Communicated on 4 March 2014

THIRD SECTION

Application no. 35558/06 Ion Sebastian BĂDIȚĂ against Romania lodged on 22 August 2006

STATEMENT OF FACTS

The applicant, Mr Ion Sebastian Bădiță , is a Romanian national, who was born in 1977 and lives in R âmnicu m V â lcea .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s letters in connection with C.O.A. ’ s selection for a scholarship abroad

On 29 September 2004 the applicant sent an electronic mail to the Faculty of Mathematics and Informatics (FMI) - University “Babes Bolyai ” (“UBB”) of Cluj Napoca requiring information about the way in which the faculty had selected the students to be sent abroad with an Erasmus scholarship. He further pointed out that he heard that C.O.A., one of his acquaintances, had been selected. He further expressed his doubts that she was meeting the eligibility criteria since according to his information she obtained poor grades during the four years of study at the university.

2. The applicant ’ s letters concerning C.O.A. ’ s appointment in a teaching position at the university

In December 2004 the applicant found out that C.O.A was occupying a vacant teaching position at FMI where she taught the subject “The Architecture of Computers”. On 8 December 2005 he sent a letter to FMI revealing that according to his knowledge C.O.A. was appointed in that teaching position without the observance of the minimum requirements provided by applicable legal provisions. In this respect he pointed out that: i ) the vacant teaching position was not publicly announced; ii) no competition was organised for the selection of personnel and iii) C.O.A. was not among the best graduate students, but on the contrary, she had poor grades and in addition, in the subject she was selected to teach she only obtained a mark of 6 (out of 10).

On 13 January 2005 the applicant sent a letter to the Cluj Labour Inspectorate (“CLI”) informing them about the infringement by FMI of the legal provisions of the Labour Code by employing the student C.O.A. to teach at the university. In its reply of 31 March 2005 CLI confirmed that C.O.A. was occupying a temporary vacant position based on the decision of the university ’ s rector. In a subsequent letter sent to the applicant on 4 March 2005, CLI stated that it had carefully examined the legal provisions concerning the selection of staff at university level and confirmed in principle his conclusions.

3. The comments posted on Internet

Finding out that fifteen other students were chosen to occupy teaching positions at FMI without a transparent selection procedure, the applicant decided to make the situation public on Internet , by posting comments on a site. Thus, on 8 February 2005 he posted comments under the title “Abuses at UBB - FMI”. He expressed his concerns about the way in which FMI had selected master students to occupy vacant teaching positions. He referred, among others, to C.O.A. ’ s situation without mentioning her name. In this context he stated that in his opinion C.O.A. had bribed somebody at the university in order to be selected. He pointed out that she had the mark 6 (out of 10) in the subject she was teaching. He posted on Internet the following:

“ I don ’ t think that we are talking about connections (“pile”) but about bribe ( “ m ă lai ” )... The girl gave... And now she received ... I suppose that she gave it ... in order to get a scholarship in England but because I informed the embassy and the chances to get visa were low, they gave her this post in compensation! I don ’ t have evidence in this respect, it ’ s just a guess!”

4. The registration of the applicant ’ s NGO

On 15 July 2005 the applicant together with eight other physical persons signed the statute for the registration of a non-profit organisation (“ NGO ”) called EDU CER with its headquarters in Bucharest . Its general aim was to stop the degradation of the education and research standards. Its main objectives were to note the abuses, unlawful acts and corruption in education and to supervise the way in which the State authorities observe the applicable legislation in these fields. By an interlocutory judgment of 20 September 2005, the Bucharest District Court ordered the registration of the applicant ’ s NGO in the Registry of Associations and Foundations kept by the court.

5. The criminal complaint against the applicant

On 25 February 2005, C.O.A. lodged a criminal complaint against the applicant for slander and defamation under Articles 205 and 206 of the Romanian Criminal Code into force at that time. She requested the hospitalisation of the applicant in a psychiatric centre and the payment of 30,000 Romanian lei (RON) in compensation for non-pecuniary damage.

She alleged that starting from the autumn of 2004 until February 2005 the applicant had submitted many petitions to the University and competent authorities invoking that she was not entitled to occupy a teaching position at FMI. Comments about her immoral and abusive behavior in this respect were posted by the applicant on a blog of the faculty.

a) The proceedings before the first-instance court

In September 2005 C.O.A. was heard before the court. She did not contest the veracity of the applicant ’ s statements. Moreover, the witnesses heard on her behalf did not contest the situation presented by the applicant.

By a judgment of 29 November 2005 the Cluj-Napoca District Court acquitted the applicant and dismissed C.O.A. ’ s civil complaint as unfounded.

Referring to defamation offence, the court held that the publicity of statements, an essential requirement of defamation was missing given that most of the applicant ’ s allegations were made in writing and addressed to public institutions. It further noted that although the requirement of publicity could be considered to be met in connection with the statements made by the applicant online, these statements did not refer to a certain person or to determined acts which could make possible C.O.A. ’ s identification. In respect of the slander offence the first-instance court noted that the applicant had only referred to the poor grades received by C.O.A. during her years of study at the university and had concluded that she did not meet the requirements to teach at the university level.

In his statements before the court the applicant pointed out that his intent was only to bring to the knowledge of the competent authorities the irregularities noted by him in the functioning of FMI so that the necessary measures were taken. He submitted to the court copies of the applicable laws and of a list of the grades obtained by C.O.A. and her colleagues. The court further noted that the applicant had not used insulting expressions but made general statements about C.O.A. ’ s professional ability to teach the students a subject in which she obtained poor grades. It also noted that according to a statement given before the court by FMI ’ s secretary, the applicant had sent letters to the university bringing to its attention similar situations concerning other students. The court concluded that the applicant could not be convicted of slander given that he had not acted with the intent to injure the honor or the reputation of C.O.A. The way he expressed his opinion was typical of a person who considers that somebody had obtained an unjust position or undeserved benefits.

b) The a ppeal proceedings

C.O.A. lodged an appeal asking for the conviction of the applicant.

On 8 March 2006 the Cluj County Court allowed the appeal. It quashed the judgment of the lower court and decided to re-try the case on the merits. It upheld the lower court ’ s decision to acquit the applicant but allowed C.O.A. ’ s civil claim and ordered the applicant to pay RON 2,000 (approximately 580 euros (“EUR”) to her for non-pecuniary damage. It also ordered the applicant to reimburse the costs of the proceedings amounting to RON 500 (approximately EUR 150) to C.O.A. and RON 160 (approximately EUR 50) to the State. It held that the first-instance court dismissed C.O.A. ’ s civil claim without examining whether the applicant could be held delictually liable for his statements. It noted that although the applicant ’ s conduct could not be considered criminal, he injured C.O.A. ’ s dignity and her professional reputation by the frequency of his statements, the way in which they were expressed, and the expressions used. However, the court neither referred to the veracity of the applicant ’ s statements nor tried to establish whether the elements of delictual liability were met.

B. Relevant domestic law

The relevant provisions of the Romanian Criminal Code concerning the offences of slander and defamation as applicable at the material time are described in Boldea v. Romania , (no. 19997/02, § § 16-18, 15 February 2007 ) .

COMPLAINTS

The applicant complains under Article s 6 and 10 of the Convention that his right of expression was infringed by the decision delivered by the Cluj County Court on 8 March 2006 . He claims that the aspects revealed by him about C.O.A. and other students of the same university were of public interest, namely the selection of students for Erasmus scholarships and the appointment of master students in temporary vacant positions at the university. He argues that the court of last resort failed to address his specific, pertinent and important arguments and to provide sufficient reasons for holding that he had committed a civil delict .

ITMarkFactsComplaintsEND

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention?

If so, was that interference necessary in terms of Article 10 § 2 of the Convention ?