DISSENTING OPINION OF JUDGE KRENC

(Translation)

1. I am, very much to my regret, unable to agree with the judgment’s reasoning and conclusion to the effect that there has been no violation of Article 13 of the Convention in the present case.

2. In my opinion, the judgment embarks on a review of the execution of the judgment given in Beizaras and Levickas v. Lithuania (no. 41288/15, 14 January 2020) rather than dealing with the specific case of the applicant whose complaint was before the Court.

That approach (as expounded at paragraphs 98 to 116 of the judgment) seems problematic to me in two respects.

3. First, I am not sure that it accords with the division of competences, laid down by the Convention, between the Court and the Committee of Ministers. Under Article 46 § 2 of the Convention, it is, in principle, for the Committee of Ministers to supervise the execution of judgments. It may fall to the Court to review the execution of its judgments in specific circumstances: where an infringement procedure is initiated before it, pursuant to Article 46 §§ 4 and 5 of the Convention, or where an applicant complains to it that a previous judgment finding a violation of his or her Convention rights has not been executed, to the extent that the failure of execution raises a new issue undecided by the initial judgment (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, ECHR 2009; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, ECHR 2015; and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, 11 July 2017). No such circumstances arise in the present case.

4. Furthermore, my difficulty relates to the compatibility of the present judgment’s approach with the Court’s task as regards Articles 19 and 34 of the Convention.

In examining an individual application the Court may have to consider the steps taken by a State in response to a previous judgment finding it liable for a violation (see, in another field, Vermeire v. Belgium , 29 November 1991, Series A no. 214 ‑ C, and Fabris v. France [GC], no. 16574/08, ECHR 2013 (extracts)). That is not open to question.

However – and this is where I take issue – the Court cannot focus solely on the steps taken in execution of a previous judgment while disregarding the issues raised by the specific case before it. Pursuant to Articles 19 and 34 of the Convention, the Court’s task is to decide whether there has been a violation of the Convention in the concrete case put before it by the applicant, not to determine whether and how the national authorities have given effect to one of its previous judgments.

5. In its case ‑ law on Article 13 of the Convention, which lies at the crux of this case, the Court has repeatedly held that “in cases arising from individual petitions the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it” (see Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000 ‑ II).

Contrary to this general rule, the present judgment focuses on the measures taken by the Lithuanian authorities after the Beizaras and Levickas judgment. I observe that the latter was delivered two years (14 January 2020) after the applicant in the present case had complained to the national authorities (17 January 2018). I therefore have serious doubts at the outset about the impact of those measures on the applicant’s case.

6. Moreover, the case file discloses that the decision to reopen the pre ‑ trial investigation was taken in October 2020, shortly after the Prosecutor General’s Office was notified of the application lodged with the Court (see paragraph 19 of the judgment). The timeline of the domestic proceedings makes it difficult to believe that the lodging of the application played no part in the national-level decision to reopen the investigation. That it would have been reopened in the absence of such application to the Court may be seriously doubted, as it was by the applicant (see paragraph 73 of the judgment).

At any rate, no conjecture is necessary; it is enough to observe that the Prosecutor General’s Office itself pointed out the failings of the nearly three ‑ year ‑ long investigation (see paragraphs 20 to 24 of the judgment). The present judgment takes note of this (see paragraphs 108 and 109; see also paragraph 94) but does not draw the necessary conclusions as to the effectiveness of the investigation. And yet it is clear beyond dispute from the record of the case that the decision to reopen the investigation was taken on the ground that States had a positive obligation to protect persons of homosexual orientation from homophobic speech and that the investigation thus far conducted had not discharged that obligation (see paragraphs 21, 22 and 23 of the judgment).

7. In my view, the taking of investigative action after the investigation was reopened did not have the effect of remedying the failings that had already been observed before it was reopened.

The effectiveness required by Article 13 must be established in relation to the relevant period (see Khider v. France , no. 39364/05, §§ 142-145, 9 July 2009).

Here, it cannot escape notice that the investigation was reopened more than thirty months after the applicant had complained to the authorities. That period is in itself quite long to be regarded as compatible with the State’s obligation to investigate hate crimes in a timely manner.

I also note that one of the effects of the lengthy passage of time was to make it impossible to identify the authors of several comments, since information about IP addresses was stored for a limited time (see paragraphs 32 and 33 of the judgment). The protracted nature of the investigation therefore concretely impaired its effectiveness.

8. The judgment lays particular emphasis on the fact that “once the pre ‑ trial investigation had been reopened by the Prosecutor General’s Office” there was no discernible “discriminatory attitude on the part of any of the Lithuanian authorities or officials involved in the applicant’s case” (paragraph 110 of the judgment). I agree, but I do not think that that was a sufficient basis on which to hold that the investigation had been effective for the purposes of Article 13 of the Convention.

First, that finding of the majority concerns only the period after the investigation was reopened in October 2020 and not the (lengthy) period which preceded its reopening.

Second, and above all, the absence of such prejudice does not at all mean that the investigation was “effective” for the purposes of Article 13 of the Convention. What “effectiveness” requires first and foremost is a thorough and prompt investigation. Those are the cardinal requirements of “effectiveness”, and in my view they were not met in this case.

In addition, the applicant’s complaint does not concern the discriminatory conduct of the authorities during the investigation but relates to the lack of effectiveness of the investigation regarding homophobic and discriminatory statements of which he was a victim (see paragraphs 71-76 of the judgment).

9. Lastly, I am unable to join my esteemed colleagues in seeing “no grounds to depart from the (...) assessment by the Committee of Ministers” regarding the individual measures taken to execute the judgment in Beizaras and Levickas (see paragraph 111 of the judgment). I find such an approach problematic, since the Committee of Ministers did not determine the applicant’s case; nor for that matter would it have had any jurisdiction to do so. With all due respect, I regret to observe that, here again, the judgment sows confusion as to the respective roles of the Court and the Committee of Ministers.

The Court’s role is to rule on the applicant’s case and to say what the Convention requires, whereas the Committee of Ministers’ task under the Convention is to supervise the execution of the Court’s judgments.

10. Let me be clear: the considerations set out above are in no way meant as criticism of the measures taken by the Lithuanian authorities following the judgment in Beizaras and Levickas . On the contrary, the authorities sought to execute that judgment in good faith. This is a good example of a virtuous dialogue between the Court and the national authorities – a point I wish expressly to emphasise.