Information Note on the Court’s case-law No. 94
February 2007
Boldea v. Romania - 19997/02
Judgment 15.2.2007 [Section III]
Article 10
Article 10-1
Freedom of expression
Imposition of a fine for defamatory allegation of plagiary: violation
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Failure by a court to address the defendants’ submissions and arguments when imposing an administrative fine: violation
Facts: The applicant is a university lecturer. At a meeting of the teaching staff in his department during which it emerged that there was general dissatisfaction with regard to the publications produced within the department, the Dean of the faculty raised the subject of alleged plagiarism in scientific publications. The applicant was the only participant who considered unreservedly that the publications of two authors amounted to plagiarism. The authors were issued with a verbal warning and their publications were merely held not to constitute works of scientific reference. They lodged two separate complaints against the applicant alleging defamation, which were joined by the court of first instance. The court heard evidence from the applicant and accepted his offer to prove the truth of his remarks on the basis of the Criminal Code. The applicant produced the complainants’ articles and the relevant extracts from the doctoral thesis which had allegedly been plagiarised. The court then took statements from two witnesses who had taken part in the meeting. The first witness said that the complainants’ publications did not amount to plagiarism and that the applicant had made his remarks in bad faith. The second stated that he could not comment on the alleged plagiarism or the applicant’s intentions in describing his colleagues as plagiarists. The court acquitted the applicant but ordered him to pay an administrative fine and to pay the complainants’ costs. The applicant appealed, arguing as his main submission that the court had not given reasons to justify its decision based on the evidence adduced during the proceedings both by the applicant himself and by the complainants, especially in view of the fact that it had been provided with proof of the veracity of his remarks in accordance with the Criminal Code. He further complained that the first-instance court had simply found him to have acted in bad faith without basing its decision on any evidence and without taking account of the legislation on copyright and related rights. The complainants also appealed against the first-instance judgement. The appeals were dismissed by the county court.
Law: Article 6(1) – The court of first instance had not carried out an interpretation of all the essential elements of the offence or examined the evidence adduced by the applicant, apart from dismissing some which it considered to be irrelevant, giving reasons. Furthermore, the court which had dealt with the applicant’s appeal had not addressed any of his grounds of appeal, concerning in particular the lack of reasons in the first-instance judgment, simply referring back to the recitals of the judgment. These factors were sufficient basis for concluding that both courts had failed to give adequate reasons for their decisions and that the applicant had not been given a fair hearing in the proceedings in which he was ordered to pay an administrative fine.
Conclusion: violation (unanimously).
Article 10 – The decisions of the first-instance court and the county court amounted to interference with the applicant’s right to freedom of expression. The courts’ decisions finding against him had been based on domestic law provisions that were accessible and foreseeable. The interference complained of had pursued a legitimate aim, namely the protection of the reputation of others, in this case the applicant’s two colleagues whom he had accused of plagiarism. As to whether the interference had been necessary in a democratic society, the applicant had been tried on a charge of damaging the honour and public image of his colleagues, whom he had accused of certain acts such as plagiarism. But while the applicant’s allegations had been serious, they had had a factual basis. Accordingly, they had not been unfounded and had not been designed to fuel a smear campaign against his colleagues. The statements in question had not concerned aspects of their private lives but conduct relating to their capacity as academics. There had been a general feeling of dissatisfaction with recent publications produced within the department and a meeting had been called by the Dean of the faculty. The topic had indisputably been one of general interest for the department. Hence, the applicant’s assertions had merely reflected his professional opinion, expressed in the course of the meeting. The remarks had been made orally, so that he was unable to reformulate, emend or retract them. In addition, the applicant had taken an interest in the proceedings, attending all the hearings, giving reasons for his appeal, submitting written observations and producing evidence to substantiate his allegations or provide them with a sufficient factual basis. All these elements demonstrated that he had acted in good faith. The domestic courts had not examined the evidence produced by the applicant at the hearings and had not given reasons for their decisions. The national authorities had not given relevant and sufficient reasons to justify ordering the applicant to pay an administrative fine and pay the complainants’ costs. The fine imposed on him had therefore not met a pressing social need.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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