AS TO THE ADMISSIBILITY OF
Application No. 12836/87
by Åke LINDEN and
Konsumentfinans Karlsson & Lindén AB
against Sweden
The European Commission of Human Rights sitting in private on
1 October 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 August 1986
by Åke LINDEN and Konsumentfinans Karlsson & Lindén AB against Sweden
and registered on 3 April 1987 under file No. 12836/87;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the Government's written observations dated
13 June and 8 November 1989 and the applicants' observations dated
30 August 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows:
The first applicant, Mr. Åke Lindén, is a Swedish citizen,
born in 1945 and resident in Södertälje. He is the joint owner and
director of the second applicant, Konsumentfinans Karlsson & Lindén AB,
a limited liability company incorporated in Sweden.
Before the Commission the applicants are represented by Mr.
Jan Axelsson, a lawyer practising in Stockholm.
The applicants are owners of residential property in
Södertälje.
On 21 September 1981, the Municipal Council (kommunfullmäktige)
of Södertälje decided as a preliminary measure, pursuant to the
provisions of the Tenement Assignment Act (bostadsanvisningslagen),
to declare the whole of central and urban Södertälje a tenement
assignment area within the meaning of that Act. For the further
implementation of this decision the Tenement Allocation Board
(bostadsförmedlingsnämnden) was called upon to make specific
recommendations to the Municipal Executive Board (kommunstyrelsen).
Under the provisions of the Act, a Municipal Executive Board
is empowered to declare one or several of its residential areas to be
tenement assignment areas and to order that the provisions of the Act
should apply to all or certain tenement rentals in those areas.
Landlords who wish to make vacant flats available for rent are thereby
required to report all vacancies to the municipality which may then
assign the tenement to a new tenant. A landlord may refuse to accept
the tenant assigned to him, but he is obliged to let the tenement to
the municipality if it so requests. The municipality may in turn
sub-let to any person irrespective of any objection on the part of the
landlord. Furthermore, the law on tenancy enables the municipality,
with permission from the Rent Board (hyresnämnden), to transfer the
tenement to the sub-tenant.
On 2 April 1984 the Municipal Executive Board decided,
pursuant to Sections 1 and 2 of the Tenement Assignment Act and upon
recommendation of the Tenement Allocation Board, to declare those
residential areas which corresponded to four parishes in Södertälje,
with the exception of two districts, to be a tenement assignment area.
All the tenements in the two exempted districts were owned by a
foundation controlled by the municipality.
Section 1 of the Tenement Assignment Act provides:
(translation)
"One or more residential areas of a municipality may be
declared a tenement assignment area if it is required for
the supply of dwellings within the municipality or within an
area of which the municipality forms part, and which can be
considered as a unit for the purpose of the supply of
dwellings.
Within a tenement assignment area this Act applies to all
flats, unless it is a flat which constitutes part of the
house owner's own dwelling, or a flat in a one-family
house, which is not supposed to be rented permanently, or
in a two-family house or it has otherwise been decided
that only certain flats in the area should be covered
by the Act."
Swedish
"Om det behövs för bostadsförsörjningen inom en kommun eller
inom ett område i vilket kommunen ingår och som kan anses
utgöra en enhet i bostadsförsörjningshänseende, får ett
eller flera bostadsområden i kommunen förklaras vara
bostadsanvisningsområde.
Inom bostadsanvisningsområde är denna lag tillämplig på
samtliga bostadslägenheter, såvida ej fråga är om lägenhet,
som utgör en del av husägarens egen bostad, eller lägenhet
i ett enfamiljshus, som inte är avsett att upplåtas varaktigt,
eller i ett tvåfamiljshus eller beslutats att i övrigt endast
lägenheter av visst slag inom området skall omfattas av lagen."
The second applicant, together with several other property
owners, appealed to the County Administrative Board (länsstyrelsen)
of the Stockholm County on the grounds, inter alia, that there was
already an excess of vacant tenements at the disposal of the
municipality and that the decision to create a tenement assignment
area had consequently been taken in disregard of the legal conditions
contained in the Act. The first applicant was not a party to this
appeal since he did not, at that time, own any property affected by
the decision.
