FOURTH SECTION

DECISION

Application no. 79039/16 A.M.P. against Romania

The European Court of Human Rights (Fourth Section), sitting on 16 January 2024 as a Committee composed of:

Faris Vehabović, President , Anja Seibert-Fohr, Sebastian Răduleţu , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 79039/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 December 2016 by a Romanian national, A.M.P., who was born in 1954 and lives in Bucharest (“the applicant”) who was represented by Ms A. Herling, a lawyer practising in Bucharest;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged failure by the domestic courts in safeguarding the applicant’s right to reputation from alleged defamation and raises issues under Article 8 of the Convention.

2. The applicant, a professional violinist, held the position of concertmaster in the famous George Enescu Philharmonic Orchestra in Bucharest (“the orchestra”) at the material time.

3. On 28 September 2009 a memorandum signed by eighty-four members of the orchestra was made public. The memorandum conveyed a critical assessment of the applicant’s professional and personal qualities and called into question her suitability for the position of concertmaster within the orchestra.

4. The memorandum had been submitted to various public institutions such as the President of Romania, the Prime Minister, the Minister of Culture, the President of the Culture Commission within the Chamber of Deputies and the Culture Commission in the Senate, the Mayor of Bucharest, and the Government Control Authority.

5. On an unspecified date, the applicant initiated defamation proceedings against thirteen members of the orchestra and the Trade Union of the Philharmonic, asserting that the memorandum of 28 September 2009 had inflicted significant damage to her dignity, honour, image, and professional reputation. She highlighted several statements in the memorandum, that she deemed defamatory:

- The applicant displayed a hostile and unprofessional attitude on stage during rehearsals or in private settings;

- The applicant held the position of concertmaster prior to the year 1990, when she competed for the position before a commission composed of persons who lacked specialised artistic training;

- In 1990, the members of the orchestra formally requested and obtained the applicant’s removal from her position as concertmaster. However, she was subsequently temporarily reinstated to the position, only to be permanently retained by the Philharmonic’s director;

- The applicant did not have a legally valid employment contract;

- The applicant’s level of professionalism did not align with the expectations associated with the title of concertmaster in a modern European symphony orchestra;

- The applicant had taken abusive measures in respect of orchestra employees, despite lacking the authority to do so;

- The applicant subjected members of the orchestra to humiliating and demeaning treatment, causing psychological distress. Some artists experienced physical and mental deterioration, suffering from memory loss, stress, and even strokes;

- The applicant jeopardized the organization of an event sponsored by the Bucharest City Hall, which was scheduled for September 2009 to celebrate the city’s anniversary.

6. Furthermore, the applicant submitted that on 28 September 2009, a discussion took place on the stage of Philharmonic orchestra between the orchestra members and the management of the George Enescu Philharmonic, in the presence of the Minister of Culture. During the discussion, the orchestra members allegedly made multiple insulting and false statements about her. For instance, they claimed that one of the orchestra members had suffered a stroke due to the claimant’s behaviour. Additionally, the applicant stated that during the discussion, one of the orchestra members read the memorandum dated the same day. Furthermore, it was alleged that one of the musicians made a statement indicating that “the press is downstairs” thereby implying a potential threat to expose the scandal publicly.

7. The applicant also contended that from 12 to 16 October 2009, she had encountered difficulties in fulfilling her responsibilities as concertmaster. The orchestra members allegedly refused to perform alongside her while wearing t-shirts bearing the printed inscription “We are the George Enescu Philharmonic”. As a result, the claimant asserted that she was unable to carry out her duties effectively during rehearsals.

8. The applicant further indicated that during the rehearsals of 12 ‑ 13 October 2009, defendant A.D. made insulting statements about her, without specifying what statements. Defendant B.D. stated that the applicant had no legally valid employment contract, while defendant B.L. made ironic statements during the rehearsals concerning the applicant’s professionalism and her working methods. Defendant C.D. stated during a rehearsal that the applicant should attend rehabilitation for a while so that the orchestra could hold the planned concert. He also stated during a televised show that the applicant should have been demoted instead of promoted. Defendant G.G. stated in a newspaper interview on 10 December 2009 that the orchestra had succeeded in removing the applicant from her position. Defendant G.I. stated, during the rehearsal of 12 October 2009, that he played Romanian and not Serbian music, thus making remarks concerning the Serbian origin of the applicant and about her lack of professionalism. Defendant P.D. stated, during the rehearsal of 12 October 2009, that the applicant no longer had the necessary moral authority required by a concertmaster. Defendant P.C. stated, in an interview for a newspaper, that she was unhappy during the daily rehearsals with the applicant. Defendant S.S. stated, during the rehearsal of 13 October 2009, that the applicant was not lawfully occupying her position and that even “Ceausescu also passed through a competition”. Defendant S.C. stated, during rehearsals between 12 and 13 October 2009 that the applicant had not undergone a competition and that she had no employment contract for an undetermined period. Defendant S.I.B. stated, in an interview for a newspaper on 15 October 2009, that the situation at the Philharmonic could be solved only by removing the applicant from the position of concertmaster and the organisation of a new competition. The same defendant stated, in another interview on 21 October 2009 that none of the members of the orchestra would ever play together with the applicant and that the applicant retorted once to an orchestra conductor with the words: “probably that’s how they conduct in Târgoviște.” He also said that the decision of the head of the Philharmonic to keep the applicant amounted to a dictatorial behaviour and that the applicant’s employment contract mentioned that she was hired as an instrumentalist but not as a concertmaster.

9. The applicant further accused the Trade Union that they had published the memorandum of 28 September 2009 on their website and had submitted a second memorandum to the authorities, wherein she was accused of collaborating with the intelligence services during the era of Ceauşescu. Additionally, the applicant alleged that the Trade Union had dispatched an email to the press on 10 November 2009, making allegations of substantial financial misconduct by her and the management of the Philharmonic, involving misappropriation of significant funds from the orchestra’s budget.

10. The applicant requested that the defendants who were members of the orchestra, be held liable for the payment of damages for the moral harm caused to her, in the amount of 10,000 lei (RON) each. As for the Trade Union, the applicant requested the retraction of the memorandum from its website and payment of damages in the amount of RON 30,000.

11. On 1 March 2012, a Bucharest District Court dismissed the applicant’s action deeming it unfounded.

12. In relation to the memorandum signed by eighty-four orchestra members (see paragraph 5 above), the court, having heard testimonies from various witnesses, including the applicant, and having examined documentary evidence, determined that the allegations pertaining to the applicant’s discourteous and antagonistic conduct towards her fellow orchestra members were accurate. The court, among other findings, established that the applicant consistently resorted to offensive language and gestures in her interactions with colleagues, and that she displayed a propensity to report even the most minor incidents involving her colleagues to superiors.

13. As for the claim made in the memorandum that the applicant attained the position of concertmaster through a competition overseen by a commission comprised of individuals lacking specialized artistic training, the court deemed it to be unfounded. It acknowledged that, prior to 1990, the selection commissions did include individuals from political circles alongside professional artists; however, those individuals did not possess voting rights. Nevertheless, the court ascertained that this statement had minimal impact since it had not been published by any newspaper. Consequently, it could not be regarded as defamatory of the applicant.

14. Regarding the claim made in the memorandum that the applicant was removed from the position of concertmaster in 1990 due to a request made by members of the orchestra, the court, based on the evidence presented, concluded that it was accurate.

15. In respect of the impugned statement concerning the organization of an event sponsored by the Bucharest City Hall in September 2009, the court observed that the applicant did not contest its accuracy.

16. Based on the aforementioned findings, the court reached the conclusion that the impugned statements contained in the memorandum did not cause any harm to the applicant’s reputation.

17. With regard to the impugned statements made during the meeting of 28 September 2009 (see paragraph 6 above), the court deemed them to be opinions shared in a live discussion within the premises of the Philharmonic, involving both the orchestra members and the management. It was concluded that these statements did not bear significant public impact. Regarding the statement asserting that one of the orchestra members had suffered a stroke due to the applicant’s conduct, the court considered it as an inaccurate statement of fact, promptly disavowed by the individual in question, with all those present gaining an accurate understanding of the actual circumstances. Similarly, the court determined that the comment made by an orchestra member regarding the presence of the press “downstairs” did not amount to defamation against the applicant.

18. In relation to the matter concerning the orchestra members wearing t ‑ shirts bearing the inscription “We are the George Enescu Philharmonic” during rehearsals (see paragraph 7 above), the court concluded that the applicant’s allegation of defamation could not be reasonably substantiated. The court determined that the said event should not be construed as an act of defamation, but rather as an exercise of the freedom of expression.

19. With regard to the impugned statements made by individual defendants (see paragraphs 8-10 above), the court assessed that those statements which constituted statements of fact were made during a live exchange between the applicant and the defendants during rehearsals. Due to their limited impact and regardless of their accuracy, these statements did not meet the threshold to be considered defamatory. As for the remaining impugned statements, they were also found to be non-defamatory of the applicant. This determination was reached either because those statements constituted opinions protected under the freedom of expression, or because the applicant failed to substantiate their origin.

