PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation developed doctrines to the effect that it is not possible to rely on the provisions of the European Convention on Human Rights in cases in which the appellant aims to destroy human rights.1154 HATE SPEECH AS DISCRIMINATION: ADDRESSING STATES’ RESPONSIBILITY TO PROTECT INDIVIDUALS FROM HOMOPHOBIC HATE SPEECH In January 2020, the European Court of Human Rights considered the refusal by the Lithuanian authorities to investigate and sanction online hate-speech comments. The case arose after a photograph depicting a same-sex kiss was published on Facebook in Lithuania. Pijus Beizaras and Mangirdas Levickas had received hundreds of hateful online comments. These had been aimed at inciting hatred and violence against lesbian, gay, bisexual and transgender persons in general, as well as personally at the two men. In December 2014, the National Lesbian, Gay, Bisexual and Transgender Rights Association lodged a complaint with the prosecutor general’s office alleging violation of article 170 of the Criminal Code (incitement against any national, racial, ethnic, religious or other group of persons) and article 19 of the Law on the Provision of Information to the Public, which similarly prohibits incitement to hatred or violence in the media. The domestic courts took decisions not to initiate an investigation. The Klaipėda City District Court, for example, dismissed an appeal by the National Lesbian, Gay, Bisexual and Transgender Rights Association by pointing out that “a picture ‘of two men kissing’ should and must have foreseen that such ‘eccentric behaviour really did not contribute to the social cohesion of those who had different views or to the promotion of tolerance” and “‘the majority of Lithuanian society very much appreciate[d] traditional family values’”. In its ruling in the case, the European Court of Human Rights held that Lithuania had violated article 14 (prohibition of discrimination) of the Convention taken in conjunction with article 8 (right to respect for private and family life) and that article 13 (right to an effective remedy) had also been violated by the Lithuanian authorities. In the course of its ruling, the Court recalled an extensive list of principles within its settled case law, including that the “the hallmarks of a ‘democratic society’” include “pluralism, tolerance and broadmindedness”; that “pluralism and democracy are built on genuine recognition of, and respect for, diversity”; and that “criminal sanctions, including against the individuals responsible for the most serious expressions of hatred, inciting others to violence, could be invoked only as an ultima ratio measure …. That being so, it has also held that where acts that constitute serious offences are directed against a person’s physical or mental integrity, only efficient criminal-law mechanisms can ensure adequate protection and serve as a deterrent factor …. The Court has likewise accepted that criminal-law measures were required with respect to direct verbal assaults and physical threats motivated by discriminatory attitudes.”1155 178 1154 See, for example, the unanimous decision of the European Court of Human Rights in ruling inadmissible a petition by Jean-Marie Le Pen following his criminal conviction by a French court and fine of 10,000 euros for incitement to discrimination, hatred and violence towards a group of persons because of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion: “The authorities’ interference with Mr Le Pen’s freedom of expression, in the form of a criminal conviction, had been prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others. The Court reiterated that it attached the highest importance to freedom of expression in the context of political debate in a democratic society, and that freedom of expression applied not only to ‘information’ or ‘ideas’ that were favourably received, but also to those that offended, shocked or disturbed. … In this case, however, Mr Le Pen’s comments had certainly presented the ‘Muslim community’ as a whole in a disturbing light likely to give rise to feelings of rejection and hostility. He had set the French on the one hand against a community whose religious convictions were explicitly mentioned and whose rapid growth was presented as an already latent threat to the dignity and security of the French people. The reasons given by the domestic courts for convicting the applicant had thus been relevant and sufficient. Nor had the penalty imposed been disproportionate. The Court found that the interference with the applicant’s enjoyment of his right to freedom of expression had been ‘necessary in a democratic society’. His complaint was accordingly rejected.” See European Court of Human Rights, Le Pen v. France, Application No. 18788/09, Decision, 20 April 2010 (although the official version of the decision is only available in French, the quotation above appears in a press release issued by the Registrar of the Court). This approach is generally grounded in article 17 of the European Convention on Human Rights, which establishes that “nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein”. 1155 European Court of Human Rights, Beizaras and Levickas v. Lithuania, Application No. 41288/15, Judgment, 14 January 2020, paras. 106–111.