AS TO THE ADMISSIBILITY OF
Application No. 14654/89
by Per HEDÉN
against Sweden
The European Commission of Human Rights sitting in private
on 6 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 25 February 1988
by Per HEDÉN against Sweden and registered 16 February 1989 under
file No. 14654/89;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen born in 1941 and resident
at Gothenburg. He receives early retirement pension.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1987 the applicant requested his landlord to repair or
change the refrigerator installed by the landlord. Following the
landlord's refusal the applicant deducted the costs of the repair from
his rent and deposited the same amount at the County Administrative
Board (länsstyrelsen) of Gothenburg and Bohus County.
In September 1987 the applicant's landlord brought an action
for debt recovery (lagsökning) before the District Court (tingsrätten)
of Gothenburg, claiming a rent debt in the amount of 3,000 SEK which
had fallen due for payment. He further requested that the applicant
immediately be evicted from the apartment.
Following a written exchange of views between the parties the
District Court on 12 January 1988 ordered the applicant to pay the
debt and immediately leave the apartment.
By way of a petition which arrived at the District Court on
18 January 1988 the applicant requested the proceedings to be resumed
(begäran om återvinning) and the execution of the decision of
12 January 1988 to be stayed.
On 20 January 1988 a request by the landlord that the
applicant be evicted and that execution be levied on his property
arrived at the Enforcement Office (kronofogdemyndigheten) of
Gothenburg.
On the same day the District Court opened a file for the
proceedings to be resumed.
On 8 February 1988 the District Court summoned the parties to
an oral preparation of the case on 8 March 1988.
On 11 February 1988 the applicant was notified of the eviction
which was to take place on 23 February 1988. The notice was served
upon the applicant by the Enforcement Office in a closed envelope
which was put in his letter-box.
On 23 February 1988 the applicant was evicted from his
apartment.
On 8 March 1988 the District Court, at the parties' request,
decided to strike the case off its list, the applicant having inter
alia agreed to pay a certain amount of money to the plaintiff.
The applicant was represented by lawyer.
Subsequently, the applicant, no longer legally represented,
appealed against this decision to the Court of Appeal of Western
Sweden (hovrätten för västra Sverige). The appeal was rejected as
being out of time.
The eviction order of 23 February 1988 was upheld on
11 May 1988 by the Court of Appeal to which the applicant had
appealed. On 26 August 1988 the Supreme Court (Högsta domstolen)
refused leave to appeal.
The applicant subsequently reported the District Court to the
Parliamentary Ombudsman (justitieombudsmannen) for the fact that the
Court had not notified the Enforcement Office in writing of the
suspension of the execution. He further reported the Enforcement
Office for the fact that he had not been informed that the decision of
12 January 1988 was going to be executed.
In her statement to the Parliamentary Ombudsman the Chief
Judge of the District Court referred to a written statement by the
judge in charge of the applicant's case. The judge stated the
following:
"By way of written petition of 18 January 1988 Hedén
requested that the proceedings be resumed and that the
execution of the decision of the District Court of
12 January 1988 in the debt recovery matter be stayed.
Following an inquiry by the District Court the Enforcement
Office informed the Court that no request for execution of
the decision was pending... On 5 February 1988 I agreed
by telephone with the secretary of [the creditor's
representative] that the first meeting between the parties
in the case would be held on 8 March 1988. The secretary at
the same time undertook to see to it that the Enforcement
Office be requested to stay the execution [of the decision
of 12 January 1988], if such a request for execution had
been submitted, pending the outcome of the request that the
proceedings be resumed. In other cases I have often relied
on such an undertaking by telephone given by plaintiffs'
representatives who have been well known to me. I have
therefore not issued any order that execution be stayed.
This way of proceeding has not previously led to any
complication. Therefore, in the case at issue I did not
issue any suspension order. Apparently, I have to be a
little more careful in the future when it comes to relying
trustfully on informal undertakings and therefore refraining
from issuing an order that execution be stayed."
The Chief Judge added:
"The practice at the District Court is immediately to make a
decision in matters regarding stay of execution. This is clear
from my inquiry to numerous judges at the District Court.
