Court View

With Court View, the MHREC plans on putting the spotlight on landmark human rights cases on a regular basis in order to bring to light particular human rights issues and provide an opportunity for reflection and discussion.

This week’s landmark judgment is Beizaras and Levikas v Lithuania (no 41288/15) decided by the European Court of Human Rights on the 14th of January 2020. The case related to discrimination by state authorities in their refusal to prosecute authors of serious homophobic comments on Facebook, including undisguised calls for violence, without effective investigation beforehand.

In 2014, a young man posted a photograph of himself and his boyfriend on his Facebook profile to announce their relationship as a couple and also inspire a healthy discussion on same-sex couples. The post went viral, also receiving hundreds of homophobic comments. At the applicant’s request, an organization upholding LGBT rights in Lithuania lodged a complaint with the Prosecutor’s office against 31 of these online comments asking the prosecution to open an investigation for incitement to homophobic hatred and violence which is a criminal offence under the Lithuanian Criminal Code. The Prosecutor’s office in Lithuania refused to open a preliminary investigation and in 2015, the Lithuanian Courts also dismissed the association’s appeals against this refusal on the grounds that: 1. Posting the “eccentric” (quote) photo publicly had amounted to provocation on the part of the applicants, in contradiction to the traditional family values prevailing in Lithuania and 2: the impugned comments expressed unfavourable opinions “admittedly immoral, obscene or badly chosen…” but that they nevertheless did not contain the actus reus (act) and mensrea (intention) elements of the offence in issue.

Having exhausted local remedies, the applicants’ turned to the European Court of Human Rights. The European Court of Human Rights concluded that the applicants had indeed suffered discrimination on the grounds of their sexual orientation without good cause, given that:
The hateful comments by private individuals directed against the applicants and the gay community in general were instigated by a bigoted attitude towards the community;
and that the same discriminatory state of mind was subsequently at the core of the Lithuanian authorities’ failure to discharge their positive obligation to investigate in an effective manner.

The Court also held that it was clear that the comments had affected the applicants’ psychological well-being and dignity, and that therefore article 14 on discrimination was applicable under Article 8 on the right to private and family life. It also held that the applicant’s deliberate intention to instigate a discussion on his Facebook post could not in any way be viewed as a threat to cause public unrest, as there was also no reason to consider values of family life to be incompatible with social acceptance of homosexuality in Lithuania; as clearly evidenced by the growing general tendency to view relationships between same-sex couples as falling within the concept of family life.

The European Court of Human Rights unanimously found Lithuania to be in violation of its duties under the Convention, and found in substance that:

“the authorities were doing almost nothing in the face of the growing intolerance towards sexual minorities; in reality, the bodies responsible for applying the law did not recognize prejudice as a motivation in such offences; they had not adopted an approach which took account of the seriousness of the situation; and, in particular, there was no comprehensive approach to tackle the issue of racist and homophobic hate speech.”

The Maltese Situation
Malta ranks high in the amounts of online hate speech, with a 2018 Eurobarometer reporting that 55% of the Maltese saying that hate speech was the illegal content they were most likely to encounter online.

Consequently, it was announced in June 2019 that the Ministry for Home Affairs was in the process of establishing a specialised unit dedicated to tackling hate speech and hate crime in Malta. Following migrant protests and a showing of increased hate speech on social media, the unit was inaugurated in October 2019.

The hate crime and hate speech provisions were also extended to cover the grounds of sexual orientation and gender identity through The Criminal Code (Amendment) Act (ACT NO.VIII of 2012) introducing amendments to Articles 82A, 82C and 83B.

More information on the Unit can be found on: https://stophate.gov.mt/en/Pages/Home.aspx

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