PART FIVE: DISCRIMINATION AND EXPRESSION The Court found that the case law of the Supreme Court of Lithuania, as applied by the prosecutor, whose decision had then been upheld by the domestic courts, had not provided for an effective domestic remedy for complaints alleging homophobic discrimination. The case is an important recent example of tribunals ruling on hate speech on the basis of the law prohibiting discrimination. Courts at national and regional level have increasingly been ruling on hate speech cases through the prism of the ban on discrimination, including finding States in violation of international law for failing to take adequate action on hate speech. At the national level, for example, courts in Italy have applied legal provisions related to harassment – namely, creating a degrading atmosphere – to anti-migrant radio broadcasts.1156 In a recent case, also concerning Italy, the Court of Justice of the European Union ruled that statements made by a prominent lawyer on a radio programme, to the effect that his firm would never hire a gay person, amounted to discrimination in the field of employment, notwithstanding the fact that the firm in question was not in fact hiring at the time.1157 In a string of recent cases concerning hate speech against lesbian, gay, bisexual and transgender persons, antisemitic hate speech and anti-Roma hate speech, the European Court of Human Rights has held that the failure of authorities to effectively intervene in cases concerning, inter alia, online hate speech constitutes discrimination in relation to the right to respect for private and family life.1158 A. Advocacy of national, racial or religious hatred as well as in relation to disability, gender expression and gender identity, sex, sexual orientation, sex characteristics or other grounds 1156 Also, in cases involving former Minister for Integration Cécile Kyenge, Italian courts have ruled that statements by a district councillor on Facebook to “return to the jungle” constituted incitement to racial hatred (Court of Appeal of Trento, Penal Section, Italy v. Serafini, Case No. 315/2015, Judgment, 11 October 2015), and that comments on a radio programme by an Italian Member of the European Parliament, including that Ms. Kyenge came from “tribal traditions”, constituted discrimination-based offences (Tribunal of Milan, Borghezio v. Kyenge, Judgment, 18 May 2017). The Supreme Court of Italy has stated that statements by municipal councillors against Roma constitute criminal defamation (Supreme Court, Penal Section, Case No. 47894, Judgment, 22 November 2012). 1157 Court of Justice of the European Union, Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, Case C-81/12, Judgment, 25 April 2013; and NH v. Associazione Avvocatura per i diritti LGBTI, Case C-507/18, Judgment, 23 April 2020. 1158 European Court of Human Rights, Beizaras and Levickas v. Lithuania, Application No. 41288/15, Judgment, 14 January, 2020; Behar and Gutman v. Bulgaria, Application No. 29335/13, Judgment, 16 February 2021; and Budinova and Chaprazov v. Bulgaria, Application No. 12567/13, Judgment, 16 February 2021. 1159 “The terms ‘hatred’ and ‘hostility’ refer to intense and irrational emotions of opprobrium, enmity and detestation towards the target group” (Rabat Plan of Action, para. 21, footnote 5). The Human Rights Committee has stated, as concerns the International Covenant on Civil and Political Rights that: “Articles 19 and 20 are compatible with and complement each other. The acts that are addressed in article 20 are all subject to restriction pursuant to article 19, paragraph 3. As such, a limitation that is justified on the basis of article 20 must also comply with article 19, paragraph 3. See Human Rights Committee, general comment No. 34 (2011), para. 50. See also A/HRC/40/58, para. 57. 1160 Human Rights Committee, general comment No. 34 (2011), para. 11. 1161 A/74/486, paras. 9 and 12. PART FIVE Advocacy of national, racial or religious hatred1159 that constitutes incitement to discrimination, hostility or violence is proscribed under article 20 of the International Covenant on Civil and Political Rights. In addition, however, the protection of the right to non-discrimination – and to be free from discriminatory violence – necessitates protection from hate speech on other grounds. This approach is consistent with – indeed envisaged by – the recognition in article 19 (3) of the International Covenant on Civil and Political Rights of the fact that freedom of expression may be restricted, by law, where necessary for the protection of the rights of others.1160 As such, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has noted that: “Given the expansion of protection worldwide, the prohibition of incitement should be understood to apply to the broader categories now covered under international human rights law.”1161 The treaty bodies have called for States to take effective action to prohibit hate speech on a 179