The statement by B.O. shows that he will also in the future
follow this practice. The District Court naturally regrets
what has happened."
The following is an extract from the statement of 7 April 1988
to the Parliamentary Ombudsman submitted by the Director of the
Enforcement Office:
"...
Had Hedén awaited the arrival of the official instead of leaving
[his apartment] and had he explained to him that a request
for stay of execution was pending, the District Court could have
been contacted in order to inquire whether a decision [upon that
request] had been issued.
...
Before an official who is going to carry out an eviction
leaves the Enforcement Office [he] should ascertain
whether stay of execution has been granted or whether a
decision to stay execution has arrived. It is very rare
and unfortunate that a decision is issued as late as in
Hedén's case."
The following is an extract from the additional statement of
25 April 1988 submitted to the Parliamentary Ombudsman by the
Director of the Enforcement Office:
"The working instructions for the Enforcement Office of 1979
state that great efforts should be made to find a tenant [in
person] in order to notify him of an eviction request under
Chapter 16 Section 2 of the Act on Execution (utsöknings-
balken), the reason being, on the one hand, to guarantee the
legal safeguards of the tenant, and on the other hand, to
facilitate the execution by obtaining more information
regarding the number of children, the extent of the
possessions etc. As to the method of serving the
notification [of the eviction upon the debtor] by putting it
in his letter-box (brevlådedelgivning) the normal practice
has been to try several (up to three) times to find the
debtor [in person] before serving the notification by
putting it in the letter-box.
...
Due to a big work load, long distances and a decreased
number of staff the requirement that several efforts be made
[to notify the applicant in person] has had to be abandoned.
As in other Enforcement Offices the so-called letter-box
notification may now be used already the first time [the
applicant is not found in person], unless there is an
indication that the tenant is temporarily not staying in the
apartment (e.g. because of holidays or hospitalisation).
The official will then check the letter-box to see whether
there is unopened mail in it. Neighbours may also be asked,
as well as the property owner. If it is considered
necessary, the notification will also be sent by regular
mail, in case the tenant is having his mail forwarded. It
is, however, exceptional that a letter-box notification is
made already the first time. Support for this method of
service may in the Enforcements Office's view be found in
the wording of the provision in Chapter 16 Section 2 of the
Act on Execution. Further, support for the method may be
found in [the Report of the Parliamentary Committee on Legal
Matters] No. 1980/81 : 23 p. 39, last Section.
If, on the day of the execution, it is suspected that the
tenant is not staying in the apartment and that he has
not received the notification of the Enforcement Office, the
proceedings will of course be interrupted. New inquiries
from neighbours, the social authorities etc. will then be
made.
...
Having heard [the enforcement official] M.E. about the
method of service she has stated that there was no
indication that Hedén was not staying in the apartment. For
example, there was no mail in the letter-box. When the
[execution] proceedings commenced the notification of the
Enforcement Office could not be found in the letter-box. As
already mentioned, Hedén arrived at the apartment about ten
minutes before the proceedings were to take place. He then
discussed with the property owner who informed him that the
eviction would be carried out. Hedén then left the place.
Had he, instead, waited for the official and told him that
he had submitted a request for stay of execution to the
District Court, the execution could have been stayed.
The Enforcement Office doubts the information given by Hedén
that he had received the Enforcement Office's notification
only a few hours before the [execution] proceedings were to
take place."
The applicant subsequently reported to the police that some
of his possessions had been stolen from his basement storage in
connection with his eviction. The investigation in respect of that
charge was closed by the District Prosecutor of Gothenburg on
29 November 1988. This decision was upheld by the Chief District
Prosecutor (överåklagaren) on 12 January 1989.
It appears from the file that in 1989 the applicant brought an
action against the State, claiming damages for alleged negligence by
the Enforcement Office when carrying out his eviction. The applicant
alleged that the Enforcement Office's actions were unlawful with
regard to the stay of execution and the way in which the notification
of the eviction was served upon him. He further referred to the
alleged loss of his possessions in the apartment as well as in his
basement storage.
