Ruling against Lithuania
In 2020 the European Court of Justice dealt with a case of discrimination against homosexuals in Lithuania (Ruling Application no. 41288/15 of the 14th of January 2020). In the core, it concerned the duty of the state to protect persons from homophobic hate speech.
The background of this case
The Applicants were two young men. One of them published a photo on his Facebook page of them kissing. This picture lead a lot of people leaving hundreds of hate comments. Some of these were related to LGBT in general (shortcut for Lesbian, Gay, Bisexual and Transgender). Others were directly addressed to the Applicants and contained direct threats against the two.
Judgement of the public prosecutor
After submission of a criminal complaint, the public prosecutor refused to make an investigation. Instead, the prosecutor justified his refusal. He considered the comments were “immoral”, but didn’t constitute an element of a crime. Therefore, the comments were not sufficient for persecution.
Judgement of the national courts
The national courts confirmed this point of view and refused to open a preliminary investigation with regard to hatred and violence against homosexuals. Furthermore, the national courts considered the opening of criminal proceedings as a “waste of time and resources”. With regard to the comments, they qualified the wording as “not chosen properly”.
The Applicants appealed against this ruling at the European Court of Justice. They claimed that the State had failed to respond to their complaint. The complaint being the discrimination against them on the basis of their sexual orientation.
The ruling of the European Court of Justice
The national authorities regarded the public display of the picture as provocative. Contrary to this opinion, the European Court of Justice (hereinafter “the Court”) did not see this to be illegitimate. In fact, it recalled the State’s recognition of the right of individuals to openly identify themselves with any sexual orientation.
The Court reached the conclusion that the sexual orientation of the Applicants played a role in how their case was handled by the national authorities. Especially, the national authorities (including the national courts) made it very clear that they disapproved how the Applicants expressed their homosexuality in public. Therefore, the Applicants have been denied an effective remedy in respect of the refusal of persecution.
In addition, the Court shared the view of the Applicants regarding the criminal relevance of the comments. Basically, the Court said, if these comments are not relevant regarding criminal behavior, then it can’t imagine, which wording is.
Violations of the European Convention on Human Rights
Through this refusal of persecution, the Applicants were deprived of the protection that the criminal law grants. The criminal law would protect the Applicants against any call for the impairment of their physical and mental integrity. The Court saw an infringement of Article 14 ECHR (Prohibition of discrimination), Article 8 ECHR (Right to respect for private and family life), and Article 13 ECHR (Right to an effective remedy).