In its decision of 27 March 1985 the County Administrative
Board stated, inter alia, that the aim of the Act was to enable local
authorities to work more actively to achieve a mixed composition of
the population in its residential areas and that in this respect they
enjoyed a wide margin of discretion in the implementation of local
policy. In particular, it was clear from the travaux préparatoires
that it would be an unacceptable restriction on such policy to require
as a prerequisite for declaring a tenement assignment area that there
exist a general housing shortage or a particular housing problem in
respect of certain groups of the population. Having regard to the
situation obtaining in Södertälje, and in particular to the relatively
high concentration of immigrants, the Board upheld the decision of the
Municipal Executive Board. It stated inter alia as follows:
"Since several years the municipality of Södertälje has
tried through different measures - the municipality has
inter alia made use of the assignment right pursuant to the
Housing Supply Act (bostadsförsörjningslagen) and the
Tenement Finance Ordinance (bostadsfinansieringsförordningen)
- to prevent segregation within the housing areas of the
municipality. From the case-file it appears inter alia that
within certain areas of the municipality of Södertälje there
is a very high concentration of immigrants and that these
areas cannot be considered to have a mixed composition of
different households. There exists no agreement between the
municipality and the landlords regarding housing assignment
that satisfies the needs of the municipality.
In these circumstances the conditions for making a decision of a
tenement assignment area under the Tenement Assignment Act must be
considered to be fulfilled. The facts of the case do not disclose
sufficient reasons for rejecting the way the assignment area has
been delimited."
The Board further decided that houses with less than six flats
should be exempted from the decision. In its final assessment, the
Board stated that:
"(The Board) finds that a balance struck between the
municipality's and the affected landlords' interests does
not disclose that the landlords' interests have been
neglected in such a manner that the decision of the Municipal
Executive Board should otherwise be quashed or amended."
On 25 February 1986, the first applicant bought a number of
residential properties which, as a result of the above decisions, were
subject to the provisions of the Tenement Assignment Act.
On 13 March 1986 the Government rejected an appeal against the
decision of the County Administrative Board which had been brought,
inter alia, by the second applicant.
The Tenement Assignment Act was replaced by the Act on
Municipal Tenement Assignment Rights (lagen om kommunal
bostadsanvisningsrätt) on 1 January 1988.
COMPLAINTS
1. The applicants complain under Article 1 of Protocol No. 1 to
the Convention that the powers conferred on the municipality by the
Tenement Assignment Act, as interpreted by the County Administrative
Board, do not satisfy the requirements of accessibility and clarity
required by the Convention, and further that the decision to declare a
tenement assignment area constitutes an unjustified, arbitrary and
disproportionate measure for the control of the use of their property.
2. The applicants complain further that the decision to exempt
only those districts where the municipality was itself the sole
landlord of affected tenements constitutes an unjustified and
arbitrary discrimination against them as private landlords, contrary
to Article 14 of the Convention taken together with Article 1 of
Protocol No. 1. The applicants also complain that the decision
discriminates against them as compared with property owners in areas
of Sweden where no compulsory allocation of tenements has been
introduced.
3. The applicants further complain that they cannot have the
decision, which implied that their properties were made part of a
tenement assignment area, examined by a court, contrary to Article 6
para. 1 of the Convention.
4. The applicants finally complain that the purpose pursued by
the Tenement Assignment Act of attaining a well-mixed composition of
residents is contrary to Articles 17 and 18 of the Convention, taken
together with Article 1 of Protocol No. 1.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 August 1986 and
registered on 3 April 1987.
On 13 March 1989 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application.
The Government's observations were received, after an extension
of the time limit, by letter dated 13 June 1989 and the applicants'
observations were dated 30 August 1989. A letter from the Government
with further observations was dated 8 November 1989.
THE LAW
1. The applicants allege a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that they could not have
examined by a court the dispute over the decision to declare the area
in which their houses are situated a tenement assignment area.
Article 6 para. 1, (Art. 6-1) first sentence 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."