The following is an extract from a statement of 5 April 1989
by the National Tax Board (riksskatteverket) to the District Court,
in which the National Tax Board contested the applicant's claim:
"...
As to the possessions which were left in the apartment the
Enforcement Office used the method of changing the lock and
the name [on the door to the apartment] (lås- och namnbytes-
metoden). This is not specifically regulated in law, but has
developed from practice. The provisions in Chapter 16 of
the Act on Execution (utsökningsbalken) do not prohibit the
use of this method. ... It is used in evictions from an
apartment and requires the consent of the landlord. The
possessions may be left in the apartment, but the tenant
loses his right of disposal by the change of the lock;
furthermore, the name on the door is changed. The tenant
may in co-operation with the landlord recover his
possessions. The eviction is concluded when the lock and
the name have been changed and the possessions are stored
with the landlord. ... the official informed Hedén that he
could, in agreement with the landlord, recover the
possessions which were left [in the apartment]. Insofar as
Hedén claims damages because these possessions have been
thrown away he has to turn to the landlord and not to the
State.
As regards the possessions in the basement storage it is
clear ... that it could not be decided with certainty which
storage belonged to Hedén. The storage could therefore not
be emptied. Neither could any lock be changed. Therefore
no eviction regarding the storage took place. Hedén
retained his right of disposal of the storage. Insofar as
he claims damages with regard to the possessions in the
storage he cannot turn to the State, but has to turn to the
person who has broken the lock and thrown away the goods,
that person according to the applicant being the landlord."
The outcome of these proceedings before the District Court
does not appear from the applicant's submissions.
In his decision of 28 June 1989 the Parliamentary Ombudsman
stated the following:
"The possibilities for a District Court to stay execution of
judgments by default (tredskodom), decisions in
debt recovery cases (lagsökningsmål), decisions in cases
regarding judicial assistance (handräckningsmål) or final
decisions (slutbevis) in cases brought by dunning-process
(betalningsföreläggande) are not explicitly regulated by
law. Insofar as decisions in debt recovery cases are
concerned, it follows, however, indirectly from the Act on
Execution, Chapter 3, Section 11, that such a possibility
exists.
Stay of execution is an important part of the legal
safeguards for a person requesting proceedings to be
resumed. A request that the proceedings be resumed is
directed at a decision made in a summary procedure and where
the court's decision is often exclusively based on
information submitted by the plaintiff. It is true that the
summary procedures probably lead to materially correct
decisions in most cases. It may, however, happen that the
debtor, when requesting that the proceedings be resumed,
submits such information that the decision at issue appears
materially doubtful or plainly wrong. In such cases it is
of course important that the decision is not enforced before
the issues in the case may be examined in a normal
procedure. The question of stay of execution must therefore
always be decided urgently. When dealing with [such a
matter] it is not possible to separate requests for stay of
execution which appear justified and those which do not appear
justified, and assume the necessity of an urgent treatment
only for the first-mentioned category. A debtor who is
considered to have weak grounds for his request for stay has
a right to receive a negative decision as quickly as
possible, to guide him in his future conduct. It can in no
case be accepted that the Court, by neglecting to respond to
a request for stay of execution, in practice leaves the
decision whether the execution should be stayed or not
completely in the hands of the plaintiff.
Accordingly, B.O.'s way of handling the request for stay was
wrong. I am gravely concerned about the procedure, as
apparently it has been used also in other cases. Having
regard on the one hand to the fact that B.O. now apparently
has realised that his conduct was wrong, on the other hand
to the fact that he, from what has appeared in the
investigation, had a certain justification for his
understanding that no request for execution would be
submitted, I refrain from pursuing this matter any further.
The handling [of the applicant's case] by the Enforcement
Office does not give rise to any statements by me."
Following a refusal of the applicant's insurance company to
pay compensation for the allegedly lost possessions the applicant
brought an action against the company before the National Board for
Consumer Complaints (allmänna reklamationsnämnden), which recommended
that the insurance company pay compensation, as it had been
established that the lock to the applicant's storage had been broken
by his landlord.
According to Chapter 3, Section 11 of the Act on Execution a
decision in a debt recovery case ordering the payment of a debt may
be immediately executed, provided that no decision to stay execution is
made upon a request that the proceedings be resumed or upon an appeal.
COMPLAINTS
1. The applicant complains that he was evicted from his flat
because the District Court failed to inform the Enforcement Office
of the order that execution be stayed. He alleges that judge
B.O., only after having been informed that the execution was being
carried out, informed the Enforcement Office of the order. By that
time, however, the eviction had already taken place.
The applicant further alleges that he was notified about the
date and time of the eviction only a few hours beforehand. He alleges
that due to hospitalisation he had not been staying in his apartment
during the week before 23 February 1988, on which date he came home at
11.20, finding the notification from the Enforcement Office regarding
the eviction which was to take place on the same day. Due to his
state of shock he left his apartment immediately thereafter.
2. The applicant also complains that his eviction was carried
out in such a way as to cause the subsequent loss of certain possessions
left by the enforcement officials in the apartment and the basement
storage.
The applicant alleges violations of Article 8 of the
Convention.
THE LAW
1. The applicant complains that his eviction was caused by the
District Court's failure to inform the Enforcement Office of the
decision that execution be stayed. He further complains of the method
of service used in order to notify him of the eviction and of the way
in which the eviction was carried out. He invokes Article 8 (Art. 8)
of the Convention which reads:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
As regards the alleged failure to inform the Enforcement
Office of the decision to stay execution, the Commission finds
it established that no formal decision was made. The judge in charge
was critisised by the Parliamentary Ombudsman for failure urgently to
make a decision upon the applicant's request for stay of execution.
The Commission observes that under Swedish law the applicant had no
right as such to an immediate stay of execution.
As regards the method of service used for the notification of
the eviction the Commission observes that, although the method of
service used in the applicant's case was exceptional, it was carried
out on the basis of indications that the applicant was staying in his
apartment at the time of the notification. Moreover, the applicant
arrived at his apartment and found the notification before the eviction
was carried out. There is no substantiation of the applicant's
allegation that due to his state of shock he had to leave his
apartment, thereby not being able to inform the enforcement official
in charge of the eviction that his request for stay of execution was
pending before the District Court.
As regards the applicant's eviction the Commission considers
that it constituted an interference with his right to respect for his
private life and his home within the meaning of Article 8 para. 1
(Art. 8-1) of the Convention.
It must therefore be examined whether this interference
was justified under the terms of Article 8 para. 2 (Art. 8-2) of the
Convention. In order to be justified an interference must satisfy
three conditions: it must be "in accordance with the law", it must
pursue one or more of the legitimate aims enumerated in Article 8
para. 2 and it must be "necessary in a democratic society" for that or
those legitimate aims (cf. Eur. Court H.R., Olsson judgment of 24
March 1988, Series A No. 130, p. 29, para. 59).
In the present case there is no indication that the eviction
was not carried out "in accordance with the law".
Furthermore, the eviction was carried out in order to protect
the rights of the landlord. This was a legitimate aim for the
purposes of Article 8 para. 2 (Art. 8-2) of the Convention.
It remains to be examined whether the eviction was "necessary
in a democratic society" for the protection of the rights of the
landlord. The Commission recalls that the notion of necessity implies
that the interference corresponds to a pressing social need and that
it is proportionate to the legitimate aim pursued.
The eviction was, by its very nature, bound to cause
difficulties for the applicant. The Commission observes, however,
that it was based on the District Court's decision of 12 January 1988
ordering the applicant to immediately leave the apartment. The
applicant chose not to comply with that order. Thus, what is at issue
in the present case is the execution of a legally binding judgment.
In a State of law such an execution must be considered "necessary" for
the protection of the rights of others.
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.
2. The applicant also complains that the way in which his
eviction was carried out caused the subsequent loss of certain
possessions left by the enforcement officials in the apartment and the
basement storage.
The Commission has examined this complaint as submitted by the
applicant. It cannot find any appearance of a violation of Article 8
(Art. 8) of the Convention.
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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