20. In relation to the Trade Union (see paragraph 9 above), the court rejected all claims made by the applicant, as she was unable to demonstrate that the alleged facts could be attributed to the Trade Union. Specifically, the court observed that the applicant failed to provide evidence establishing ownership of the website on which the memorandum was published, thus failing to establish a connection with the Trade Union. Similarly, this lack of proof extended to the email sent to the press on 10 November 2009. As a result, the court dismissed the applicant’s claims in this regard.

21. The applicant lodged an appeal against the above judgment, but it was dismissed by the Bucharest Regional Court on 3 July 2014. Furthermore, on 9 June 2016, the Bucharest Court of Appeal rejected the applicant’s appeal on points of law and upheld the rulings made by the lower courts.

THE COURT’S ASSESSMENT

22. The applicant complained that the domestic courts’ failure to grant her claims against the defendants had breached her right to her reputation as guaranteed by Article 8 of the Convention. The Government disagreed and argued that the complaint was inadmissible.

23. The general principles concerning protection afforded by Article 8 to the right to reputation as part of the right to respect for private life have been summarized in Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-99, ECHR 2012, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 82-84, 7 February 2012, and Pfeifer v. Austria , no. 12556/03, § 35, 15 November 2007).

24. Turning to the facts of the present case, the Court notes from the outset that the statements deemed defamatory by the applicant were made within the context of a work-related conflict between her and members of the George Enescu Philharmonic orchestra. In the Court’s opinion, the applicant in her capacity as concertmaster of the Philharmonic, can be regarded as a public person. Moreover, the subject matter of the conflict holds potential public interest, as it pertains to the good functioning of the famous Philharmonic.

25. The domestic courts conducted a comprehensive analysis of the memorandum dated 28 September 2009 (see paragraph 5 above) and duly observed that it had been circulated among a restricted group of officials (see paragraph 4 above) and had also been published on a website whose ownership was unidentified (see paragraph 20 above). Concerning its content, the domestic courts, having heard testimonies and examined evidence, determined that most of the factual assertions contained therein were grounded in truth (se paragraphs 12, 14 and 15 above). Although one statement regarding the composition of the commission overseeing the applicant’s employment competition prior to 1990 was found to be partly inaccurate (see paragraph 13 above), the domestic courts concluded that, given the limited impact of this statement, it could not be deemed defamatory toward the applicant. For the Court, not only did the memorandum have a limited impact (see Sofranschi v. Moldova , no. 34690/05, § 33, 21 December 2010), but also the sole statement found to be inaccurate did not possess sufficient gravity to negatively impact the applicant’s reputation. Therefore, the Court discerns no reason to call into question the solution given by the domestic courts in respect of the memorandum of 28 September 2009.

26. With regard to the remaining impugned statements, the domestic courts conducted a thorough examination of each of them and determined that the majority of them were made during rehearsals, away from public scrutiny and that, therefore, they also had a limited impact. Furthermore, it is noteworthy that these statements were of an oral nature, exchanged in real ‑ time between the applicant and members of the orchestra thus reducing or eliminating the defendants’ possibilities of reformulating, perfecting or retracting them (see Fuentes Bobo v. Spain , no. 39293/98, § 46, 29 February 2000). The Court is therefore satisfied with the solution given by the domestic courts in respect of these impugned statements too.

27. Finally, the Court notes that the statements possessing the greatest potential to inflict harm upon the applicant’s reputation purportedly surfaced in a secondary memorandum allegedly disseminated by the Trade Union, as well as in an email purportedly dispatched by the Trade Union to the press on 10 November 2009. They pertained to allegations of financial impropriety attributed to the applicant, as well as her alleged connections with the secret services of the Ceausescu regime (see paragraph 9 above). However, the domestic courts rejected these allegations on the ground that the applicant had failed to substantiate that the aforementioned statements were indeed authored or circulated by the defendant Trade Union.

28. Having carefully examined the materials of the case, the Court is satisfied that the domestic courts made a thorough examination of the case before them and balanced the opposing interests involved, in conformity with Convention standards, relying on grounds which were both relevant and sufficient. In the light of the above considerations, the Court concludes that the domestic courts struck a fair balance between the defendants’ freedom of expression under Article 10 and the applicant’s right to have her honour and reputation respected under Article 8. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 February 2024.

Crina Kaufman Faris Vehabović Acting Deputy Registrar President