AS TO THE ADMISSIBILITY OF
Application No. 11914/86
by Charles CUNNINGHAM
against Sweden
The European Commission of Human Rights sitting in private
on 7 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 August 1983
by Charles CUNNINGHAM against Sweden and registered on 3 January 1986
under file No. 11914/86;
Having regard to the reports provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the Government's written observations of
23 November 1989 and the applicant's written observations of
15 January 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the parties'
submissions, may be summarised as follows.
The applicant is a national of the United States of America,
born in 1930 and resident at Johanneshov, Stockholm. Before the
Commission he is represented by Mr. Jan Humlekil, a lawyer practising
in Stockholm.
The applicant has rented a two-roomed flat at Johanneshov since
1 August 1980. The landlord is Aktiebolaget Svenska Bostäder, a limited
liability company. It is a company which is at least partly publicly
owned and the aim of which is to provide housing without giving profit
to its owners. Aktiebolaget Svenska Bostäder is connected with the
Federation of Public Utility Housing Companies (Sveriges allmännyttiga
bostadsföretag, "SABO").
The tenancy agreement between the applicant and the landlord
contains a negotiation clause (förhandlingsklausul), which is worded
as follows:
"The landlord and the tenant undertake, without notice of
termination of the tenancy agreement having been given, to
observe those rules governing the rent or other rent
conditions, the state of the flats and the building, joint
facilities within the building and other housing conditions of
common interest to the tenants concerned, which have been
agreed or may be agreed according to the agreement in force on
the system of negotiations (förhandlingsordning) between a
landlord and a tenants' organisation affiliated to the
National Tenants' Union (Hyresgästernas Riksförbund)".
Such an agreement, a negotiation agreement, is in force between
the landlord and a tenants' union, the Tenants' Union of Metropolitan
Stockholm (hyresgästföreningen i Stor-Stockholm). In accordance with
this agreement, the landlord and the Tenants' Union regularly review
the rent for the flats in the house in which the applicant lives. As
compensation for its work in conducting the negotiations, the Tenants'
Union receives 0.3% of the rent from the landlord.
In April 1979 joint recommendations were adopted by SABO and
the National Tenants' Union concerning leisure activities and
consultation with tenants (boendeinflytande). The landlord company and
the Tenants' Union have concluded one agreement concerning leisure
facilities and one concerning consultation with tenants.
Under the agreement on the consultation with tenants the
Tenants' Union is entitled to compensation for the functions which it
has under the agreement. The compensation shall correspond to 0.4% of
the rents (including heating costs) in all the flats covered by the
agreement. The compensation is included in the rents agreed through
the rent negotiations. Under the agreement on leisure facilities the
Tenants' Union is to receive 0.5% of the annual rents of the flats in
the properties covered by these facilities. The compensation is added
to the rent calculations concerning the landlords' costs or the rents
agreed upon.
The applicant gave notice to terminate his tenancy agreement
for the purpose of changing the conditions of the agreement in
accordance with Chapter 12, Sections 54 and 55 of the Land Act
(jordabalken). He subsequently referred the dispute to the Rent Board
(hyresnämnden) of Stockholm County, where he claimed inter alia that
his rent be reduced by 1.2%, which amount was paid by the landlord to
the Tenants' Union, and that the negotiation clause be removed from his
tenancy agreement. The applicant also challenged the two lay assessors
of the Rent Board.
The challenge was rejected by the President of the Rent Board
on 22 February 1984. On 7 March 1984 the Rent Board delivered its
decision rejecting the applicant's claims.
The applicant appealed to the House and Tenancy Court
(bostadsdomstolen). The applicant argued that he was forced to accept
the negotiation clause, since the landlord did not accept a tenancy
agreement which did not include that clause. He also stated that his
sight was reduced and that for that reason he was not able to read the
text in the lease. Furthermore, the negotiation clause involved an
approval in blanco of future and, thus, to the applicant unforeseeable
circumstances. This disproportion, in his view, had systematically
been exploited by the landlord and the Tenants' Union. The activities
concerning development of tenants' leisure facilities and arrangements
for consultation with tenants, to which he had to contribute by virtue
of the negotiation clause, could be criticised in several respects.
Among other things, the tenants who, like the applicant, were not
members of the Tenants' Union, had no influence on these activities.
On these grounds, he should be entitled to a reduction of the rent,
corresponding to the 0.9% that was paid for these activities. The
Tenants' Union also conducted the rent negotiations poorly. The
applicant therefore was entitled to a rent reduction corresponding to
the amount paid for rent negotiations, 0.3%.
On 9 July 1985 the House and Tenancy Court rejected the
appeal. One of the professional judges dissented. He considered that
the agreements relating to the protection of tenants and the agreement
on leisure facilities discriminated against the applicant in that he
was not a member of the Tenants' Union. The Court was composed of seven
judges, of which three were professional judges and four were lay
assessors. The four lay assessors were Mr. E. Olsson, Managing Director
of SABO, Mrs. M. Andréasson-Frohnert, Head of Division at SABO,
Mrs. S. Johansson, Ombudsman at the National Tenants' Union, and
Mr. S. Gustafsson, Member of Parliament for the Social Democrats.
COMPLAINTS
1. The applicant complains that as a result of the participation
of the lay assessors his case before the Rent Board and the House and
Tenancy Court has not been determined by an independent and impartial
tribunal. Consequently he alleges a violation of Article 6 of the
Convention.
