Legal summary

January 2023

Valaitis v. Lithuania - 39375/19

Judgment 17.1.2023 [Section II]

Article 13

Effective remedy

Discontinuation of investigation into homophobic comments on the Internet not disclosing any prejudicial attitude by the authorities taking account of the Court’s case-law : no violation

Facts – The applicant published an essay, referring to a finalist of televised singing competition who had publicly come out as homosexual, on the Internet portal of a major daily newspaper. As the essay received a number of homophobic comments, also targeting the applicant personally, a criminal investigation was started into incitement to hatred and discrimination. It was later discontinued by reference to the grounds and the Supreme Court’s case-law, which had been criticised in the Court’s Beizaras and Levickas judgment, finding a violation of Article 14 in conjunction with Article 8 and a breach of Article 13. The latter finding of the Court stemmed from the State authorities’ “prejudicial attitudes”, the failure to acknowledge the bias motivation of such crimes and a lack of a comprehensive strategic approach to tackle the issue of racist and homophobic hate speech.

Subsequently, following the communication of the instant case to the respondent Government, the Prosecutor General’s Office, relying on Beizaras and Levickas and Lithuania’s obligation to execute it , reopened the pre-trial investigation. Some of the authors of the comments were identified and released from criminal liability, given that they had cooperated with the authorities; some were conditionally released from criminal liability, and some suspects were identified but there was not enough data to prove their guilt. A number of comments had been made from IP addresses abroad, which precluded the identification of their authors. The investigation was therefore discontinued or suspended in respect of all the impugned comments.

Law – The comments had been serious enough in their severity to raise an issue under Article 14 taken in conjunction with Article 8.

Following the Court’s judgment Beizaras and Levickas, the Lithuanian authorities had taken wide-ranging and multifaceted measures to increase the capacity of the Lithuanian criminal justice system to address the issues raised, including the formation of an inter-institutional working group to strengthen the State authorities’ approach on how to respond to hate speech and to hate crimes and the publication of the Prosecutor General’s Methodological Recommendations on how to detect and prosecute hate speech. The Court also had regard to the decision of the Prosecutor General’s Office reopening the pre-trial investigation in the applicant’s case, and similar decisions taken in other hate-speech cases, as demonstrative of a clear and positive shift in the State authorities’ attitude towards the prosecution of hate crimes. Recent rulings by the Supreme Court also demonstrated that that an effective domestic remedy for complaints of homophobic discrimination now existed at all levels of jurisdiction. Finally, the support of civil-society for the reforms, the numerous training sessions for judges, prosecutors and police officers, the statistical information regarding the number of investigated hate crimes, as well the recognition by both the Committee of Ministers and the Deputies of the progress so far further demonstrated the changes that had been made.

In respect of the applicant’s case, the Prosecutor General’s Office had first ruled out as unjustified a number of grounds for the suspension of the pre-trial investigation which had been criticised by the Court. Secondly, it had found the questions of fact and law in the applicant’s case had been analogous to those examined by the Court in Beizaras and Levickas , the adoption of which the Office had seen as an important circumstance to reopen the pre-trial investigation in the applicant’s case. Thirdly, the Office had pointed to a number of aspects which had not been examined in that pre-trial investigation, also against the background of the newly adopted Methodological Recommendation. Fourthly, the Office had referred to the Court’s case-law according to which the gravest forms of hate speech fell outside the scope of protection of Article 10 of the Convention, and to the States’ obligation to execute the Court’s judgments. As a result, the pre-trial investigation had been reopened.

It could not be concluded that the re-opened pre-trial investigation in the applicant’s case had been discontinued or suspended owing to a prejudicial attitude by the Lithuanian authorities. Moreover, in contrast to Beizaras and Levickas , an investigation, albeit delayed, had actually been carried out in the applicant’s case. Although that investigation ultimately had not led to persons who had written the hateful comments in question being convicted or even charged, it had not, when considered as a whole, fallen short of the requirements under Article 13 of the Convention.

In sum, the domestic authorities in the present case had drawn “the necessary conclusions” from the judgment in Beizaras and Levickas and, by applying the domestic law in the light of the principles as formulated by the Court in that judgment, “addressed the cause of the Convention violation”. The recently adopted guidelines and recommendations by the domestic authorities, as well as the comprehensive approach when tackling hate crimes, including a number of decisions by prosecutors and courts, demonstrated that the authorities’ discriminatory attitude – identified by the Court in Beizaras and Levickas – was no longer apparent and that effective remedies regarding the prevention, detection and prosecution of hate crimes might also come about through domestic practice.

Conclusion: no violation (six votes to one).

(See also Hutchinson v. the United Kingdom [GC], 57592/08, 17 January 2017, Legal Summary ; DrÄ—lingas v. Lithuania , 28859/16, 12 March 2019, Legal Summary ; Beizaras and Levickas v. Lithania, 41288/15, 14 January 2020, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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