The ECtHR dealt with homophobic hate speech in the case Valaitis v. Lithuania of 17 January 2023. The decision follows and complements the earlier one Beizaras and Levickas v. Lithuania in the legal debate on pluralism, freedom of expression and protection from online hate speech, dating back to January 2020. The applicant lodged an application to the ECtHR complaining about the violation of the right to an effective remedy (article 13) owing to the lack of protection for homosexual people from homophobic hatred.

 

In particular, the applicant wrote an article referring to a gay finalist in the TV singing competition The Voice, published on the webpage of a major daily newspaper. In response to this article, many hateful comments had been posted. Among these, ‘kill a faggot before it’s too late!’; ‘if it were normal, those degenerates would not have been exterminated, which also should be done now’ (paragraph 7). After some hesitation on part of the authorities, an investigation was opened but eventually discontinued for a number of reasons. For example, some of the authors of the comments had been identified but they had then cooperated with the authorities. Or, while improper, the comments did not amount to a crime (paragraph 27). Equally, the authors of comments could not be accurately identified and/or convicted, because, inter alia, comments had been published from IP addresses abroad or via VPNs hiding the address (paragraphs 30-33).

 

The Court found no violation of article 13 as the state authorities had acted in compliance with their obligation to effectively respond to the complaint, as a positive reaction to the earlier judgment Beizaras and Levickas v. Lithuania. In that decision, the ECtHR found that Lithuania was in breach of the concerned provision, urging the government to improve its response to hate crimes. Indeed, the Court also noted that, following Beizaras and Levickas, the state had undertaken various measures to enable the criminal justice system to prevent, detect and prosecute hate speech and hate crimes. For example, it had reviewed 261 procedural decisions on potentially discriminatory criminal acts and demonstrated that the authorities’ discriminatory attitude was no longer apparent (paragraph 115). ‘The current practice of the Lithuanian authorities, since delivery of the judgment in Beizaras and Levickas,’ the ECtHR maintained, ‘no longer displays the discrepancy that the Court identified in that judgment’ (paragraph 114).

 

Overall, the Court stressed that the reopened investigation had not been discontinued because of the authorities’ supposedly discriminatory attitude. For instance, being the obligation to conduct an effective investigation an obligation as to means, not as to results, the absence of charges or convictions does not automatically lead to an infringement of the concerned the right to an effective remedy under article 13.

 

(Comment by Giovanna Gilleri)