District Court, arguing, among other, that A.V.’s statements had crossed the limits of political battles and clearly amounted to criminally punishable hate speech. One should also not overlook that the impugned statements had been made in the context of the Seimas ’ elections; by such statements, inciting hatred and urging for violence, A.V. had sought to restrict the voters’ choice.

On 26 January 2021 the Vilnius City District Court dismissed the applicant’s appeal, holding that expressing an opinion, especially when talking about politics, in no way restricted other persons’ electoral rights. Moreover, it had been established that there had been no incitement to hatred and that values protected by criminal law had not been breached. Negative statements had been directed not at the Polish ethnic minority, but towards particular persons taking part in politics.

In his appeal of 28 January 2021 the applicant argued, among other, that the prosecutors had not been impartial and objective in the way the pre-trial investigation had been conducted, and that by discontinuing the pre-trial investigation at that stage – before the merits of the complaint had been examined in court – the prosecutors restricted the applicant’s right of access to court, protected by Article 6 of the Convention. He also pleaded that the impugned statements by A.V. could not be justified by reliance on freedom of speech. The applicant reiterated that the statements in question had been made during the Seimas elections, and that by such statements A.V. had sought not only to restrict the voters’ freedom of choice in elections, but also to “criminally remove” the politician and his [political associates] from the election.

By a final ruling of 22 February 2021 the Vilnius Regional Court dismissed the applicant’s appeal and upheld the first instance court’s ruling.

Referring to Articles 6 and 14 of the Convention, and Article 3 of Protocol No. 1 to the Convention, the applicant complains that the authorities tolerated hate speech directed at him on the basis of his political views and ethnicity, and that such hate speech sought to influence the voters’ opinion in the Seimas elections. The applicant also complains that the case was terminated at the stage of the pre-trial investigation, when the applicant had limited procedural rights to effectively intervene, thus preventing that the merits of his complaint be publicly examined in the courtroom.

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 A.V.’s statements regarding the applicant (see Beizaras and Levickas v. Lithuania , no. 41288/15, §§ 106-116, 14 January 2020, and the case-law cited therein)?

2. Has there been a breach of the applicant’s right under Article 3 of Protocol No. 1 to the Convention to participate in free elections which have ensured the free expression of the opinion of the people in the choice of the legislature?