The Commission considers that the issues to be decided are
whether the decision to declare the area in question a tenement
assignment area was decisive for the applicants' "civil rights and
obligations" and, if so, whether a genuine dispute of a serious nature
arose between the applicants and the authorities in relation to that
decision. In the affirmative, it would have to be determined whether
the applicants had at their disposal a procedure satisfying the
conditions of Article 6 para. 1 (Art. 6-1) in regard to that dispute.
The Government do not object to this complaint being declared
admissible and admit that there has been a violation of Article 6
para. 1 (Art. 6-1).
The Commission finds that this complaint cannot be regarded as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. As no other ground for declaring it
inadmissible has been established, this complaint is admissible.
2. The applicants complain that the decision to declare the area
in which their properties are situated a tenemant assignment area is a
violation of their right to property. They invoke Article 1 of
Protocol No. 1 (P1-1) to the Convention which provides:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties."
The Commission finds, and this is not in dispute between the
parties, that there has been an interference with the applicants'
right to the peaceful enjoyment of their possessions as a result of
the contested decision. It is common ground that the interference
constituted a measure "to control the use of property" and that
consequently the interference is to be examined under the second
paragraph of Article 1 (Art. 1-2).
The applicants submit that the interference was not lawful,
that it did not serve the general interest and that it was not
proportionate to its aim. The Government, on the other hand, submit
that the interference had a legitimate aim, that the decision was
taken in accordance with Swedish law and that the effects for the
applicants were proportionate to the aim sought.
Under the second paragraph of Article 1 of Protocol No. 1
(P1-1) the Commission must examine the lawfulness, purpose and
proportionality of the interference (cf. Eur. Court H.R., Tre
Traktörer AB judgment of 7 July 1989, Series A no. 159, pp. 22-24,
paras. 55-62).
The Convention organs' power to review compliance with
domestic law is limited. It is in the first place for the national
authorities to interpret and apply that law. The requirement of
lawfulness includes that the impugned measure should have some basis in
domestic law. Furthermore, the law must have a certain quality, i.e.
it must be accessible, foreseeable and compatible with the rule of
law. A law which confers a discretion on the authorities must
indicate the scope of that discretion. The degree of precision
required will depend on the particular subject-matter (cf. Eur. Court
H.R., Huvig judgment of 24 April 1990, Series A no. 176, paras. 26,
28-29).
In the present case, the Commission observes that the decision
to declare the area in question a tenement assignment area was made
pursuant to Sections 1 and 2 of the Tenement Assignment Act. It thus
has a basis in Swedish law. The Commission further observes that the
decision was reviewed and essentially upheld by the County
Administrative Board and the Government.
The applicants contend that the law gives such a wide
discretion to the local authority that it does not have the quality of
a law.
The Commission notes that the Tenement Assignment Act confers
a wide discretion on the competent authority. However, Article 1 of
Protocol No. 1 (P1-1) does not require a law which provides a solution
to every specific problem in the area concerned. In interpreting and
applying the law the relevant preparatory work provides guidance as to
the exercise of the discretion. Moreover, a decision to declare an
area a tenement assignment area is subject to appeal to the County
Administrative Board and the Government. This right of appeal
provides a safeguard for those affected by the decision. In the
circumstances, and having regard in particular to the contents of the
County Administrative Board's decision, the Commission is satisfied
that the interference was lawful.
The Commission further considers that the aim of the Tenement
Assignment Act, to supply housing and to counteract segregation, are
legitimate aims in the "general interest". Having regard to the
reasons given by the County Administrative Board, the Commision finds
no evidence to suggest that the decision in the present case was made
for any other purpose. Consequently, the Commission is satisfied that
the decision was taken in accordance with "the general interest".
