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MINISTERS’ DEPUTIES |
Notes on the Agenda |
2 December 2021 |
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1419th meeting, 30 November – 2 December 2021 (DH) Human rights
H46-21 Beizaras and Levickas v. Lithuania (Application No. 41288/15) Supervision of the execution of the European Court’s judgments Reference documents |
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Application |
Case |
Judgment of |
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Indicator for the classification |
Case description
This case concerns the refusal of the law enforcement agencies, due to their discriminatory attitudes, to launch a pre-trial investigation into the applicants’ allegations of having been subjected to serious homophobic online hate speech in 2014, after 31 hateful comments were posted on the first applicant’s Facebook page (violation of Article 14, in conjunction with Article 8). It also concerns the denial of an effective domestic remedy in respect of the applicants’ complaint concerning a breach of their right to private life, on account of the discriminatory attitudes in the application of domestic law (violation of Article 13).
Status of execution
The Lithuanian authorities submitted two detailed action plans, on 13 November 2020 and 31 August 2021 (see DH-DD(2020)1044 and DH-DD(2021)852), summarised below:
Individual measures
The just satisfaction (covering non-pecuniary damages and costs and expenses) was paid in full and in time.
In response to the judgment, the authorities’ initial decision to refuse to start a pre-trial investigation was quashed. On 14 July 2020, a pre-trial investigation was initiated under Article 170 § 2 of the Criminal Code of Lithuania (“Incitement against Any National, Racial, Ethnic, Religious or Other Group of People”) into all 31 comments made by 29 persons. The authorities provided detailed information on the progress and status of this investigation. To date, criminal proceedings have ended in seven cases and are still pending in 22 cases. In five cases, requests for legal assistance have been sent to foreign authorities to question the suspects who live abroad. In four cases, the criminal proceedings are pending at different stages before the domestic courts. It has not yet been possible to identify thirteen persons due to the passage of time since the facts at issue. The authorities explain that should their identity be established, investigations could be opened against them as long as criminal prosecution has not been prescribed by that date.
General measures
The authorities underline that the Court did not call the domestic legislation into question but instead underlined as the source of the violations the discriminatory attitudes of the domestic authorities (the prosecutors and the courts) in its application. They have therefore taken measures to change the domestic practices and prevent similar violations of Article 14 in conjunction with both Article 8 and Article 13.
A. Improving effectiveness of investigations into hate crimes and hate speech
1. New Methodological recommendations for prosecutors and police officers on the conduct of pre-trial investigations into hate crimes and hate speech
Recommendations which adhere to the Court’s case-law and follow the Court’s findings in the judgment were drafted by an academic and approved by the Prosecutor General in March 2020. They have been disseminated to the heads of regional prosecutors’ offices and the police and discussed in inter-institutional working groups.
2. Specialisation of prosecutors
Examination of complaints on hate crimes is allocated as much as possible to specialised prosecutors. For example, two recent orders of 2020 of the chief prosecutors of the Vilnius and Klaipeda Regional Prosecutor’s Offices oblige the Heads of the respective structural divisions to ensure that the examination of complaints regarding alleged hate crimes and hate speech are allocated to prosecutors specialised in dealing with criminal acts against individuals’ equality and freedom of conscience.
3. Review of previous decisions to refuse to start/to suspend/to discontinue pre-trial investigations
Explicitly invoking the Court’s judgment, regional prosecutors are reviewing their previous decisions from 2016 onwards to refuse pre-trial investigations into allegations of hate crimes and hate speech, in order to examine whether a bias-motivation (including based on sexual orientation as in the present case) was an element of criminal acts committed against a person, society or property, or an aggravating circumstance. To date, the Vilnius Regional Prosecutor’s Office alone has reviewed 261 procedural decisions regarding criminal acts with potential bias-motivation (17 out of 261 procedural decisions were quashed after this review).
4. Targeted trainings and awareness raising projects
Between 2017 and 2021 multiple relevant trainings for law enforcement authorities took place and projects were implemented (see DH-DD(2021)852 for full details). In 2020, the Prosecutor’s General’s office organised with the Government Agent, presentations to prosecutors and discussions on the implications of the findings of the Court in the case. In 2021, the Office of the Equal Opportunities Ombudsperson held two focus groups for police officers and prosecutors with the main aim of identifying the challenges in investigating and prosecuting hate crimes and the potential shortcomings in the ongoing investigations. It also organised a national awareness-raising campaign “Hate speech is a crime”. In December 2021, the National Human Rights Forum will be held on the issue of hate speech and hate crimes in Lithuania.
5. Registration and data collection on hate crimes and hate speech
At the request of the Prosecutor General’s Office, changes are planned to the electronic database of criminal procedure and the Register of Criminal Offenses to improve registration and data collection on hate crimes.
6. Translation and dissemination of the judgment
The judgment was published in Lithuanian on the Government Agent’s website with free access. The Agent also separately informed in writing the competent domestic authorities about the judgment, sending detailed explanatory notes. The Prosecutor General’s Office held several meetings to discuss the impact of the present judgment on domestic investigations.
B. Evolution of the domestic case-law
The authorities note that the case-law of the domestic courts (including that of the district courts) shows a positive trend in eliminating impunity for discriminatory and homophobic hate comments on the internet. Recent case-law of the Supreme Court shows that hate speech based on sexual orientation is not tolerated and that it no longer refers to “eccentric behaviour” as criticised by the Court.
For example, in a criminal case of 2018, where the perpetrator was convicted for inciting hatred against groups of people on different grounds, including sexual orientation, the Supreme Court referred extensively to the Court’s case-law on hate crimes and underlined the seriousness of discrimination based on sexual orientation. Statistics show that in 2020, eight cases were transferred to courts for examination: three cases were decided, three persons were found guilty, and one person was acquitted. Up to 31 May 2021, 15 cases were transferred to courts for examination: 11 cases were decided, 10 persons were found guilty and compulsory treatment was imposed on one person.
C. Prevention of hate crimes and hate speech
In April 2021, the Lithuanian Police Office launched a virtual patrol unit to monitor social networks and carry out preventive activity in cyberspace, by collecting information about alleged violations and transferring that information to the relevant police unit to carry out investigations. Within a month from the start of its activity, the virtual patrol received 576 reports from individuals and institutions. The reports include, but they are not limited to, hate speech and discrimination. 11 cases were transferred to the police for investigation into incitement to violence and three pre-trial investigations into alleged incitement to violence were initiated on the basis of the information received from the virtual patrol. The installation of a plugin in online media to prevent hate incidents is planned for by the end of April 2022.
D. Improving reporting on hate crimes and hate speech
Online platforms have been developed to encourage reporting on hate speech: on the ‘ePolicija.lt’ site, individuals can inform the police about criminal acts and follow the case; UNI-FORM, the online platform connecting LGBTI NGO’s and police forces in EU countries, is implemented in Lithuania (this platform can be used by any other person who wants to report, including anonymously, a bias-motivated incident).
Meetings with the minority communities have been organised by police community officers to consult them on issues relevant to those communities (555 such meetings were held in 2020).
E. Statistics
There has been an increase of the number of pre-trial investigations (and a decrease in the number of refusals) started under Article 170 of the Criminal Code, including on grounds of sexual orientation, after the Court’s judgment. 90 such pre-trial investigations were started in 2020 and 41 until 31 May 2021, compared to 22 in 2017, 22 in 2018 and 42 in 2019.
F. Establishment of an inter-institutional working group and adoption of an action plan 2021-2023 to promote non-discrimination
On 24 February 2020 an inter-institutional working group was formed, with the aim, inter alia, of raising awareness about hate crimes and hate speech; encouraging dialogue between vulnerable groups; exchanging good practices on prevention and investigation of such acts; increasing the effectiveness of the authorities’ response to such allegations; and preparing relevant recommendations (including on the ongoing monitoring of hate crimes, exchanges of good practices, strengthening the identification of hate crimes and the capacity of law enforcement bodies). The group is composed of representatives of the Ministry of Interior, the Police Department, the Prosecutor General’s Office, the Office of the Inspector of Journalist Ethics and representatives of Lithuanian non-governmental organisations and associations (including LGBTI organisations). In December 2020, the Minister of Social Security and Labour approved the Action Plan to Promote Non-Discrimination 2021-2023, one of its aims being the prevention of hate speech and hate crimes.
G. The authorities’ assessment of the measures taken
The authorities underline the progress made in individual and general measures, note that civil society (ILGA-Europe) have underlined the positive trends in implementation of the present judgment and invite the Committee of Ministers to transfer the present case to the standard procedure.
Analysis by the Secretariat
Individual measures
The rapid opening by the authorities of a pre-trial investigation into the applicants’ allegations of homophobic hate speech ex officio, soon after the judgment became final, and the multiple efforts taken so far to achieve concrete progress in this investigation are welcome developments. No further individual measures appear to be necessary as the measures taken respond to the Court’s criticism as to the failure to launch an investigation due to the discriminatory attitudes of the authorities.
General measures
The authorities have taken a range of comprehensive and multi-faceted measures to increase the capacity of the Lithuanian criminal justice system to adequately respond to hate speech and hate crimes and thus address the issues raised by the Court.
The adoption of methodological recommendations for the investigation of hate crimes by police and prosecution services, the specialisation of prosecutors and the review of previous decisions to examine whether bias-motivation was an element of a crime are measures that can be noted with satisfaction. The authorities should now take all the necessary measures to ensure the effective implementation of the new recommendations in practice.
The evolution of the domestic case-law, the capacity-building measures for the investigative authorities and the statistics indicating an increase of hate crime investigations in recent years can be noted with interest. The authorities should continue their efforts to identify and eliminate the challenges in investigating and prosecuting hate crimes. These next steps could include further specialisation of prosecutors and extension of specialisation to police officers, and systematic comprehensive initial and in-service training specifically focused on detecting and handling hate crimes, for police officers, prosecutors, as well as judges, possibly drawing on the Council of Europe’s expertise in order to ensure a Convention compliant application of the hate crime legislation, with particular emphasis on investigating the relevant causal links with discrimination.
The authorities should continue with their plans to improve registration and data collection on hate crimes, enabling them to acquire an integrated and consistent view of the prevalence of hate crime and the investigative and judicial authorities’ response to such crimes and thus to assess the need for additional or corrective action.
The preventive measures taken by the authorities so far and their determination to continue to monitor and improve their response to hate crimes and hate speech are welcome. In particular, it is positive that a specific inter-institutional group has been created with the participation of civil society. It is important now that the working group pursues its activity, in particular by finalising their comprehensive strategic plan to address both prevention of and response to hate crimes and hate speech.
Proposal to examine this case under the standard procedure
In view of the comprehensive measures adopted to date, the progress achieved and the authorities’ determination to continue their work to further enhance both prevention of and investigation into hate speech, the examination of these cases could continue under the standard procedure where the impact in practice and long-term stability of the measures can be assessed.
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Financing assured: YES |