2. The applicant moreover alleges a violation of Article 1 of
Protocol No. 1 to the Convention and claims to be the victim of
discrimination contrary to Article 14 of the Convention in conjunction
with Article 1 of Protocol No. 1 based on his status of not being a
member of the Tenants' Union.
3. Originally the applicant also alleged violations of Articles 8
and 11 of the Convention. These complaints were subsequently withdrawn.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 August 1983 and registered
on 3 January 1986.
On 9 November 1987 the Commission decided to communicate the
application to the respondent Government without asking for written
observations pending the outcome of the Langborger case.
On 22 June 1989 the European Court of Human Rights delivered
judgment in the Langborger case (Series A no. 155).
On 6 September 1989 the Commission decided to invite the
Government to submit written observations on the admissibility and
merits of the application limited to the issues under Article 6 of the
Convention.
The Government's observations were received by letter dated
23 November 1989 and the applicant's observations were dated
15 January 1990.
THE LAW
1. The applicant alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that the Rent Board and the
House and Tenancy Court cannot be regarded as impartial tribunals.
Article 6 para. 1 (Art. 6-1), first sentence reads as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
The Commission considers that the issue which arises is whether,
in the circumstances of the case, the House and Tenancy Court satisfied
the conditions of being an "independent and impartial tribunal" within
the meaning of Article 6 para. 1 (Art. 6-1).
The Government waive objections against the admissibility of
this complaint and admit that there has been a violation of Article 6
para. 1 (Art. 6-1) in this respect.
The Commission finds that this complaint cannot be regarded as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. As no other ground for declaring it
inadmissible has been established, this complaint is admissible.
2. The applicant originally complained of violations of Articles 8
(Art. 8) and 11 (Art. 11) of the Convention. However, in the light of the
judgment in the Langborger case, he has withdrawn these complaints.
The Commission finds no reason to examine these complaints.
3. The applicant also complains that there has been a violation of
Article 1 of Protocol No. 1 (P1-1) to the Convention on the ground
that he has to make financial contributions to the Tenants' Union.
Unable to establish the exact amount, the applicant estimates that he
has paid 10,000 SEK to the Union during the period 1979 to 1989.
Article 1 of Protocol No. 1 (P1-1) reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles
of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
The Commission recalls that a similar complaint was made in the
Langborger case. In that case the Commission observed (Langborger v.
Sweden, Comm. Report 8.10.87, paras. 158-159, Eur. Court H.R., Series A
no. 155, p. 36) that the applicant had freely entered into the tenancy
agreement according to which the future rent was fixed after negotiations
between the Tenants' Union and the landlords' union. The Commission
considered that in view of the low percentage and amount involved - 0.3%
of the rent in that case - the applicant had failed to substantiate an
interference with his right under Article 1 of Protocol No. 1 (P1-1). This
view was confirmed by the Court (see above-mentioned Langborger judgment,
p. 17, para. 41).
The Commission considers that similar considerations apply in
the present case. Although the amount involved is higher in this case,
the Commission finds no indication of a violation of Article 1 of
Protocol No. 1 (P1-1).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
4. Finally, the applicant alleges a violation of Article 14
(Art. 14) of the Convention in conjunction with Article 1 of Protocol
No. 1 (P1-1).
Article 14 (Art. 14) reads as follows:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."
According to the case-law of the Convention organs, Article 14
(Art. 14) of the Convention has no independent existence, but
supplements the other provisions of the Convention and the Protocols.
Article 14 (Art. 14) safeguards individuals, placed in similar
situations, from discrimination in the enjoyment of the rights set
forth in those other provisions. A measure which as such could be in
conformity with the normative provision may therefore nevertheless
violate that provision taken in conjunction with Article 14 (Art. 14),
if it is applied in a discriminatory manner. It is as if Article 14
(Art. 14) formed an integral part of each of the provisions laying
down the specific rights and freedoms. The Convention organs have
furthermore constantly held that a distinction is discriminatory if it
"has no objective and reasonable justification", that is, if it does
not pursue a "legitimate aim" or if there is not a "reasonable
relationship of proportionality between the means employed and the aim
sought to be realised" (Eur. Court H.R., Inze judgment of 28 October
1987, Series A no. 126, p. 17, para. 36 and p. 18, para. 41).
The discriminatory treatment alleged by the applicant is the
difference between members and non-members of the Tenants' Union with
regard to the organisation of the activities based on the agreements on
leisure facilities and consultation with tenants. The applicant submits
that in practice the Tenants' Union has organised the activities in
such a way that they are controlled by members of the Tenants' Union.
From the accounts given by the Tenants' Union, it appears, according to
the applicant, that only 3.80 SEK per household is in fact allocated by
the Tenants' Union to activities regarding leisure facilities and for
the consultation with tenants. The applicant points out that in fact
no such activity whatsoever has been organised in his area.
The Commission considers that the applicant's arguments mainly
relate to the issue under Article 1 of Protocol No. 1 (P1-1) and,
insofar as they are relevant to the issue under Article 14 (Art. 14) of the
Convention, they suggest, as no activities have been organised, that
the applicant has not in a significant way been treated differently
from other tenants in his area, be they members or not of the Tenants'
Union. In all circumstances, the Commission finds no indication of a
violation of Article 14 (Art. 14) of the Convention.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES ADMISSIBLE, without prejudging the merits, the
complaint that the applicant's case was not determined by an
"independent and impartial tribunal" (Article 6 para. 1 (Art. 6-1)
of the Convention);
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy