LANGBORGER v. SWEDEN



EUROPEAN COMMISSION OF HUMAN RIGHTS

 

Application No. 11179/84

 

Rolf LANGBORGER

 

against

 

SWEDEN

 

 

REPORT OF THE COMMISSION

 

(adopted on 8 October 1987)

 

 

TABLE OF CONTENTS

 

                                                              page

 

I.   INTRODUCTION (paras. 1-14) ............................    1

 

     A.  The application

         (paras. 2-4)  .....................................    1

 

     B.  The proceedings

         (paras. 5-10) .....................................    1

 

     C.  The present Report

         (paras. 11-14) ....................................    2

 

 

II.  ESTABLISHMENT OF THE FACTS (paras. 15-55) .............    4

 

     A.  The particular circumstances of the case

         (paras. 15-55) ....................................    4

 

     B.  Relevant domestic law and practice

         (paras. 32-55) ....................................   10

 

         a.  Historical background (para. 32) ..............   10

 

         b.  Negotiation of rents (paras. 33-36) ...........   11

 

         c.  Rent Boards (paras. 37-44) ....................   12

 

         d.  House and Tenancy Court (paras. 45-52) ........   14

 

         e.  Publicity of court decisions (paras. 53-54) ...   18

 

         f.  Other rules (para. 55) ........................   18

 

 

III. SUBMISSIONS OF THE PARTIES (paras. 56-108) ............   21

 

     A.  The applicant

         (paras. 57-80) ....................................   21

 

         a.  Article 6 of the Convention (paras. 57-76) ....   21

 

             aa.  "independent and impartial tribunal"

                  (paras. 57-64) ...........................   21

 

             bb.  "public hearing" (paras. 65-68) ..........   24

 

             cc.  Were the decisions pronounced publicly?

                  (para. 69-76) ............................   25

 

         b.  Article 8 of the Convention (para. 77) ........   27

 

         c.  Article 11 of the Convention (para. 78) .......   27

 

         d.  Article 13 of the Convention (para. 79) .......   27

 

         e.  Article 1 of Protocol No. 1 (para. 80) ........   28

 

     B.  The Government

         (paras. 81-108) ...................................   28

 

         a.  Article 6 of the Convention (paras. 81-104) ...   28

 

             aa.  "independent and impartial tribunal"

                  (paras. 81-90) ...........................   28

 

             bb.  "public hearing" (paras. 91-103) .........   31

 

             cc.  public pronouncement of judgment

                  (para. 104) ..............................   34

 

         b.  Article 8 of the Convention (para. 105) .......   34

 

         c.  Article 11 of the Convention (para. 106) ......   34

 

         d.  Article 13 of the Convention (para. 107) ......   34

 

         e.  Article 1 of Protocol No. 1 (para. 108) .......   34

 

 

IV.  OPINION OF THE COMMISSION (paras. 109-164) ............   35

 

     A.  Points at issue

         (para. 109) .......................................   35

 

     B.  Article 6 of the Convention (paras. 110-147) ......   35

 

         a.     The applicability of Article 6 para. 1 of

                the Convention (para. 111) .................   36

 

         b.     Is it necessary that the procedure before

                both the Rent Board and the House and

                Tenancy Court conforms with the conditions

                of Article 6 para. 1? (paras. 112-114) .....   36

 

         c.     Was the House and Tenancy Court an

                "independent and impartial tribunal?"

                (paras. 115-144) ...........................   36

 

         d.     The requirements of a "public hearing" and

                public pronouncement of judgment

                (paras. 145-147) ...........................   41

 

 

     C.  Article 8 of the Convention (paras. 148-151) ......   42

 

     D.  Article 11 of the Convention (paras. 152-156) .....   42

 

     E.  Article 1 of Protocol No. 1 (paras. 157-160) ......   43

 

     F.  Article 13 of the Convention (paras. 161-163) .....   44

 

     G.  Recapitulation

         (para. 164) .......................................   44

 

 

 

APPENDIX I     HISTORY OF THE PROCEEDINGS ..................   46

 

 

APPENDIX II    DECISION AS TO THE ADMISSIBILITY ............   48

 

I.      INTRODUCTION

 

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

 

A.      The application

 

2.      The applicant, Mr.  Rolf Langborger, is a Swedish citizen born

in 1922 and resident at Solna.  He is a consulting engineer by

profession.  Before the Commission he is represented by Mr.  Bertil

Grennberg, a patent agent resident at Uppsala.

 

3.      The Government are represented by their Agent, Mr.  Hans

Corell, Ambassador, Under-Secretary at the Ministry for Foreign

Affairs, Stockholm.

 

4.      The case relates in particular to the question whether the

House and Tenancy Court (bostadsdomstolen), which determined the

action brought by the applicant, could be regarded as an independent

and impartial tribunal within the meaning of Article 6 of the

Convention, having regard to the fact that so-called lay assessors

(intresseledamöter), allegedly adversaries to the applicant, were

sitting on that Court.

 

B.      The proceedings

 

5.      The application was introduced on 7 September 1984 and

registered on 28 September 1984.  On 6 May 1985 the Commission

decided, in accordance with Rule 42, para. 2, sub-para. b of its Rules

of Procedure, to give notice of the application to the respondent

Government and to invite them to present before 19 July 1985 their

observations in writing on the admissibility and merits of the

application.  At the request of the Government the time-limit was

prolonged until 1 September 1985.

 

        The Government's observations were dated 27 August 1985 and

the applicant's observations in reply were dated 15 October 1985.

 

        On 12 December 1985 the Commission, after an examination of

the admissibility of the application, decided to invite the parties to

a hearing on the admissibility and merits of the application.

 

        At the hearing, which was held on 9 July 1986, the applicant

was represented by Mr.  Bertil Grennberg.  The Government were

represented by their Agent, Mr.  Hans Corell, and as advisers

Mrs.  Lena Moore, legal adviser at the Ministry of Justice, and

Mr.  Håkan Julius, legal adviser at the Ministry of Housing and

Planning.

 

6.      On 9 July 1986, the Commission declared the application

admissible (1).

 

 

__________________

(1)     See decision on admissibility, Appendix II.

 

7.      The parties were then invited to submit additional

observations on the merits of the application.  The Government's

observations were dated 1 October 1986 and the applicant's

observations were dated 10 October 1986.  These observations were

transmitted to the other party for information.

 

8.      On 10 December 1986 and 9 May 1987 the Commission considered

the state of proceedings of the case.

 

9.       On 8 October 1987 the Commission deliberated on the merits

of the case and took the final votes in the case.

 

10.      After declaring the case admissible the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case.  In the light of the parties' reactions the Commission

now finds that there is no basis on which a friendly settlement can be

effected.

 

C.      The present Report

 

11.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

 

                      MM. C. A. NØRGAARD

                          S. TRECHSEL

                          B. KIERNAN

                          A. S. GÖZÜBÜYÜK

                          A. WEITZEL

                          J. C. SOYER

                          H. DANELIUS

                          G. BATLINER

                          H. VANDENBERGHE

                      Mrs G. H. THUNE

                      Sir Basil HALL

 

 

        The text of the Report was adopted by the Commission on

8 October 1987 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

 

12.     The purpose of the Report, pursuant to Article 31 para. 1

of the Convention, is

 

        (1)  to establish the facts, and

 

        (2)  to state an opinion as to whether the facts found disclose

             a breach by the Government of their obligations

             under the Convention.

 

13.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application forms Appendix II.

 

14.     The full text of the parties' submissions, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

 

II.     ESTABLISHMENT OF THE FACTS

 

A.      Particular circumstances of the case

 

15.     The applicant rents a six-room flat of 119m².  The tenancy

agreement, entered into on 1 October 1982 between the applicant and

the landlord (Mr.  Johansson), contains a negotiation clause (förhand-

lingsklausul), which reads as follows:

 

"During the running of the contract the parties undertake to

accept, without previous termination of the contract, the

rent and other conditions agreed upon on the basis of the

applicable negotiation agreement (förhandlingsordning)

between, on the one hand, a property owners' union affiliated

to the Swedish Federation of Property Owners and a landlord, who

with his property is affiliated to such a union, and, on the

other hand, a tenants' union affiliated to the National Tenants

Union."

 

        Under this clause the amount of the rent shall be determined

by negotiation between the Tenants Union of the Stockholm area

(hyresgästföreningen i Stor-Stockholm) and the Stockholm Property

Owners Union (Stockholms Fastighetsägareförening).  These two unions

have an agreement which regulates the negotiations.  The tenants'

union receives a commission which is paid by the landlord in

proportion to the amount of rent agreed by the two unions.  At present

this amount is 0.3% of the rent.

 

16.     Being dissatisfied with the amount of the rent and the fact

that he was represented by the tenants' union in question, the

applicant gave notice by letter of 15 June 1983 to terminate his tenancy

contract for the purpose of changing the conditions of the contract in

accordance with Chapter 12, Section 54 of the Land Act (jordabalken).

The applicant suggested a new contract providing for a fixed rent,

thereby excluding the negotiation clause.

 

17.     The applicant's proposal was rejected by the landlord and, on

23 June 1983, he therefore referred the dispute to the Rent Board

(hyresnämnden) in the Stockholm county.

 

18.     In the applicant's case the Rent Board was composed of one

lawyer and two lay assessors.

 

19.     The President of the Rent Board was Mr.  Göran Hogebrandt, who

was appointed as Rent Judge by the Government on 2 April 1981.  At the

time of his appointment Mr.  Hogebrandt held the position of Associate

Judge of Appeal, which is a non-permanent judicial appointment.  His

career has been a normal one within the judiciary, and he has had a

certain number of public assignments.  The applicant's case had been

allocated to his section in the court.

 

20.     The lay assessor familiar with the administration of apartment

buildings was Mr.  Jan Åke Hedin.  The lay assessor familiar with tenants'

problems was Mr.  Gösta Gröndahl.

 

        Mr.  Hedin was born in 1918.  He is an economist and he has

been a lay assessor of the Rent Board for approximately thirty years.

He has served on the Rent Board since its establishment in 1969.

Mr.  Hedin is the Chairman of one of the district associations

affiliated to the Stockholm Property Owners Union.  He is a licensed

property administrator and is the owner of two properties with

tenants' houses.  He is the managing director of his own electricity

business and employs some fifty people.

 

        Mr.  Gröndahl was born in 1919.  He is a retired customs

officer and has been a lay assessor since the Rent Boards were

transferred into State organs in 1969.  He has a long experience of

rent matters.  For nine years he was Chairman of one of the district

associations affiliated to the Stockholm Tenants Union.  Today he is

only a member of this union.

 

        At the time of the present case, both lay assessors had been

appointed by the National Board of the Judiciary (domstolsverket) in a

decision dated 8 December 1980 for the three-year period 1 January

1981 - 31 December 1983.  The appointments, subsequently renewed, were

made after customary processing by the National Board.  Both members

served on the Rent Board, at the time of the present case in

accordance with a pre-established schedule.

 

21.     The applicant first challenged the two lay assessors of

the Rent Board.  He maintained that the lay assessors, who had

originally been nominated by the organisations of landlords and

tenants, were representatives of the landlords' union and the tenants'

union.  He considered that these members were not in a position to

judge the dispute objectively and impartially since the subject-matter

affected the raison d'être of the two unions which drew their

resources from the sums paid out of the rent negotiations.  The

applicant also alleged a risk of discrimination for political reasons

on the part of the tenants' union, which had socialist inclinations,

because the applicant was a county councillor (landstingsman) elected

as representative of the moderate right-wing party (moderata

samlingspartiet).  The applicant claimed that the negotiation clause

in his contract should be deleted and he also objected to the amount

of the rent.

 

22.     The Rent Board held a hearing on 17 November 1983.  Both the

applicant and his representative, as well as the representative of the

landlord, were present at the hearing.  The President of the Rent

Board, Mr.  Göran Hogebrandt, first rejected the challenge of the

two lay assessors, giving the following reasons:

 

"Section 5 of the Act on Lease Boards and Rent Boards (lagen

om arrendenämnder och hyresnämnder) provides that in a case

as the present one the Board shall be composed of one

member who is well acquainted with the administration of

rented residential property and one member who is well

acquainted with or familiar with the situation of tenants.

These members have been appointed in the present case by the

National Board of the Judiciary upon proposals from the

Swedish Federation of Property Owners and the National Tenants

Union respectively.  This fact alone could not constitute

a ground for challenge.

 

In view hereof, and as there is no other reason which

could justify a challenge of Mr.  Hedin  and Mr.  Gröndahl,

the applicant's challenge shall be rejected."

 

23.     Thereafter the Rent Board heard the parties on the merits of

the case.  At the end of the hearing the Rent Board announced that the

decision in the case would be made available at the Rent Board's

registry on 1 December 1983.

 

24.     The Rent Board's decision in the case was delivered on

1 December 1983 and the Board's conclusion was that the applicant's

claims were rejected.  The applicant received a copy of the decision

by ordinary post.

 

        As regards the reasons for rejecting the the applicant's

claim that the negotiation clause be excluded, the Rent Board stated

as follows:

 

"In the assessment of a dispute as to the retention of a

negotiation clause particular regard must be had to the

statements in the travaux préparatoires to the Rent Negotiation

Act.  The responsible Minister inter alia stated the following:

 

"A tenant may of course also refer a dispute

concerning a negotiation clause to the Rent Board

even if this is not the result of a common action

by those living in the house.  It is possible that

the tenant does not oppose collective negotiations

concerning the house in which he lives.  However,

on account of circumstances relating to his

personal living conditions he may wish himself to

stay outside such negotiations and retain his

right to conclude individual agreements on changes

of the rent with the landlord.

 

In such a case the Rent Board shall assess the

strength of the reasons invoked by the tenant in

the particular case in support of his claim.  At

the same time the Rent Board must take into

account that the landlord has an interest in the

collective negotiations covering as many flats as

possible as a result of the application of the

utilisation value system (bruksvärdesystem).  Even

if the landlord as such has a justifiable interest

in having a negotiation clause included in the

tenancy agreement, it can be reasonable in a

number of cases to comply with the tenant's

request for an individual right to negotiation.

As I just indicated the Rent Board shall weigh on

the one hand the interest in not making a rational

negotiation of the rent issue too difficult and,

on the other hand, the principle that the

individual tenant should have the greatest

possible freedom in concluding agreements.

Circumstances which militate in favour of the

tenancy agreement not including a negotiation

clause can be connected with the character of the

flat and the house.  Thus it can be a special type

of flat to which the collective negotiation form

is not particularly well adapted.  It can also be a

question of an older house with considerable

differences of quality between flats.  If the

tenant then considers that he can achieve better

rent conditions by negotiating directly with the

landlord, there may be reasons to let him do so.

If the negotiation agreement comprises only a

small number of flats can in my opinion also be a

reason for accepting such an action from a tenant.

 

A case which can also lead to a flat being exempted

from the collective negotiation is that the tenant

and the landlord are relatives or that there are

other personal relations between them.  In such a

case the parties should normally be in agreement,

and the Rent Board need not enter into an

examination of the merits.

 

The tenant may also in a particular case invoke

that the negotiations have not been conducted in a

way which is compatible with the provisions of the

Rent Negotiation Act.  Circumstances of this

nature must obviously be given great importance

when the Rent Board examines the case.  In my

opinion a negotiation clause should be excluded if

for instance it appears from the investigation

that there is an obviously excessive remuneration

to the tenants' organisation.

 

In summary I thus propose that in the Rent

Negotiation Act there be included a provision

concerning the basis for the assessment, when the

Rent Board has to examine a dispute regarding the

inclusion or retention of a negotiation clause in

the tenancy agreement.  The provision ought to

have as its aim that the tenancy agreement shall

contain a negotiation clause, if it is not

reasonable that the negotiation clause should not

apply in view of the tenant's personal living

conditions, the attitude of the other tenants who

are affected by the negotiation agreement and

other circumstances (Government Bill 1977/78: 175

p. 130 etc)."

 

        In the present case the applicant - as his submission may be

        understood - has alleged that he lacks confidence in the

        tenants' union as such and in its manner to conclude

        agreements on rent, in particular for such tenants who are

        not members of the tenants' union.

 

        The Rent Board finds it established from the investigation

        in the case that on the occasion of the latest negotiation

        agreement (1 December 1982) (the applicant's flat) was

        given the same rent as other flats of the same size in

        the house.  The Rent Board furthermore finds that on

        1 October 1982 (the applicant) entered into a new rent

        agreement where the rent is the same as in the above

        mentioned negotiation agreement (221 SEK per sq. metre flat

        surface and year).  Even if at the beginning of the meeting

        in this case (the applicant) did not want to accept that he

        had signed the tenancy agreement, nothing else has been

        proven than that it is a voluntary agreement which has been

        concluded.  Neither has the investigation of the case given

        cause to believe that the rent for (the applicant's) flat

        deviates from the rent in similar flats in the stock of

        flats held by the public utility companies.

 

        In view of what has been said above and the other

        circumstances the Rent Board finds that it has not been

        shown that the negotiation activity in (the applicant's)

        case has been conducted by the tenants' union in such a way

        as to be in conflict with the provisions of the Rent

        Negotiation Act.  When making an assessment between, on the

        one hand, a rational negotiation work when fixing rents and,

        on the other hand, the principle that the individual tenant

        should enjoy the greatest possible freedom in concluding

        agreements, the Rent Board finds that the negotiation clause

        should also in the future be included in (the applicant's)

        rent agreement.  His claim should therefore be rejected."

 

25.     The applicant appealed to the House and Tenancy Court

(bostadsdomstolen) basing himself inter alia on Articles 6, 11 and 13

of the Convention.  He argued that the Court, as the highest competent

body, was the national authority within the meaning of Article 13 of

the Convention.  He called for a thorough examination of the challenge

raised in the first instance.  He also challenged any lay assessors of

the House and Tenancy Court who might represent the landlords' and

tenants' unions.  As to the merits, the applicant reiterated his

request not to be represented by the tenants' union and asked to be

permitted to fix his rent by means of an individual contract with the

landlord.

 

26.     In the applicant's case the Court was composed of four members.

 

        The President was the President of the House and Tenancy

Court, Judge Hans Svahn, who also held the permanent position of

Chamber President in the Court of Appeal (hovrättslagman).  The

Government appointed Mr.  Svahn on 1 September 1983, as President of

the House and Tenancy Court from 1 October 1983 to 30 September 1986.

After a customary judicial career, and in addition service in both

Parliament and the Ministry of Justice, Mr.  Svahn served as Permanent

Under-Secretary and Under-Secretary for Legal Affairs at the Ministry

of Industry.  He was then appointed by the Government as Chamber

President of the Svea Court of Appeal, which position he held until

his appointment as President of the House and Tenancy Court.  The

appointment as Chamber President of the Court of Appeal is a permanent

judicial appointment.  Mr.  Svahn formally still holds his position as

Chamber President even during his mandate at the House and Tenancy

Court.

 

        The Court Rapporteur in the case was Mr.  Hans Anderberg,

Housing Judge.  He served during the years 1969-1979 as Rent Judge at

the Rent Board in Stockholm and was thereafter appointed Housing

Judge.  His term was subsequently extended from 30 September 1983 to

30 September 1986, the Government decision being dated 29 September

1983.  Formally he still holds his post as Rent Judge, which position

is permanent.

 

27.     The lay member familiar with matters concerning private

property owners was Mr.  Bertil Tullberg and the lay member familiar

with tenants' matters was Mrs.  Märta Kåremo.

 

        Mr.  Tullberg was born in 1913.  He had been a permanent member

of the Court for nine years when he resigned in 1984.  Before that he

had for many years been a member of the National Rent Council (statens

hyresråd).  When he retired in 1979 he had been the managing director

of the Stockholm Property Owners Union for ten years.  He is a

Bachelor of Law, and before the period as managing director he was the

legal adviser of the union since 1943.  He has never been the

owner of a property with tenants.

 

        Mrs.  Kåremo was born in 1923.  She was a deputy lay assessor

of the Court for ten years when she resigned on 1 July 1985.  Before

that she had the corresponding post in the National Rent Council

since 1967.  Before she retired she was an employee of the National

Tenants Union where she was responsible for the training of the

association's staff in legal matters within its competence.  At the

time when the applicant's case was decided Mrs.  Kåremo was still

employed by the Tenants Union and received a salary from the union.

She was in receipt of a partial disability pension as well as a small

pension from an insurance company.

 

        It follows that both lay assessors have served on the House

and Tenancy Court since its establishment in 1975.  Renewal of their

mandates for the period at issue was by a Government decision of 11

June 1981 for the period 1 July 1981 to 30 June 1984.

 

28.     By letter of 28 December 1983 from the House and Tenancy Court

the applicant was informed as follows:

 

        "In the capacity of a party in the above-mentioned case you

        are informed that the House and Tenancy Court may determine

        the case on the basis of its present state without an oral

        hearing."

 

29.     On 23 February 1984 one of the judges of the House and Tenancy

Court rejected the challenge directed against the two lay assessors of

the Court.  This decision was to be made public on 2 April 1984.  It

states inter alia as follows:

 

"The Act on the House and Tenancy Court (lagen om

bostadsdomstolen) provides that the Court shall, in a case

of this nature, be composed of, on the one hand, a lay

assessor who is familiar with tenants' problems and, on the

other hand, a lay assessor who is familiar with the

administration of residential property.  All such lay

assessors of the Court have been appointed by the Government

upon proposals from the National Tenants Union and the

Swedish Federation of Property Owners.  The fact that Mr.

Tullberg and Mrs.  Kåremo are attached to these organisations

could not, therefore, as such be the basis for a challenge

of them.  Consequently, and since the House and Tenancy

Court does not find any other reason to disqualify Mr.

Tullberg and Mrs.  Kåremo, the Court rejects (the

applicant's) claim."

 

        A copy of this decision was only sent to the applicant on

17 April 1984.  This delay was due to a mistake.

 

30.     On 2 April 1984 the House and Tenancy Court delivered judgment

on the merits of the case, thereby confirming the decision of the Rent

Board.  The Court sat in private in the absence of the parties and

took its decision without a hearing.

 

31.     The applicant received a photocopy of the judgment by ordinary

post.   As this decision referred to another decision of the Court of

the same day rejecting his challenge, the applicant asked the Court

for information on this decision.  He then received, on 17 April

1984, a photocopy of the decision given on 23 February 1984.

 

 

        B.  Relevant domestic law and practice

 

        a.  Historical background

 

32.     Owing to the increase in the urban population a considerable

number of buildings were erected in the years following the 1890s.

The older buildings generally belonged to individuals but the owners

of modern buildings included bodies whose capital was provided from

public sources.  Most of the accommodation was rented.  At the end of

the First World War rents increased steeply.  To compensate for the

economic inequality existing on the free market between tenants and

landlords the first Rent Boards were established in 1917.  These

Boards were composed of representatives of the tenants and the

landlords and presided over by a lawyer.  The Boards could act as

mediators and decide disputes on the amount of rent.  This system was

abolished in 1923 with the return of free market principles.

 

        Strict economic measures were taken during the Second World

War including a price freeze and the passing of the 1942 Rent Control

Act (lagen om hyresreglering).  In principle, rents were fixed at the

level existing when the Act entered into force.  The Rent Boards

were re-established.

 

        Some accommodation ceased to correspond to its true market

value.  Although collateral economic arrangements were forbidden by law

they nevertheless occurred.  It was therefore decided in the seventies

to repeal the 1942 Act without however returning to the free market in

order not to stimulate a steep increase in rents.

 

        b.   Negotiation of rents

 

33.     Section 1 of the 1978 Rent Negotiation Act

(hyresförhandlingslagen, "the 1978 Act") provides that conditions for

tenancies shall be negotiated between a landlord or a landlord and a

landlords' organisation on the one hand, and a tenants' organisation

on the other.  The negotiation procedure is agreed on by the parties

or fixed by a Rent Board.  If a tenancy agreement contains a

negotiation clause the tenant must accept the provisions agreed

between the parties.

 

35.     A dispute as to the maintenance or adoption of a negotiation

clause may be submitted to a Rent Board.  Section 2 of the 1978 Act

provides that a negotiation clause shall be adopted or retained if

this is not unreasonable, having regard to the tenant's living

conditions or the opinion of other tenants affected by the clause.

The right to have examined the negotiation clause by a Rent Board is,

according to the travaux préparatoires, laid down for the purpose of

safeguarding the legal security of the individuals.  Reference is made

in particular to tenants who are not members of the negotiating unions

(Government Bill No. 1977/78: 175 p. 132).  The Rent Board shall

examine the validity of the tenant's reasons for remaining outside the

collective negotiation system and the interests of the landlord.  The

Rent Board shall weigh the interest in not preventing rational

negotiations concerning the fixing of rents against the fundamental

demand of the greatest possible contractual freedom for the

individual.  The following circumstances may justify an exemption from

the obligation to accept a negotiation clause:

 

        - the special features of the accommodation;

        - the negotiation system may apply to only part of the

          accommodation concerned;

        - the personal relationship between the landlord and the

          tenant;

        - negotiations failing to comply with the 1978 Act;

        - excessive remuneration of the tenants' organisation.

 

35.     Under Section 20 of the 1978 Act, it may be decided in the

negotiations that the rent shall include a sum to remunerate the

tenants' organisation for the part it plays in the negotiations.  The

sum intended for this purpose must be specifically indicated in the

negotiation agreement.  Section 20, third sentence provides that the

amount may not exceed what can be considered to be reasonable having

regard to the rent, the cost of the negotiation activity and other

circumstances.

 

36.     The system for negotiating rent should in principle apply to

one or more buildings.  At present it applies to all accommodation

owned by public organisations and 80% of buildings comprising more

than two flats (flerfamiljshus) in private ownership.

 

        c.   Rent Boards

 

37.     The Rent Boards are not regarded under Swedish law as courts

but as administrative authorities.

 

38.     Under Section 4 of the Act on Lease Boards and Rent Boards the

Rent Boards hear and determine disputes relating to rent in accordance

with the provisions of Chapter 12 of the Land Act.  They also

determine disputes relating to the application of the Rent Negotiation

Act and other Acts.  The Boards also act as mediators.  There are

twelve Rent Boards in Sweden.  In 1984, they heard 31,194 cases and

8,731 cases were pending at the end of the year.

 

39.     Section 5, first and second sentences of the Act on Lease

Tribunals and Rent Boards provides:

 

        (Swedish)

 

"Hyresnämnd består av lagfaren ordförande och två andra

ledamöter, om ej annat följer av tredje stycket.  Av de

senare ledamöterna skall den ene vara väl förtrogen med

förvaltning av hyresfastighet eller, när ärendet rör

bostadsrättsfastighet, med förvaltning av sådan fastighet

och den andre vara väl förtrogen med bostadshyresgästers

förhållanden eller, när ärendet rör annan lägenhet än

bostadslägenhet, med näringsidkande hyresgästers förhållanden."

 

(English translation)

 

"A Rent Board is composed of a legally trained lawyer as

president and two other members, unless the third paragraph

provides otherwise.  Of the latter members, one shall be

well acquainted with the administration of residential

properties or, when the case concerns flat-owners' houses,

with the administration of such property and the other shall

be well acquainted with the situation of tenants or, when the

case concerns other flats than flats for dwelling purposes,

with the situation of tenants engaged in business activities."

 

40.     According to Section 6 of the Act on Lease Tribunals and Rent

Boards, the Government or an authority appointed by the Government

shall appoint the chairman and a suitable number of other members for

each Rent Board.

 

41.     The President of a Rent Board is designated Rent Judge and

must have legal education.  When a position as president has been

notified as vacant, it is the Government which determine who shall be

appointed, on the basis of applications and the recommendation of a

special Appointments Recommendation Board (tjänsteförslagsnämnd) for

the courts.  However, the heads of the three largest Rent Boards are

appointed by the Government without prior application procedure.  The

position of the Rent Judges is permanent, and they cannot in principle

be removed from their position.  Rent Judges work full time on the

Boards.  If more than one president serves on the same Board,

each president has his own section.  Incoming cases are distributed

geographically among the different sections.

 

42.     The lay assessors are appointed by the National Board of the

Judiciary for a period of three years.  Before a lay assessor is

appointed the organisations concerned with the housing market

(principally, the Swedish Federation of Property Owners and the

National Tenants Union are given the opportunity of proposing

candidates.  These proposals are generally followed and no selection

between several candidates is made.  The members are considered to sit

on the boards in their personal capacity and not as representatives of

the unions.

 

        Section 6, para. 2 of the Act on Lease Boards and Rent Boards

provides:

 

        (Swedish)

 

"Innan annan ledamot än ordförande förordnas, skall sådan

riksorganisation av fastighetsägare, hyresgäster,

bostadsrättshavare eller näringsidkare som med hänsyn till

medlemsantal, verksamhet och övriga omständigheter kan anses

väl företräda den intressegrupp som det är fråga om beredas

tillfälle att avge förslag."

 

(English translation)

 

"Prior to the appointment of a member other than the

President, a national organisation of property owners,

tenants, flat-owners or businessmen which, in view of its

membership, activities and other circumstances, can be

considered well to represent the interest group at issue,

shall be given the opportunity to submit a proposal."

 

43.     The lay assessors on the Rent Boards serve in accordance with

a schedule prepared in advance and are not designated for a certain

case.  They do not therefore know in advance which cases they will be

dealing with.

 

 

44.     The proceedings before the Rent Boards are, in principle,

oral.  The investigation may include an inspection of the

accommodation and the hearing on oath of witnesses or experts.  The

procedure for the hearing of witnesses is prescribed by the Code of

Judicial Procedure (rättegångsbalken).  The reasons must be given for

the decisions.

 

        Although the Rent Boards are not considered to be courts but

have the status of administrative authorities in Sweden, the

provisions of the Code of Judicial Procedure governing votes,

challenges and the publicity of the proceedings and decisions apply to

them.  The Boards apply other provisions of the Code of Judicial

Procedure by analogy, in particular those relating to ordinary civil

actions (dispositiva tvistemål).  In other cases the general provisions

of the Administrative Act (förvaltningslagen) apply.

 

45.     In principle the decision is to be given on the day of the

hearing or at the latest two weeks afterwards.  The parties are

informed at the hearing of the date on which the decision will be

given.  A copy is sent to the parties within seven days if the

decision is given at the hearing.

 

        d.   House and Tenancy Court

 

46.     Unlike the Rent Boards, the House and Tenancy Court is

considered to be a court under Swedish law.  The 1974 Act on the House

and Tenancy Court (lagen om bostadsdomstol, "the 1974 Act") provides

that the Court shall decide on appeals lodged against decisions of

the Boards in the cases prescribed by the Act.  No appeal lies from

the decision of the House and Tenancy Court.

 

Section 5 of the 1974 Act provides:

 

        (Swedish)

 

"Bostadsdomstolen består av minst tre ledamöter, som är

lagkunniga och erfarna i domarvärv (lagfarna ledamöter), en

ledamot med teknisk utbildning och erfarenhet av värderings-

eller byggnadsteknik (teknisk ledamot) samt högst tolv

ledamöter med särskild sakkunskap om förhållandena på

bostadsmarknaden (intresseledamöter)."

 

(English translation)

 

"The House and Tenancy Court is composed of at least three

legally trained members with professional experience as

judges (lawyers), one member with technical education and

experience of evaluation or building technique (technical

assessor) and, at most, twelve members with special knowledge

of the conditions on the housing market (lay assessors)."

 

47.     The members are appointed by the Government.  Under Section 7

of the 1974 Act the lawyers (Housing Judges) and the technical

assessor must not be appointed from among persons who might be

considered as representing the interests of the landlords or the

tenants.  The lay assessors are appointed in the same manner as the

members of the Rent Boards (cf. para. 42), the only difference being

that they are appointed by the Government and not by the National

Board of the Judiciary.  All members take the judicial oath.

 

        In the travaux préparatoires to the Act on the House and

Tenancy Court (Government Bill 1974:151) the responsible Minister made

the following statement (at p. 103):

 

"(The Rent Procedure Committee) further assumes that a

(Housing Judge) .... shall have an ordinary post in (the

Court).  A consequence of a system as proposed by the

Committee is that an ordinary (Housing Judge) cannot be

dismissed from the post in an administrative procedure.

However, a condition for the Court being able to fulfil its

task to decide on disputes between landlords and tenants is

that the organisations on the rent market have confidence in

the Court and its members.  As has been the case concerning

(the judges) in the Labour Court (arbetsdomstolen), it is

therefore appropriate that the general principle, that

(judges) to the greatest possible extent shall have ordinary

posts, shall yield as regards the (judges) of the House and

Tenancy Court.  (A judge) should thus not be given an

ordinary post in the House and Tenancy Court, but in view of

the nature of the work be appointed on a temporary post for

a limited time.  It is appropriate to determine this time

at three years.  It is evident that the mandate can be

renewed, when the period expires.  I take it for granted

that that will be the rule."

 

48.     In the Court there is a quorum of seven members, but four

are sufficient if none of the members insists on seven being present

(Section 12).  When seven members sit three of them must be lawyers and

four lay assessors (two with experience in administering rented

property and two familiar with the situation of tenants).  When

the quorum is four, two shall be lawyers and two lay assessors.  In

some cases the technical assessor takes the place of one of the

lawyers.  The president is always a lawyer.  The general provisions of

the Code of Judicial Procedure apply and in principle the Court

follows the same procedure as an ordinary appeal court.

 

        Pursuant to Sections 2 and 26 of the Act on the House and

Tenancy Court the rules on voting in the Code of Judicial Procedure,

with one exception, apply to the House and Tenancy Court.  From

Chapter 16, Section 3 of the Code on Judicial Procedure it follows

that the President of the Court has the casting vote in case of equal

voting.

 

49.     The proceedings are, in principle, written, but a hearing may

be held.   Section 20 of the Act on the House and Tenancy Court

regulates the question of a hearing before the Court.  It reads:

 

        (Swedish)

 

"Förfarandet är skriftligt.

 

Muntlig förhandling får hållas beträffande viss fråga eller

målet i dess helhet, om det kan antagas vara till fördel för

utredningen.

 

Muntlig förhandling skall hållas, om part begär det samt

förhandlingen ej är obehövlig och ej heller särskilda skäl

talar mot det."

 

(English translation)

 

"The proceedings are in writing.

 

An oral hearing may be held in respect of a certain

issue or the case in its entirety, if a hearing can be

assumed to be to the benefit of the investigation.

 

An oral hearing shall be held, if a party so requests

and the hearing is not unnecessary and provided also

that no special reasons militate against it."

 

50.     The judgments are delivered as early as possible either at the

hearing or by being made available at the Court's registry.  In the

latter case a copy is also sent to the parties by mail.

 

51.     The question of the independence and impartiality of a lay

assessor sitting on the House and Tenancy Court and appointed

after nomination by the National Tenants Union has been examined

by the Supreme Court (högsta domstolen) in case no. Ö 600/81, decision

of 21 September 1982 (reported in NJA 1982 p. 564), in the case of

Hyresgästföreningen Kroken 5.  In its decision the Court stated inter

alia as follows:

 

"In the House and Tenancy Court - as in the Rent Boards -

there are special lay assessors representing those groups

who are affected by the Court's judicial work, inter alia

property owners and tenants, who serve together with the

professional judges.  The pattern is the same as in other

similar bodies, such as the Labour Court.  As a result of the

participation of the lay assessors the Court is provided

with expertise and knowledge about the ideas which prevail

within the groups concerned.  The lay assessors are not

appointed for the particular case but are ordinarily

attached to the Court.  As a result of this, they acquire

experience as judges, and at the same time continuity and

consistency in the application of the law are promoted.  The

lay assessors are appointed on the basis of proposals from

national organisations which represent the interest group at

issue.  This system is designed to meet the interest in

having persons appointed who are well acquainted with the

questions which the Court has to deal with and who can, in

an authoritative way, express the ideas of the interest

groups concerned.

 

        When assessing the question of bias of a lay

assessor regard must of course be had to these members'

special position and the manner in which they are appointed.

Thus it is evident that the fact that the member, generally

speaking, represents a certain interest group cannot imply

that he is biased when dealing with a case where one of the

parties belongs to this interest group.  As has been

underlined in the preparatory works (NJA II 1974 p. 546), it

is not, however, intended that the lay assessors in their

work as judges shall feel bound by the interest which they

can be said to represent.  They shall, as other members,

work as independent judges and not as representatives of

party interests.

 

        The procedure which is applied when appointing lay

assessors has inevitably as a result that persons are

appointed who are attached to the organisations who make

the proposals and who are loyal to the aims of these

organisations and are prepared to work for them.  This can

raise doubts as to a member's impartiality in case the issue

before the Court can be understood as an attack on the

organisation to which the member belongs.  The aim of the

action brought by the (applicant association) in this case

has been that the association should be accepted as the

property owner's negotiating partner, thereby replacing the

tenants' union of Stockholm.  The applicant association

appears to take the viewpoint that every member who has a

close attachment to the tenants' movement, for that reason

alone, is biased when dealing with such a case.

 

        In view of this, it should first be pointed out that

it is not the task of the lay assessors of the House and

Tenancy Court to represent their organisations.  They should

represent the whole interest group at issue without regard

to involvement in organisations.  The legislation is

obviously based on the assumption that the lay assessors

shall be able to deal impartially also with disputes where

direct organisation interests are at issue, and it is not

compatible with the provisions of the Act generally to

consider members attached to an organisation as biased in

such disputes.  In other words, it has not been intended that

the same approach to the question of bias as was expressed

in the case NJA 1978 p. 464 in regard to a lay member of a

Real Estate Court shall be applied to lay assessors in the

House and Tenancy Court.  It is another matter that grounds

for disqualification can of course be at hand if the member

has been involved in the particular dispute which is subject

to the Court's examination.

 

        To accept the applicant association's view on the

question of disqualification would entail certain problems.

Thus it would be required that the House and Tenancy Court -

as the Rent Boards - had access to members or substitutes

who stood outside the national organisations on the market

and who could take part in cases of the kind here at issue.

It would probably turn out to be rather difficult to find

such persons who in other respects could fulfil the

qualification requirements of the Act.  Furthermore, these

members would only be working on the Court to a very limited

extent and they would therefore not acquire the necessary

experience of the judicial activity.  A system with special

members for certain kinds of disputes would furthermore give

the impression that it is the task of the lay assessor to

work for a certain party's interest in the case, an element

which would conflict with what is the aim of the interest

representation on the Court.

 

        As a result of the above, the fact that Mr.  Svensson

had a leading position in the National Tenants Union cannot

as such be considered to have been a reason to disqualify

him from taking part in the House and Tenancy Court's

examination of the (applicant association's) appeal as a lay

assessor.  No other fact which can be a reason to disqualify

Mr.  Svensson has been invoked by the association."

 

52.     In a proposal of the Governmental Committee on the Judicial

Procedure (rättegångsutredningen) concerning the participation of

experts in courts (Översyn av rättegångsbalken 3.  Expertmedverkan och

specialisering, SOU 1987:13), certain critical remarks have been made

against the fact that lay assessors attached to the organisations on

the rent market participate in the Rent Boards and the House and

Tenancy Court inter alia when deciding on issues of retention of a

negotiation clause (pp. 183 - 184).

 

        e.      Publicity of court decisions

 

53.     According to Chapter 12, Section 4 of the 1980 Secrecy Act

(sekretesslagen) the information contained in a court judgment or

decision is public provided that the court has not ordered that it

should be secret.  Such an order must not cover the ultimate judgments

of the court unless national security interests or other interests of

particular importance make this absolutely necessary.

 

        These rules apply to the House and Tenancy Court.  The

decisions of Rent Boards are always public as there are no rules in

the Secrecy Act which apply to them (with one exception which is of no

relevance in the present context).

 

54.     According to Chapter 5, Section 5 of the Code of Judicial

Procedure, which applies to both Rent Boards and the House and Tenancy

Court, judgments and orders shall be pronounced in open court.  Only

insofar as the judgment or order contains information which is

declared secret in accordance with Chapter 12, Section 4, second

paragraph of the Secrecy Act, the judgment or decision shall be

pronounced in camera.  As mentioned above this rule only applies to

the House and Tenancy Court.

 

        f.    Other rules

 

55.     Chapter 11, Sections 1, 2, 5 and 7 of the Instrument of

Government (regeringsformen) reads:

 

        Section 1

 

        (Swedish)

 

"Högsta domstolen är högsta allmänna domstol och

regeringsrätten högsta förvaltningsdomstol.  Rätten att få

mål prövat av högsta domstolen eller regeringsrätten kan

begränsas genom lag.  I högsta domstolen och regeringsrätten

får endast den tjänstgöra såsom ledamot som har utnämnts

till ordinarie domare i domstolen.

 

Annan domstol än högsta domstolen eller regeringsrätten

inrättas med stöd av lag.  Om förbud mot inrättande av

domstol i vissa fall föreskrives i 2 kap. 11 § första stycket.

 

Vid domstol som avses i andra stycket skall finnas

ordinarie domare.  I fråga om domstol som har inrättats för

handläggning av en viss bestämd grupp eller vissa bestämda

grupper av mål får dock i lag göras undantag härifrån."

 

(English translation)

 

"The Supreme Court is the highest ordinary court and the

Supreme Administrative Court the highest administrative

court.  The right to have a case examined by the Supreme

Court or the Supreme Administrative Court can be limited by law.

 

Only a judge who has been appointed ordinary judge

in the court may participate in the Supreme Court and

the Supreme Administrative Court.

 

Other courts than the Supreme Court and the Supreme

Administrative Court may be be instituted under the law.

Regarding prohibition against the institution of courts in

certain cases, there are provisions in Chapter 2, Section 11,

first paragaraph.

 

In a court referred to in the second paragraph there

shall be ordinary judges.  As regards a court which has been

instituted for the handling of a specific group of cases or

certain specific groups of cases, there may be exceptions

from this rule in the law."

 

Section 2

 

(Swedish)

 

"Ingen myndighet, ej heller riksdagen, får bestämma, hur

domstol skall döma i det enskilda fallet eller hur domstol

i övrigt skall tillämpa rättsregel i särskilt fall."

 

(English translation)

 

"No public authority, nor the parliament, may decide,

how a court shall decide in the individual case or

how the court in other respects shall apply a legal

provision in a particular case."

 

Section 5

 

(Swedish)

 

"Den som har utnämnts till ordinarie domare får

skiljas från tjänsten endast

 

1.      om han genom brott eller grovt eller upprepat

åsidosättande av tjänsteåliggande har visat sig

uppenbarligen olämplig att inneha tjänsten,

 

2.      om han har uppnått gällande pensionsålder eller

annars enligt lag är skyldig att avgå med pension.

 

Har ordinarie domare skilts från tjänsten genom

beslut av annan myndighet än domstol, skall han kunna

påkalla domstols prövning av beslutet.  Detsamma gäller

beslut varigenom ordinarie domare har avstängts från

utövning av sin tjänst eller ålagts att undergå

läkarundersökning.

 

Om det påkallas av organisatoriska skäl, får den som

har utnämnts till ordinarie domare förflyttas till annan

jämställd domartjänst."

 

(English translation)

 

"A person who has been appointed as ordinary judge

may be removed from his office only

 

1.      if, through a criminal offence or gross or

repeated negligence of his official duties, he has

shown himself manifestly unfit to hold the position,

 

2.      if he has attained the applicable age of pension

or otherwise according to law is obliged to resign with

pension.

 

If an ordinary judge has been moved from his post through a

decision by another authority than a court, he should be

able to request a court examination of the decision.  The

same applies in respect of a decision as a result of which

an ordinary judge has been prohibited from performing his

duties or been obliged to undergo a medical examination.

 

If it is required from an organisational point of view a

person who has been appointed ordinary judge may be removed

to another comparable post as a judge."

 

Section 7

 

(Swedish)

 

"Ingen myndighet, ej heller riksdagen eller kommuns

beslutande organ, får bestämma, hur förvaltningsmyndighet

skall i särskilt fall besluta i ärende som rör

myndighetsutövning mot enskild eller mot kommun eller som

rör tillämpning av lag."

 

(English translation)

 

"No authority, nor the parliament or a municipal organ with

the power of deciding, may decide, how an administrative

authority shall, in a particular case, decide if the matter

concerns the exercise of public office against the

individual or against a municipality or if it concerns the

application of law."

 

III.    SUBMISSIONS OF THE PARTIES

 

56.     The parties' submissions on the merits have been made both at

the admissibility stage and at the merits stage.  The following is a

summary of the submissions on the merits.

 

A.      The applicant

 

a.      Article 6 of the Convention

 

aa.     "independent and impartial tribunal"

 

57.     The applicant submits that his case was not heard in public by

an independent and impartial tribunal.  The applicant concedes that the

Rent Board and the House and Tenancy Court are relatively independent

of the Government, although less than the ordinary courts.  For

instance the members of the House and Tenancy Court are not appointed

for life but for three years only.  It is however more important to

ensure their independence vis-à-vis the parties.  An organ one of

whose members depends on one of the parties is not independent.  Even

though a clear connection with the other party to the proceedings, the

landlord Mr.  Johansson, is not known, it must be recalled that the

true adversaries were the two unions which live from the negotiations.

Furthermore, the landlord was represented by an employee of the

landlords' union.

 

58.     The persons sitting on the Rent Boards and the House and

Tenancy Court are dedicated to the interests of their respective

unions.  One of the two unions had even succeeded in getting one of

their employees (Mrs.  Kåremo) on the House and Tenancy Court.  A

relationship exists between independence and impartiality as the

former is designed to guarantee the second.  The lay assessors cannot

judge a case in a manner which ensures equality of arms.  The

applicant is sure to be faced with opponents in both authorities.

 

 

59.     As to the question whether the Rent Board can be considered

as a "tribunal" within the meaning of Article 6 the applicant refers

to the fact that Swedish law does not recognise the Rent Board as a

court.  It follows from this fact that the Rent Board, being an

administrative organ, cannot determine preliminary issues whereas the

courts can do so.  The applicant also refers to the fact that the Rent

Board cannot order the production of documents, whereas the Code of

Judicial Procedure prescribes for the ordinary courts that a party has

the right to request an order for the presentation of documents, not

only against the opposite party but also against anybody else, subject

only to certain exceptions (Chapter 28, Sections 1 to 5 and 7 to 9 of

the Code).

 

        The applicant submits that this shows that there are important

differences between the rules of procedure for the Rent Board on the

one hand and the rules of procedure for the ordinary courts on the

other hand.

 

60.     There can be no doubt that the Rent Boards are established

by law and that the procedure followed resembles to a large extent

that before a court in a civilised country.  However, it is

appropriate to invoke the maxim under English law: "justice must not

only be done, it must be seen to be done".  The applicant submits that

the fact that the organ is not considered as a court in domestic law

is significant.  An organ which is not considered by the internal law

as a court cannot be regarded as such a court in the eyes of the

public.  The prestige which is given to to an organ which is called a

court is very important.

 

        It would appear certain that the esteem of the Rent Boards

in the eyes of the public suffers from the fact of their composition

with partisan members.  It is therefore possibly in the absence of an

evident impartiality that the reason for this general non-esteem is to

be found.  With another composition and with some changes in the

procedure the Rent Boards could, according to the applicant, be

considered as satisfying the requirements of a "tribunal".  Such a

reform however would be contrary to the aim of the Act in question

which is generally to exclude certain disputes between tenants and

landlords from the jurisdiction of the ordinary courts with a view to

entrusting them to the unions.  In this respect it is contrary to the

law of logic to consider these tribunals as tribunals within the sense

of Article 6.

 

61.     As regards the general manner in which cases are distributed

among judges in the courts in Sweden it is known that this is done by

the method which is called "lottning".  The Registrar of the Court

designates the cases in an effort to place them with different groups

with as equal work as possible.  It does not appear probable that in

the House and Tenancy Court a special group has been chosen to

determine the applicant's case, a group which would be in principle

more unfavourable to his case than another group.

 

        As regards the Rent Board the applicant notes that it is

always the same group which decides his cases, since each group has a

predetermined district assigned to it.

 

62.     Referring to the statement by the responsible minister in the

Government Bill No. 1974: 151, page 103 the applicant submits the

following.  The Act concerning the protection of the employees

guarantees for each employee in Sweden that he cannot be fired without

objective and well-founded reasons.  It follows that the judges in the

House and Tenancy Court enjoy a security of employment which is less

good than, for example, the personnel at the Registry of the Court.

It is evident that the judge who has lost the unions' confidence will

not be renewed in his mandate when it expires after three years.  The

judge will have no right to compensation as provided for in the Act on

the Security of Employment (lagen om anställningsskydd) and he will

not receive any warning in advance.

 

        Normally a person who is fired without well-founded reasons

has a right to be reinstated in his functions by a court.  If the

employer refuses to reinstate the person in question the employee has

the right to an indemnity corresponding to at least sixteen months'

salary provided he has been employed for at least five years.  This

right of indemnity can go up to 48 months of salary for those who are

more than 60 years of age and have been employed for more than ten

years.  It can therefore be seen that the security of employment for

the judges of the House and Tenancy Court is much weaker than for any

other worker.

 

        This is strongly in contrast to the rules for a judge in the

normal court system in Sweden.  The applicant refers by way of

comparison to the Instrument of Government, Chapter 11, Sections 1

and 5.

 

        The result is that the security of employment is weaker for a

judge of the House and Tenancy Court than for an ordinary judge and

that it is even weaker than for any employee in Sweden.  In fact their

security of employment can be compared to ministers or to a

politically elected person.  Moreover, this state of affairs has been

created with the aim of ensuring that the judges of the tribunal

continue to be agreeable to the unions.

 

63.     The applicant submits that it is impossible for him to know

more exactly how the judges of the House and Tenancy Court are

nominated.  There is an obligation to advertise the post as vacant.

In principle the Government should then choose the best among the

candidates who present themselves.  It is, of course, in the choice of

candidates that the margin of appreciation of the Government plays a

rôle, certainly to the benefit of the friends of the tenants' union.

 

        The applicant submits that the fact that there exists for

these posts special requirements and conditions would certainly limit

the number of candidates, a fact which is already an element of

importance for the final choice.

 

        As regards the method for ensuring that the candidates have

the unions' confidence, it appears most probable that this is done in

the most informal manner possible, i.e. by telephone calls to the

interested unions.  This is, of course, a procedure which is

considered inadmissible in the administration at a lower level.  It is

"le bon plaisir du prince" which prevails and it is obvious that the

Government like the tenants' union.

 

        The applicant further refers to the decision by the Supreme

Court referred to in para. 51 above and to a statement in the

SOU 1981: 77 pp. 290-291.

 

64.     As regards the Rent Board, the applicant submits that it is

not an independent organ.  The applicant bases his argument first

on the fact that its composition is such that one must be rather naive

to have confidence in this body since the case regards the interests

of the same two unions which have two representatives on the body.

Secondly the unions have not proposed these two persons in the

interest of the general public but because they were their own people.

Thirdly, the judges depend on the grace of the unions in case they

want to keep their jobs.

 

        It may be interesting to compare with arbitration boards where

the rules on disqualification are much stronger.

 

        The applicant observes that Mrs.  Kåremo, the lay assessor of

the House and Tenancy Court, had worked loyally for a long time for

her union and she evidently enjoyed confidence there.

 

        In these circumstances, i.e. when the dispute concerns the two

unions which have the privilege of proposing the lay assessors, it

appears clear that neither the Rent Board nor the House and Tenancy

Court can be considered as impartial.  These instances were not even

independent.

 

bb.     "public hearing"

 

65.     The applicant submits that the House and Tenancy Court cannot

be considered as an equivalent to a Court of Cassation.  It has

plain jurisdication and is a court at least according to Swedish

law.  There is accordingly no reason to find that the House and

Tenancy Court would be dispensed from the stipulations of Article 6

of the Convention.

 

66.     As regards the question of whether a failure of one

party to ask for a hearing should be considered in general as a

waiver, the applicant would reply in the negative.  Swedish courts

never examine a case without hearing the parties in person, except of

course for default judgments when a party has failed to present

himself.  The applicant refers to the practice of the Patent Appeals

Court (patentbesvärsrätten).  This Court has the practice of sending

to the parties a notice of when the case is ripe for decision.  The

notice indicates that the parties should submit any supplementary

observations which they might wish to make before a particular date.

At the same time, the parties are informed that they should ask for a

hearing if they wish to have one.  The Court, at the same time,

declares that it may decide the case without a hearing if the parties

do not wish to have one.  A party which does not request a hearing in

such a situation has effectively renounced the possibility.  However,

the applicant submits that he has not renounced the right to a hearing

in that sense in the present case.  The notice from the House and

Tenancy Court of 28 December 1983 shows this clearly.  The applicant

has understood that this message was an expression of the opinion

that a request for a hearing would be futile.

 

67.     The applicant has made a visit to the Registrar of the House

and Tenancy Court in order to inform himself of the possibilities of

obtaining a hearing at the request of a party.  He has found the

following:  The Court determines between 600 and 700 cases a year.  In

the course of 1986, up to 3 September 1986 (when the applicant visited

the Court), the Court had held only 13 hearings where the parties were

present.  The applicant has examined these 13 cases and he has found

that in each of these cases, the Court has heard either witnesses

under oath or the parties under a solemn declaration (sanningsför-

säkran).  The applicant has not had the possibility of scrutinising

the other files, i.e. around 400 files, to see in how many cases a

request for a hearing has been refused.  It appears, however, that it

is highly unlikely that these cases are without requests for hearings.

 

        The applicant is himself a lay member of the Regional

Administrative Court (länsrätten) of Stockholm and he is therefore

rather well-informed as to the general chances of obtaining a hearing

particularly in the Courts of Appeal.  His apprehensions as regards

the possibility of requesting a hearing are confirmed by the above

result of his study.  It is thus as a result of his knowledge that he

has found it useless to ask for a hearing and this is therefore the

reason why he did not ask for one.

 

68.     In the opinion of the applicant, it appears clearly from the

text of Article 6 of the Convention that an individual has the right

to be heard at a public hearing by a tribunal when the case concerns

the determination of his civil rights and obligations.  The applicant

has not enjoyed this right before the House and Tenancy Court.

 

cc.     Were the decisions "pronounced publicly"?

 

69.     As regards the decision of the House and Tenancy Court

concerning the challenge of the lay assessors, it is evident that this

decision was not publicly pronounced since the applicant himself had

to take special steps to be informed thereof.

 

70.     As regards the other decisions, they have been brought to the

applicant's attention by ordinary post.

 

71.     The Government have submitted that the decisions were kept at

the Registry of the bodies concerned, that everyone had the right to

be informed of the decisions, and that therefore the decisions had

been publicly pronounced within the meaning of Article 6.

 

        It is true that it is possible for anyone to go to the

Registry and request that they bring along the file of each case

which has been determined.  It remains to be examined whether this can

be regarded as sufficient publicity within the meaning of Article 6 of

the Convention.  The applicant submits that in his opinion, the

publicity of the judgment can hardly be separated from the publicity

of the entire procedure.  In principle, the ideal situation would be

that a tribunal hears the parties and then delivers judgment after

deliberations which are so short that the public can fruitfully wait

in the tribunal.

 

72.     Since it is useless to read out a judgment in an empty room,

and there is a great risk that the room would be empty, Article 6 must

be read in its entirety.  What must for instance be taken into account

are the regulations concerning the right for a High Contracting Party

to prohibit access to the hearing on certain conditions enumerated,

except for the pronouncement of the judgment.  This presupposes a

hearing with access of the public to the hearing room followed more or

less immediately by a judgment.

 

        The authors of the Convention have obviously wished to

prohibit cursory procedures "à la sauvette" and this is certainly one

of the aims of the rules on publicity contained in Article 6.  The

great Swedish author, Strindberg, has said that injustice is "being

hanged in silence", thereby implying that in a democratic country, the

oppression against the individual is possible only when the public

opinion does not know anything.

 

73.     The public opinion is not formed as a result of every

individual taking personal knowledge of the facts of every dispute but

because there are individuals such as journalists who inform

themselves of the interesting facts.  The public hearings of tribunals

are an important source of information of the manner in which justice

is done in a democratic state.  Democracy can obviously not have much

sense without free access to information.

 

        It appears evident that the authors of the Convention have

regarded the access to information about what happens in tribunals as

so important for the public and the parties involved that it has been

necessary to provide for public hearings in all cases where a superior

interest does not prevent it.

 

74.     It also appears to be evident that the intention was to

lay down a formal procedure from which it would follow that the

parties were not prevented from submitting orally all the arguments

which they thought would support their case.  Oral pleadings is part

of the European heritage.  The alternative to an oral procedure must

also be considered, i.e. a written procedure, in order to understand

why the authors of the Convention have so clearly provided for an oral

procedure in cases concerning civil rights and obligations or in

criminal cases.

 

        The characteristics of the written procedure are a bunch of

papers, files filled with arguments in a depressing mixture,

important, instructive, indifferent and without sense.  From all of

this, it must be traced what is true, what is false, what is proven,

what is notorious, what has to be accepted by legal presumption and

when in doubt, the question of the burden of proof must be considered.

It goes without saying that a tribunal, which has to take its decision

on the  basis of a file in such a case, has enormous difficulties.  The

task is not less for the parties.  To act well, it is necessary not

only to refute all of the adversary's arguments, but it is also

necessary to try to prejudge the thoughts of the judges of the

tribunal who try to combine the facts which have not been combined

explicitly by the parties.  It often happens in the written procedure

that the final judgment surprises both parties, because the tribunal

has found in the file an argument which has been ignored by the

parties or an argument which has been recognised by the parties as

false, since they both generally know the facts better and they did

not find it useful to refute this argument.

 

75.     The advantage of an oral procedure, apart from the fact of

being equitable, is that the tribunal may hear and listen to the

parties and above all, each party will hear and listen to what the

adversary has to say and may immediately clarify the mistakes of the

adversary.  The tribunal also has the possibility of putting questions

directly to the parties in order to clarify the facts.  There is no

doubt that the oral procedure is advantageous from the point of view

of justice.  The advantage of an oral procedure must also be known to

the Commission, having regard to its own procedure.

 

76.     The applicant submits that the present issue is of the

greatest importance, not the least in Sweden where a lot of cases

concerning disputes regarding civil rights are determined by

administrative courts which decide after a written procedure.  The Act

on Administrative Procedure provides in Section 9 that the procedure

should be written.  It is true that the Act on the House and Tenancy

Court is different since the hearing can cover the whole case and not

only a particular question but it is a fact that in principle the

procedure is written.

 

        In conclusion, no decision on the case has been "publicly

pronounced".

 

b.      Article 8 of the Convention

 

77.     The right to respect for the applicant's home has been

violated.  The contractual rights and obligations relating to the

applicant's flat form an integral part of his home.  Were this not the

case, the tenant would be in the same position as an illegal occupant

("squatter").  In fact the only difference between legal occupiers and

"squatters" is that the former have a proper contractual agreement

with the landlord and the others have none.  The notion of "home"

("domicile" in French) is not merely four walls and a door.

 

c.      Article 11 of the Convention

 

78.     It is true that the applicant was not forced to join the

tenants' union.  By forcing him to contribute financially to the

union, the law indirectly relieved the union of making any effort to

win him as a member while at the same time being automatically ensured

of his financial support.  It is therefore a case of forced

association, contrary to Article 11, as it is impossible to escape

from the union's control.

 

d.      Article 13 of the Convention

 

79.     In connection with the complaints based on Article 13 the

applicant complains not only of the legislation but also of violations

of the Convention.  Admittedly the Contracting Parties are not

required to make the Convention directly applicable in domestic law

but if they do so they are less likely to find themselves committing a

breach of Article 13.  The decision of the Supreme Court of

21 September 1982 in the Hyresgästföreningen Kroken No. 5 case (para.

51 above) is evidence of the absence of a domestic remedy with regard

to challenges.

 

e.      Article 1 of Protocol No. 1

 

80.     The applicant's right to respect for his possessions has not

been observed.  It is unacceptable that legislation should appoint "ex

officio" a representative to decide an economic dispute of a private

nature and at the tenant's expense.  The amounts constituting

this remuneration are paid by all the tenants.  In Sweden it is

possible to confer a public task on private organisations

(e.g. the technical testing of motor vehicles) but in these cases

there exist remedies for abuse or excess of authority.  In the instant

case the applicant had no such remedy.

 

 

B.      The Government

 

a.      Article 6 of the Convention

 

81.     The Government concede that Article 6 applies to the

proceedings as they related to the determination of the applicant's

civil rights and obligations.

 

aa.     "independent and impartial tribunal"

 

82.     The fact that the Rent Board is considered as an

administrative authority in Swedish law is not decisive for the

interpretation of the Convention.  A "tribunal" must be independent,

impartial and established by law.  It appears from the Act on

Lease Boards and Rent Boards that the Rent Boards are

established by law.

 

        The House and Tenancy Court is also established by law

according to the Act on the House and Tenancy Court.

 

83.     There is no doubt as to their independence.  Under the Swedish

Constitution (Chapter 11, Section 2 of the Instrument of Government)

no authority can decide in what way a court shall make its decision.

Administrative agencies enjoy a similar independence (Chapter 11,

Section 7) when exercising official power in cases relating to

individuals or when they apply the law.

 

84.     The objection that the Rent Boards and the House and Tenancy

Court are not impartial is mainly directed against the lay assessors.

According to Swedish tradition the ordinary first instance courts have

lay assessors.  At present the appeal courts also have such assessors.

The election of such lay assessors is regulated by the Code of Judicial

Procedure.  They are chosen by the local and county councils

respectively.  They are not chosen for a particular case but for a

period of six years.

 

        The specialised courts also have lay assessors (e.g. the

Labour Court).  On account of their specialisation these assessors

must be recruited in the professional organisations of the relevant

fields of activity.  They are appointed for a specific period and

considered to act as independent judges.  They are subject to the same

provisions relating to challenge as the judges.

 

        These principles also apply to the lay assessors of the House

and Tenancy Court.  They judge in their own name and not as

representatives of their organisation.  In principle the same rules

apply to the lay assessors of the Rent Board.  The only difference

between these assessors and those in the Court would appear to be that

the lay assessors of the Rent Board do not take the judicial oath, but

this is in no way decisive in assessing their impartiality.  The

principle of objectivity applies whatever the political or other

connections of the judges.  They are under an obligation to act

"according to law" and subject to a system of control in the exercise

of their powers.

 

85.     All Housing Judges are given three-year mandates.  Contrary to

the Rent Judges of the Rent Board, the legally trained members do not have

permanent positions on the Court.  This means that during their mandate

in the House and Tenancy Court they are formally entitled to hold

another position, either permanent or non-permanent, as judges in the

general courts.  They are entitled to return to such a position after

expiry of their mandate.  However, in practice their mandate is

generally prolonged for a further three-year term or they are

promoted.  The work on the House and Tenancy Court is a full-time

occupation.

 

        As with other high judicial appointments, no application

procedure precedes the Government's appointment of Housing Judges.  The

formal requirements are that the person appointed Housing Judge shall

be a legal expert and an experienced judge.  Persons who might be

presumed to represent the interests of property owners, tenants or

freehold owners are not eligible.  There is normally no documentation

relating to the appointment other than the written authorisation.  In

the preparatory stages of appointments in the Ministry of Justice no

contact is made with either Rent Boards, the House and Tenancy Court

or any of the interested organisations with a view to obtaining

opinions as to the suitability of the persons in question.

 

86.     Cases are allocated to sections of the Court.  Each Housing

Judge is responsible for one such section, except for the President.

The Housing Judge is court rapporteur, i.e. he is responsible for the

preliminary work on the cases of his section.

 

87.     The lay assessors of the House and Tenancy Court are appointed

for three-year periods in the same way as for the Rent Boards.

However, it is the Government and not the National Board of the

Judiciary which make the appointments.  A difference is that the

lay assessors of the House and Tenancy Court must take the judicial

oath before taking up their functions.  This oath also illustrates the

idea that the lay assessors in their capacity as members of the Court

shall be independent and representing no one but themselves.

 

88.     The House and Tenancy Court prepares a schedule of service

for the lay assessors with respect to each autumn and spring session.

The members to be convened on any particular day are decided upon,

e.g. which days the members familiar with administration of apartment

buildings or tenants' matters shall be present and which days are

planned for larger groups of members.  The proposed schedule is sent

out to the organisations, which decide upon which of the Government-

appointed members shall participate on the days stipulated.  The

schedule is sent out a long time in advance and at a stage when it

is not known which cases will be dealt with.

 

89.     As regards the statement in the Government Bill 1974:151

p. 103 the Government recall that under the Constitution (Chapter 11,

Section 1 of the Instrument of Government), there must be permanent

judges in the ordinary courts and the administrative courts.

 

        A person appointed a permanent judge may, according to Chapter

11, Section 5 of the Instrument of Government, be removed from his

office only "if through a criminal act or gross or repeated negligence

of his official duties, he has shown himself manifestly unfit to hold

the position" or for reasons of retirement.  If a permanent judge has

been removed from his office through a decision made by an authority

other than a court, he shall be entitled to call for a court to

review the decision.

 

        From this rule, i.e. that judges shall be permanent, exceptions may

be made with respect to courts which have been instituted for the

hearing of a specified group or of specified groups of cases.  Such

an exception may only be made by law.

 

        In the travaux préparatoires of the Instrument of Government

it is said that the independence of the courts usually demands that

the judges have the same protection of their employment as permanent

judges but that this rule cannot be without exception.  Certain

courts, as the Labour Court and the Market Court (marknadsdomstolen),

"do work under such special conditions that it seems justified that

the judges in those courts also for the future, as for the present,

are appointed only for a certain period".

 

        Under the provision of the Instrument of Government

mentioned above, the professional judges in the House and Tenancy

Court are appointed for a period of three years instead of being

appointed permanently.  In the Government Bill 1974:151 p. 103 it is

said that a condition for the Court to fulfil its task to settle

disputes between landlords and tenants is that the organisations on

the rent market have confidence in the Court and its members.  With a

reference to the corresponding provisions in the Act on Litigation in

Labour Disputes it is said that the general principle that judges

should be permanent ought to be set aside as regards the professional

judges in the House and Tenancy Court.  The meaning of the statement

concerning the confidence in the Court can be found in the travaux

préparatoires of the Act on Litigation in Labour Disputes (Government

Bill 1974:77 p. 113) where it is said that if there is no such

confidence in the Court and its members the importance of the Court

will decrease correspondingly.

 

        It should be noted that a similar provision was also found in

the laws preceding the 1974 Act, namely the 1928 Act on the Labour

Court, and, before that, in the 1920 Act on Arbitration in Certain

Labour Disputes.  Furthermore, the composition of the House and

Tenancy Court is reminiscent of the composition of the National Rent

Council, which was replaced by the House and Tenancy Court with the

exception that the professional judges were not employed by the

council.  Instead the judges got paid for each commission.

 

        There are no special means by which it is ensured that the

parties have confidence in the Court and its members.  As a matter of

fact, the organisations are never consulted in regard to appointments

of the professional judges.  Instead, as was stated in the travaux

préparatoires of the Act on Litigation in Labour Disputes (Government

Bill 1974:77 p. 114), it has up till now never occurred that a

professional judge, due to lack of confidence, has not got his

appointment prolonged, and it will probably not occur in the future

either.  It is anticipated in the travaux préparatoires that a new

appointment will be given when the three year period has expired

(Government Bill 1974:151 p. 103).  This has also been the rule.

 

90.     In conclusion the Government consider that the Rent Board and

the House and Tenancy Court are impartial tribunals within the meaning

of Article 6.  They submit that the character of the dispute at issue

before the national organs does not alter this conclusion.

 

bb.     "public hearing"

 

91.     Generally speaking, if the Rent Board could not be considered

as a "tribunal" within the meaning of Article 6, it seems clear that

the condition of Article 6 must be satisfied in the House and Tenancy

Court instead.

 

92.     The Government invoke the Commission's decision on the

admissibility of Application 8005/77 of May 1979 where the Commission

stated i.e. that Article 6 para. 1 of the Convention does not require

that the defendant shall always be present at the hearing provided

that he has the facilities for arguing his case on an equal footing

with the opposing party.  In the Government's opinion Article 6 does

not guarantee oral proceedings at all, as long as the principles of

"publicity" and of "equality of arms" are observed.  In this context

the Government refer to the general legal principle, saying that the

court is obliged to communicate all writings to the adverse party

and that the court may not base its decision on facts supplied by one

party and not communicated to the other party.  The prohibition for

the House and Tenancy Court to change the decision of the Rent Board

to the detriment of the adverse party unless he has been given an

opportunity to respond, is based on this principle.  Also the

importance of the Swedish principle of general access to official

documents should be emphasised.  This principle means tht there is

full publicity about the proceedings even if there is no oral hearing.

 

93.     The Government have never interpreted Article 6 as an

unconditional demand for an oral hearing in all cases regarding the

determination of civil rights or criminal charges.  In the Swedish

translation of the Article the expression "opartisk och offentlig

rättegång" is used for the words "fair and public hearing".  The French

text for this expression reads "soit entendue équitablement,

publiquement".  The French wording does not seem to have the same

categorical meaning as the English word "hearing" might indicate

according to its exact wording.  The French text seems rather to put

the emphasis on the adjectives "fair" and "public".

 

94.     In the Government's opinion, the meaning of the prerequisite

a "public hearing" must be determined in the light of the system of

procedure as a whole.  It ought not to be looked upon as solely a

question of whether there has been an oral hearing with the parties

being present or not in a specific case.

 

95.     Accordingly, and since the parties may argue on an equal

footing in the House and Tenancy Court, the prerequisite of a "public

hearing" in Article 6 ought to be looked upon as fulfilled as regards

the House and Tenancy Court, even if there has been no oral hearing

with the parties present.

 

96.     On the other hand, the House and Tenancy Court was never meant

to serve as the sole instance for rent disputes but as an instance of

retrial in these matters.  Accordingly, and since the proceedings

before the Rent Boards are oral as a rule, the question of whether the

procedure before the House and Tenancy Court, as the sole instance,

would be sufficient in respect of Article 6 has never been brought to

a head.

 

97.     If the Commission should arrive at the opinion that Article 6

of the Convention requires an oral hearing, the Government argue as

follows.

 

98.     The nature of the case must be considered to be of vital

importance for the question whether an oral hearing should be held or

not.  However, the opinion and any requests of the parties are also of

great importance, even if not decisive.  It must also be considered if

an oral hearing can be assumed to add anything to the case which does

not already appear from the written observations submitted by the

parties.  Different aspects must be considered, depending on whether

the case in question is a criminal case or a civil case.  Other

circumstances of importance are of course whether the facts of the

case are undisputed, leaving the Court to decide only upon the

interpretation of the law as applied to these facts.

 

99.     If the party in question, though given the opportunity of

doing so, has not requested an oral hearing when the applicable

legislation provides for such a right, it must be concluded that the

party has in effect waived his right.  However, it should be stressed

that according to Swedish legislation it is quite possible to have an

oral hearing even if none of the parties have requested it.

 

100.    By letter of 28 December 1983 sent by the House and Tenancy

Court to the applicant, the latter was notified that the House and

Tenancy Court might decide the case without an oral hearing.

 

        As has already been said the opinion of the parties is of

great importance when the Court decides whether or not to order an

oral hearing.  It is expressly laid down in the Act on the House and

Tenancy Court (Section 20) that there must be an oral hearing, should

one of the parties so request, provided that the oral hearing is not

unnecessary and that there are no specific reasons against a hearing.

 

        There was no explicit obligation for the House and Tenancy

Court to inform the applicant that the Court might decide the case

without an oral hearing.  By means of this letter the applicant was

given an opportunity to object to the Court giving its decision

in the matter without an oral hearing, and to add whatever information

he wanted.  Since the applicant did not react to the letter at all,

the letter of 28 December 1983 can be said to have had some

significance with regard to the question whether there should be an

oral hearing.

 

101.    It is difficult for the Government to state whether a request

for an oral hearing would have resulted in a hearing in this specific

case.  This is the case not only because of the constitutional

prohibition for the Government to express their opinion on how a court

should deal with a specific case.  To a large extent the answer

depends on what reasons and motives the applicant would have referred

to in his application for an oral hearing.  A hearing can be refused

only if it is unnecessary or if there are other specific reasons

against a hearing.

 

102.     The applicant's complaint that he was not given a hearing in

the House and Tenancy Court raises the question of the extent to which

Article 6 applies to a higher court when the right of appeal is not

guaranteed by the Convention.  Referring to Article 2 of Protocol No.

7, the Government argue that Article 6 of the Convention does not

apply in all respects to proceedings in a higher court.  The

Contracting Parties should have a wide discretion in organising their

appeal system.  In a system with several degrees of jurisdiction the

procedure must be rationalised to ensure a sound administration of

justice.

 

103.    A further important factor to be taken into consideration is

the Swedish principle of general access to official documents

(offentlighetsprincipen).  According to this principle - which is laid

down in the Freedom of the Press Act (tryckfrihetsförordningen)

forming part of the Swedish Constitution - anybody has the right to

have access to the written submissions to the Rent Boards and to the

House and Tenancy Court.  This means that there is full publicity

about the proceedings even if there is no hearing.  The Government

maintain that this specific feature of the Swedish legal system should

be given special regard when Article 6 of the Convention is construed.

In all events this provision was respected since there was a hearing

before the Rent Board.

 

cc.     public pronouncement of judgment

 

104.    The Government state that the decisions of the Rent Board and

the House and Tenancy Court were made public at the registries of those

two bodies.  Copies were sent to the parties by ordinary mail.  The

requirements of Article 6 are satisfied provided the decision was

brought to the knowledge of the public at the Court's registry.

 

b.      Article 8 of the Convention

 

105.    According to the applicant the tenancy agreement constitutes

an integral part of his home and the action of the tenants' union

amounts to a violation of Article 8.  The Government consider that

this interpretation of Article 8 goes too far.  This part of the

application is outside the scope of the Convention.

 

c.      Article 11 of the Convention

 

106.    As regards the complaint based on Article 11, i.e. the alleged

right "not to be tyrannised by a union" one does not desire to join,

the Government point out that the Swedish system is a rational system

for re-negotiating almost annually hundreds of thousands of tenancy

agreements.  The fact that in most of the cases one of the parties is

the National Tenants Union does not imply that the persons whose

contracts are affected by the negotiations are members of this union.

Such persons are free to found their own associations.  The

associations taking part in the negotiations must strive to protect

the interests of all tenants.  This part of the application is

therefore incompatible ratione materiae with the Convention or,

in any event, ill-founded.

 

d.      Article 13 of the Convention

 

107.    The complaint based on Article 13 is similar to those put

forward in the case of Hyresgästföreningen Kroken 5 (10144/82 Dec.

11.5.83, D.R. 33, p. 276 but unpublished as regards Article 13).

The applicant seems to be complaining of the legislation as such.

However, Article 13 does not guarantee a remedy for such a complaint.

 

e.      Article 1 of Protocol No. 1

 

108.    The complaint based on Article 1 of Protocol No. 1 has two

aspects:  the fact that the National Tenants Union is entitled to

negotiate on behalf of the applicant and the fact that this union is

entitled to remuneration from non-members.  On the second point the

Government recall that negotiations involve costs.  These are borne by

the tenants as a whole whether or not they are members of the union

taking part in the negotiations.  The amounts charged are in

accordance with the relevant legislation.  The complaint is,

therefore, incompatible ratione materiae with the Convention

or, alternatively, ill-founded.

 

IV.  OPINION OF THE COMMISSION

 

A.     Points at issue

 

109.   The following are the principal points at issue:

 

        -  whether the applicant's case was heard by a "tribunal"

           satisfying in particular the conditions of independence

           and impartiality of Article 6 para. 1 (Art. 6-1) of the Convention

 

        -  whether the requirement of a "public hearing" in Article 6

           para. 1 (Art. 6-1) of the Convention was fulfilled in the

   proceedings before the House and Tenancy Court

 

        -  whether the judgment of the House and Tenancy Court was

           "pronounced publicly" within the meaning of Article 6

           para. 1 (Art. 6-1) of the Convention

 

        -  whether the facts of the case constitute a breach of the

           applicant's right to respect for his private and family

           life as guaranteed by Article 8 (Art. 8) of the Convention

 

        -  whether there has been a breach of the applicant's right to

           freedom of association as guaranteed by Article 11 (Art. 11) of the

           Convention

 

        -  whether there has been a breach of the right to an effective

           remedy as guaranteed by Article 13 (Art. 13) of the Convention

 

        -  whether there has been a breach of the applicant's right to

           the peaceful enjoyment of his possessions as guaranteed by

           Article 1 of Protocol No. 1 (P1-1).

 

B.      Article 6 (Art. 6) of the Convention

 

110.    Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:

 

        "In the determination of his civil rights and

        obligations or of any criminal charge against him,

        everyone is entitled to a fair and public hearing within

        a reasonable time by an independent and impartial tribunal

        established by law.  Judgment shall be pronounced publicly

        but the press and public may be excluded from all or part

        of the trial in the interests of morals, public order or

        national security in a democratic society, where the

        interests of juveniles or the protection of the private

        life of the parties so require, or to the extent strictly

        necessary in the opinion of the court in special circumstances

        where publicity would prejudice the interests of justice."

 

        a.  The applicability of Article 6 (Art. 6) of the Convention

 

111.    It is not contested, and the Commission has already stated in

its decision on admissibility, that the dispute which the applicant

brought before the Rent Board and the House and Tenancy Court related

to a "contestation" (dispute) concerning his civil rights and

obligations, and that accordingly Article 6 (Art. 6) of the Convention was

applicable to those proceedings.  The applicant was thus entitled to a

procedure which satisfied the conditions of Article 6 (Art. 6) of the

Convention.

 

        b.  Is it necessary that the procedure before both

            the Rent Board and the House and Tenancy Court

            conforms with the conditions of Article 6 para. 1 (Art. 6-1)?

 

112.    Article 6 para. 1 (Art. 6-1) of the Convention does not oblige States to

submit "contestations" over civil rights and obligations to a judicial

procedure which at each stage conforms with Article 6 (Art. 6) of the

Convention.  It may be sufficient that administrative or professional

bodies determine the dispute at first instance, provided that their

decisions are subject to review thereafter by a judicial procedure which

satisfies the conditions of Article 6 (Art. 6) (cf.  Eur.  Court H.R., Le

Compte, Van Leuven, and De Meyere judgment of 23 June 1981, Series A

no. 43, p. 22, para. 51 and Öztürk judgment of 21 February 1984,

Series A no. 73, pp. 21-22, para. 56).

 

113.    The Commission notes that it was the House and Tenancy Court

which finally decided on the dispute in the present case, and that the

proceedings before that Court included a full rehearing of the facts

and the law of the case.  It follows from this, on the one hand, that,

irrespective of the character of the Rent Board and of the procedure

before that Board, the proceedings before the House and Tenancy Court

must in all respects satisfy the conditions of Article 6 para. 1 (Art. 6-1) and,

on the other hand, that it is not necessary to examine whether the

proceedings before the Rent Board also satisfied these requirements.

 

114.    Consequently, the Commission will limit itself to

examining whether the proceedings before the House and Tenancy Court

satisfied the conditions of Article 6 para. 1 (Art. 6-1) of the Convention.

 

        c.  Was the House and Tenancy Court an "independent and

            impartial tribunal"?

 

115.    The case-law of the Convention organs as regards the

meaning of an "independent and impartial tribunal" can be summarised

as follows:

 

        The word "tribunal" is not necessarily to be understood as

signifying a court of law of the classical kind, integrated with the

standard judicial machinery of the country (Eur.  Court H.R., Campbell

and Fell judgment of 28 June 1984, Series A no. 80, p. 39, para. 76).

A tribunal established by law is, within the meaning of Article 6 (Art. 6), a

body, independent of the parties and impartial, upon which the

national legislation confers a power to take binding decisions in a

particular area, its judicial function being to determine matters

within its competence on the basis of rules of law, following

proceedings conducted in a prescribed manner (Eur.  Court H.R., Sramek

judgment of 22 October 1984, Series A no. 84,p. 17 para. 36).

 

116.    In determining whether a body can be considered to be an

"independent" tribunal, i.e. in particular independent of the

executive and of the parties to the case, regard must be had to the

manner of appointment of its members and the duration of their term of

office, the existence of regulations governing their removal or

guarantees for their irremovability, laws prohibiting their being

given instructions by the executive in their adjudicatory role, the

existence of legal guarantees against outside pressures, the question

whether the body presents an appearance of independence and the

attendance of members of the judiciary in the proceedings (see, inter

alia, the aforementioned Campbell and Fell judgment, pp. 39-41, paras.

78-81 with further references).

 

117.    As to impartiality, it is established case-law that

impartiality can "be tested in various ways": a distinction should be

drawn "between a subjective approach, that is endeavoring to ascertain

the personal conviction of a given judge in a given case, and an

objective approach, that is determining whether he offered guarantees

sufficient to exclude any legitimate doubt in this respect"  (Eur.

Court H.R., Piersack judgment of 1 October 1982, Series A no. 53, p.

14, para. 30).

 

118.    As to the subjective approach, the personal impartiality

of a judge is to be presumed until there is proof to the contrary (see

the same judgment, loc. cit.).

 

119.    The examination of the impartiality cannot be confined to a

purely subjective test; account must also be taken of considerations

relating to the functions exercised and to internal organisation (the

objective approach).  In this regard, even appearances may be

important.

 

120.    The Commission, noting the provisions of the Act on the House

and Tenancy Court, has no doubt that the Court is a "tribunal

established by law" as required by Article 6 para. 1 (Art. 6-1) of the

Convention.

 

121.    As regards the conditions of independence and impartiality the

Commission recalls that the applicant has questioned the independence

and impartiality not only of the lay assessors but also of the

professional judges.

 

122.    As regards the judges, the Commission recalls that they

are appointed by the Government and that appointment to a post as

Housing Judge is not a permanent position, but a three-year mandate.

In practice the mandate is always renewed.  A person who might be

presumed to represent the interests of landlords or tenants is under

Section 7 of the Act on the House and Tenancy Court not eligible to

such a post.  In the Government Bill 1974:151 p. 103 it is said that a

condition for the Court to fulfil its task to settle disputes between

landlords and tenants is that the unions on the rent market have

confidence in the Court.  The Government have explained that the

background to this statement is inter alia that if there was no such

confidence the importance of the Court would decrease.  They have

further submitted that there are no special means by which it is

ensured that the parties have confidence in the Court and its members.

The organisations on the rent market are not consulted prior to the

appointment of a Housing Judge.

 

123.    Under Chapter 11, Section 5 of the Instrument of Government

permanent judges enjoy irremovability.  This rule does not apply to

Housing Judges.  This does not mean, however, that a Housing Judge can

be removed from his post during his term of office.

 

124.    The Commission recalls that in the applicant's case the

Housing Judges held other permanent positions as judges.  Mr.  Svahn

held the post as Chamber President of the Court of Appeal and

Mr.  Anderberg the post of Rent Judge.  In respect of both of these

posts, the judges were irremovable under the Instrument of Government

and in their exercise of their term as Housing Judges they enjoyed a

similar irremovability.

 

125.    The Commission considers that where judges are appointed for a

short period an issue could arise as to the independence of the judges.

 

126.    However, in the present case the fact that the mandate was

only three years is not sufficient to establish that the Housing

Judges were not independent of the executive.  In this regard the

Commission notes the judges held other permanent positions as judges

from which they were irremovable.

 

127.    As regards the question of the "confidence in the Court" as it

appears from the statement in the Government Bill mentioned above, the

Commission has, following the Government's explanations, understood

this to mean confidence in a general sense and there is nothing in the

practical implementation of this aim which indicates that the judges

are dependent on the parties to a dispute before it.

 

128.    Consequently, the Commission finds no reason to doubt the

independence of the House and Tenancy Court vis-à-vis the executive

and the parties.

 

129.    The Commission further finds that there is no evidence,

neither from a subjective nor from an objective point of view, to

suggest that the professional judges failed to meet the condition of

impartiality.

 

130.    Turning to the lay assessors, who in the present case included

Mr.  Tullberg and Mrs.  Kåremo, the Commission recalls that the

Convention in no way prevents the setting up of courts or "tribunals"

which include lay assessors who are experts in a particular field and

indirectly represent party interests, for instance - in the present

case - the landlords and the tenants.

 

131.    The Convention institutions have previously examined the

compatibility of such bodies with the conditions of Article 6 (Art. 6) of the

Convention.  In for instance the case of Le Compte, Van Leuven and De

Meyere (loc. cit., p. 25, para. 58), the Court accepted as an

"independent and impartial tribunal" the Appeals Council of the Ordre

des Médecins in Belgium which was composed of an equal number of

medical practitioners and members of the judiciary, one of the latter

being the Chairman and having the casting vote.  In the case of Ettl

and others (Eur.  Court H.R., Ettl and others judgment of 23 April

1987, Series A no 117, paras. 34-41) the Court found that the Austrian

Land Reform Boards - the Provincial Board and the Supreme Board - were

"independent and impartial" tribunals.  In para. 40 the Court stated

as follows:

 

"As to the three civil servants who, pursuant to the Act,

sat on account of their experience of agronomy, forestry

and agriculture, their membership cannot give rise to doubts

about the independence and impartiality of the boards.  They

were experts in their fields; such experts are needed in

cases concerning land consolidation, which is an operation

that raises issues of great complexity and affects not only

the owners directly concerned but the community as a whole.

The boards' composition enables them to reach balanced

decisions, having regard to the various interests at stake.

Besides, the domestic legislation of the Council of Europe's

member States affords many examples of tribunals in which

professional judges sit alongside specialists in a

particular sphere whose knowledge is desirable and even

essential in settling the disputes within the tribunals'

jurisdiction."

 

132.    The Commission considers that the manner of appointment of the

lay assessors, notably after proposals from the principal unions on

the rent market which are practically always accepted by the

Government, cannot as such be considered to make the House and Tenancy

Court lack the requisite independence and impartiality.  This manner

of appointment can be seen as a practical and effective way of

ensuring that the lay assessors have the required qualifications as

experts in the field of the Court's jurisdiction.

 

133.    Accordingly, the Commission sees no reason to doubt in general

the Court's independence and impartiality as a result of the

participation of lay assessors.

 

134.    However, the essential issue which arises in the present case

concerns the question whether the two lay assessors, having regard to

the manner of their appointment and their particular relation to the

National Tenants Union and Property Owners Union respectively, can be

said to have possessed the necessary impartiality in view of the

particular legal issue brought before the Court by the applicant.  It

will be recalled that the legal issue before the Court was whether a

particular clause in the tenancy agreement should be excluded.  This

clause conferred on unions affiliated to the unions, which had

proposed the lay assessors, certain powers in relation to the future

determination of the rent between the applicant and his landlord.

Moreover, as a result of this clause and the agreements made between

the two unions, the landlord was obliged to transfer 0.3% of the rent

paid by the applicant to the tenants' union.

 

135.    The applicant in essence argues that in view of the issue

before the Court he felt that both lay assessors were prejudiced

against him.  He also submits that being a county councillor

representing the moderate party he is bound to have an adversary in

the lay assessor representing the National Tenants Union which has

socialist inclinations.

 

136.    The Commission finds that the applicant's latter argument is

too remote to substantiate any claim of bias.  As regards the first

argument the Commission recalls that any judge in respect of whom

there is legitimate ground to fear a lack of impartiality must

withdraw.  What is at stake is the confidence which the courts in a

democratic society must inspire in the public (cf.  Piersack judgment,

loc. cit. pp. 14-15, para. 30).  The test to be applied is whether as

a result of a particular fact the impartiality of the court is capable

of appearing open to doubt (ibid., pp. 15-16, para. 31).

 

137.    The Commission notes in this context the statement of the

Swedish Supreme Court (para. 51) that the manner of appointment of lay

assessors "can raise doubts as to a member's impartiality in case the

issue before the Court can be understood as an attack on the

organisation to which the member belongs".  The Commission further

notes the criticism of the Government Committee on the Judicial

Procedure (para. 52) to the effect that it may be open to doubt

whether lay assessors should participate, when the issue before the

Rent Board and the House and Tenancy Court can be said to

substantially affect the interests of the unions.

 

138.    The Commission considers that the outcome of the applicant's

case before the House and Tenancy Court must have been of interest to

the two unions involved.  It is recalled that Mr.  Tullberg, when he

retired in 1979, had been the managing director of the Stockholm

Property Owners Union for ten years and before that its legal adviser

since 1943.  Mrs.  Kåremo was, when the case  was decided by the Court,

still employed by the National Tenants Union.  Accordingly, the two

lay assessors had been, or were, employed by the two unions which were

directly affected and involved as a result of the negotiation clause

in the applicant's tenancy agreement.

 

139.    In these circumstances, the Commission considers that the

impartiality of the two lay assessors is open to doubt.

 

140.    It remains to be examined whether the House and Tenancy Court

nevertheless could be said to satisfy the requirement of impartiality

since, apart from the two lay assessors, it comprised two judges, one

of whom had the casting vote in case of equal vote.

 

141.     In this respect the Commission recalls that in the case of Le

Compte, Van Leuven and De Meyere, the Commission considered that the

Appeals Council composed of an equal number of doctors and judges, one

of the latter having the casting vote, could not be considered as an

impartial tribunal since the medical members were considered to have

an unfavourable opinion of the applicants in the particular case (Le

Compte, Van Leuven and De Meyere, Comm.  Report, 14.9.79, para. 80,

Eur.  Court H.R., Series B no 38, p. 41).  In its subsequent judgment

in the same case the Court disagreed with the Commission's opinion

holding that the presence of judges making up half of the membership,

including the Chairman with a casting vote "provides a definite

assurance of impartiality" (loc. cit., p. 25, para. 58).

 

        However, there are other cases of the Convention organs which

go in the opposite direction.  The Commission refers to the Piersack

case, the De Cubber case and the Sramek case (quoted above).  In these

cases the lack of independence and impartiality of one member of the

court or tribunal sufficed to conclude that the court or tribunal did

not fulfil the conditions of Article 6 para. 1 (Art. 6-1) even if the member in

question was only one of more judges forming the full court.

 

142.    The Commission recalls that in the present case there is a

certain degree of institutionalised partisanship resulting from the

manner of selection and participation of the lay assessors in the

determination of rent disputes.  This system does not as such

constitute a violation of the Convention (cf. paras. 131-133 above).

It is built on the assumption that there is a balance between the

interests which are represented through the participation of the lay

assessors.

 

        However, in the particular dispute which the applicant brought

before the House and Tenancy Court, which was based on the claim that

the negotiation clause should be removed from his tenancy agreement,

both unions could normally be expected to have a common interest to

maintain that clause (cf. para. 138 above).  The Commission therefore

finds that the balance, which was intended to be struck by the

appointment of lay assessors proposed by the two opposing unions on

the rent market, was upset.

 

143.    The Commission considers for these reasons that the bias of

the two lay assessors in respect to the particular issue which the

Court had to decide could not be remedied by the impartiality of the

two professional judges.  Thus the applicant's case was determined by

a tribunal which cannot be regarded as an impartial tribunal within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

 

Conclusion

 

144.    The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the

applicant's case was not heard by a tribunal which satisfied the

condition of impartiality of Article 6 para. 1 (Art. 6-1).

 

        d.  The requirements of a "public hearing" and public

            pronouncement of judgment

 

145.    The applicant also complains that Article 6 para. 1 (Art. 6-1) was not

complied with since there was no public hearing before the House and

Tenancy Court and since the decisions of the Rent Board and the Court

were not pronounced publicly.

 

146.    The Commission considers that in view of its conclusion above

(para. 144) it is not necessary to examine whether Article 6 para. 1 (Art. 6-1)

of the Convention has been violated also in other respects (cf.  Eur. Court

H.R., Sramek judgment of 22 October 1984, Series A no. 84, p. 20, para. 43)

 

Conclusion

 

147.    The Commission concludes unanimously that it is not

necessary to examine whether Article 6 para. 1 (Art. 6-1) of the Convention has

been violated as regards the requirements of a "public hearing" and

public pronouncement of judgment.

 

        C.  Article 8 (Art. 8) of the Convention

 

148.    The applicant alleges that Article 8 (Art. 8) of the Convention has

been violated.  He argues that the contractual rights and obligations

relating to the flat which was his home were themselves an integral part

of his home.  The intervention of the tenants' union, which possessed

a monopoly, in the relationship between him as a tenant and the

landlord amounted to an interference with the rights guaranteed by

Article 8 para. 1 (Art. 8-1) of the Convention and this interference cannot be

justified under Article 8 para. 2 (Art. 8-2).

 

149.    Article 8 (Art. 8) of the Convention 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."

 

150.    The Commission cannot accept the applicant's argument.  It

considers that the facts of the case do not disclose any interference

with the applicant's rights guaranteed by Article 8 para. 1 (Art. 8-1) of the

Convention.

 

Conclusion

 

151.    The Commission concludes unanimously that there has been no

violation of Article 8 (Art. 8) of the Convention.

 

        D.  Article 11 (Art. 11) of the Convention

 

152.    The applicant complains that his freedom of association has

been infringed as a result of the obligatory transfer of the tenant's

right of negotiation to a monopoly union.  He submits that the freedom

of association includes a right not to be tyrannised by a union he

does not want to join.

 

153.    Article 11 (Art. 11) of the Convention reads:

 

        "1.   Everyone has the right to freedom of peaceful assembly and

        to freedom of association with others, including the right to

        form and to join trade unions for the protection of his

        interests.

 

        2.   No restrictions shall be placed on the exercise of these

        rights other than such as are prescribed by law and are necessary

        in a democratic society in the interests of national security or

        public safety, 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.  This Article shall not prevent the

        imposition of lawful restrictions on the exercise of these rights

        by members of the armed forces, of the police or of the

        administration of the State."

 

154.    The Commission recalls that the applicant has voluntarily

entered into a tenancy agreement with his landlord.  The agreement

provides that the amount of the future rent shall be determined

through negotiations between a tenants' union and a landlords' union.

The applicant proposed to the landlord that this clause of the

agreement should be excluded and that the applicant and the landlord

should agree on the rent.  However, the landlord refused and the

applicant's action before the Rent Board and the House and Tenancy

Court did not succeed.

 

155.    The Commission considers that the facts of the case do not

disclose any appearance of an action or a failure to act, by which the

Swedish State can be said to have interfered with the applicant's

rights under Article 11 para. 1 (Art. 11-1) of the Convention.

 

Conclusion

 

156.    The Commission concludes unanimously that there has been no

violation of Article 11 (Art. 11) of the Convention.

 

        E.  Article 1 of Protocol No. 1 (P1-1)

 

157.    The applicant complains that the legislature has given to a

private organisation the right to lay hands on the applicant's money.

He alleges that this amounts to a breach of Article 1 of Protocol

No. 1 (P1-1), which 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."

 

158.    It is recalled that the applicant has freely entered into a

tenancy agreement according to which the future rent is fixed after

negotiations between the tenants' union and the landlords' union.

These unions have an agreement as a result of which the tenants'

association receives from the landlord a commission of 0.3% of the

rent agreed by the unions.  The applicant is dissatisfied with the

fact that 0.3% of the rent he pays to the landlord is transferred to

the tenants' union.

 

159.    The Commission considers that in view of the low percentage

and amount involved the applicant has failed to substantiate that the

payment by the landlord of this amount to the tenants' union

constitutes an interference with the applicant's right to the peaceful

enjoyment of his possessions.

 

Conclusion

 

160.    The Commission concludes unanimously that there has been no

violation of Article 1 of Protocol No. 1 (P1-1).

 

        F.  Article 13 (Art. 13) of the Convention

 

161.    The applicant submits that he has, both before the Rent Board

and the House and Tenancy Court, alleged violations of the rights

guaranteed by the Convention.  However, the House and Tenancy Court

has failed to do its duty to redress the alleged violations, and it

was accordingly not an "effective remedy".  In the alternative, the

applicant submits that there exists no effective remedy which is a

breach of Article 13 (Art. 13) of the Convention.

 

        Article 13 (Art. 13) of the Convention reads:

 

        "Everyone whose rights and freedoms as set forth in

        this Convention are violated shall have an effective

        remedy before a national authority notwithstanding

        that the violation has been committed by persons acting

        in an official capacity."

 

162.    Having regard to its conclusion under Article 6 para. 1 (Art. 6-1), the

Commission considers that it is not necessary to examine the case

under Article 13 (Art. 13); this is because its requirements are less strict

than, and are here absorbed by, those of Article 6 para. 1 (Art. 6-1) (see

inter alia the Sporrong and Lönnroth judgment of 23 September 1982, Series A

no. 52, p. 32, para. 88).

 

Conclusion

 

163.    The Commission concludes unanimously that it is not necessary

to examine separately whether there has been a violation of Article 13

(Art. 13) of the Convention.

 

        G.  Recapitulation

 

164.  - The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the

applicant's case was not heard by a tribunal which satisfied the

condition of impartiality of Article 6 para. 1 (Art. 6-1) (para. 144).

 

      - The Commission concludes unanimously that it is not necessary

to examine whether Article 6 para. 1 (Art. 6-1) of the Convention has been

violated as regards the requirements of a "public hearing" and public

proonouncement of judgment (para. 147).

 

      - The Commission concludes unanimously that there has been no

violation of Article 8 (Art. 8) of the Convention (para. 151).

 

      - The Commission concludes unanimously that there has been no

violation of Article 11 (Art. 11) of the Convention (para. 156).

 

      - The Commission concludes unanimously that there has been no

violation of Article 1 of Protocol No. 1 (P1-1) (para. 160).

 

      - The Commission concludes unanimously that it is not necessary

to examine separately whether there has been a violation of Article 13

(Art. 13) of the Convention (para. 163 ).

 

 

 

 

Secretary to the Commission          President of the Commission

 

 

 

 

       (H.C. KRÜGER)                        (C.A. NØRGAARD)

 

 

APPENDIX I

 

 

HISTORY OF PROCEEDINGS

 

 

Date                    Item

 

 

 

7 September 1984       Introduction of the application

 

28 September 1984       Registration of the application

 

Examination of admissibility

 

6 May 1985             Commission's deliberations and decision

                        to invite the Government to submit

                        observations on the admisibility

                        and merits of the application

 

27 August 1985          Submission of Government's observations

 

15 October 1985         Submission of applicant's observations

 

12 December 1985        Commission's deliberations and decision

                        to hold a hearing on the admissibility

                        and merits of the application

 

9 July 1986            Hearing on the admissibility and merits

                        of the application, the Commission's

                        deliberations and decision to declare

                        the application admissible.

 

                        Applicant

 

                        Mr.  Grennberg

 

                        Government

 

                        Mr.  Corell

                        Mrs.  Moore

                        Mr.  Julius

 

Examination on the merits

 

1 October 1986         Submission of Government's additional

                        observations on the merits

 

10 October 1986         Submission of applicant's additional

                        observations on the merits

 

 

Date                    Item

 

 

 

10 December 1986        Consideration of the state of proceedings

 

9 May 1987             Consideration of the state of proceedings

 

8 October 1987         Commission's deliberations on the merits,

                        final votes and adoption of the Report

 

                                                  Translation

                                                  Or.  French

 

 

Full & Egal Universal Law Academy