As to the proportionality of the interference, the Commission
observes that the Act is not applicable to a flat which constitutes
part of the house owner's own dwelling and, in the present case, the
authorities have restricted the application of the Act to houses
which have six flats or more. Moreover, the decision to apply the
Tenement Assignment Act aimed at counteracting segregation in
Södertälje which has a high number of immigrants. The Commission
further observes that the decision to declare the area a tenement
assignment area obliged the applicants to inform the local authority
of any vacant flat they wished to lease and the conditions of the
lease, and that they could not lease the flat to anyone else than a
person assigned by the local authority or to the local authority
itself. The landlord may, under the Act, refuse the tenant proposed
by the local authority but he cannot refuse to let it to the local
authority. If the local authority rents the flat, it can sub-let it
to anybody. However, the Tenement Assignment Act does not involve a
compulsion for the landlord to make a vacant flat available for rent.
The Commission considers that although the interference at
issue involves a substantial hindrance in the applicants' freedom to
choose their tenants it is nevertheless not an interference which can
be regarded as affecting the very essence of the applicants' property
right.
It further notes that the first applicant acquired his
properties only after the County Administrative Board had decided on
the first appeal but before the Government had made the final
decision. The Commission considers that this applicant must have been
aware of the situation when he bought the properties and cannot have
had any reasonable expectation that the properties he had acquired
would eventually be free from the interference resulting in the
decision declaring the area a tenement assignment area.
The Commission also notes that the different interests
involved have been assessed and weighed by the competent authorities.
It considers in view of the margin of appreciation afforded to the
domestic legislator and authorities, and the general interest at
issue, that the interference was not disproportionate to the aim
pursued.
Consequently, the interference was justified under the terms
of the second paragraph of Article 1 of Protocol No. 1 (P1-1).
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants also allege a violation of Article 14 (Art. 14)
of the Convention, which reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth
or other status."
According to the case-law of the Convention organs, Article 14
(Art. 14) of the Convention has no independent existence, but plays an
important role by supplementing the other provisions of the Convention
and the Protocols. Article 14 (Art. 14) safeguards individuals,
placed in similar situations, from discrimination in the enjoyment of
the rights set forth in those other provisions. A measure which as
such could be in conformity with the normative provision may therefore
nevertheless violate that provision taken in conjunction with Article
14 (Art. 14), if it is applied in a discriminatory manner. It is as
if Article 14 (Art. 14) formed an integral part of each of the
provisions laying down the specific rights and freedoms. The
Convention organs have furthermore constantly held that a distinction
is discriminatory if it "has no objective and reasonable
justification", that is, if it does not pursue a "legitimate aim" or
if there is not a "reasonable relationship of proportionality between
the means employed and the aim sought to be realised" (Eur. Court
H.R., Inze judgment of 28 October 1987, Series A no. 126, p. 17, para.
36 and p. 18, para. 41).
The discriminatory treatment alleged by the applicant is the
difference between them and other property owners in the Södertälje
area, or in other areas in Sweden where the Tenement Assignment Act is
not applied.
The Government submit that there is no violation of Article 14
(Art. 14) of the Convention.
The Commission has examined whether there has been
discrimination contrary to Article 14 (Art. 14) of the Convention in the
applicants' enjoyment of their right under Article 1 of Protocol No. 1
(P1-1) to the Convention.
It assumes for the purpose of Article 14 (Art. 14) that the
applicants can be said to be in a similar situation as compared to the
other property owners referred to. As to the justification for the
distinction made, the Commission accepts that there were objective
reasons for excluding those areas in which the municipality already
had a direct or indirect control over the use of flats. The
Commission further finds that the difference in practice between
Södertälje and other areas in Sweden was a result of the different
situation obtaining in Södertälje, notably the great number of
immigrants and the impossibility to find other solutions to combat
segregation. Having regard to the margin of appreciation enjoyed by
the domestic authorities and to the subject-matter, the Commission
finds no appearance of discrimination contrary to Article 14 of the
Convention in conjunction with Article 1 of Protocol No. 1
(Art. 14+P1-1) to the Convention.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. Finally, the Commission finds no appearance of a violation of
Articles 17 and 18 (Art. 17, 18) of the Convention which have also
been invoked by the applicants.
It follows that in this respect the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission,
unanimously,
DECLARES ADMISSIBLE, without prejudging the
merits of the case, the complaint of absence of a court
determination (Article 6 para. 1 (Art. 6-1) of the Convention) ;
by a majority,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy