AS TO THE ADMISSIBILITY OF
Application No. 13347/87
by J. and E.H.
against Sweden
The European Commission of Human Rights sitting in private
on 7 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 October 1987
by J. and E.H. against Sweden and registered on 26 October 1987 under
file No. 13347/87;
Having regard to the reports provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the Government's written observations of
28 November 1989 and the applicants' written observations of
2 January 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the parties'
submissions, may be summarised as follows.
The applicants are J. and E.H., born in 1945 and 1948
respectively and resident in Stockholm. Mr. H. is a practising lawyer
and Mrs. H. is a secretary.
The applicants have rented a four-roomed flat at Spånga since
1979. The landlord is Aktiebolaget Svenska Bostäder, a limited
liability company, which is a public utility housing company, i.e. a
company which is at least partly publicly owned and the aim of which is
to provide housing without giving profit to its owners. Aktiebolaget
Svenska Bostäder is connected to the Federation of Public Utility
Housing Companies (Sveriges allmännyttiga bostadsföretag, SABO). The
tenancy agreement contains a negotiation clause (förhandlingsklausul)
to the effect that the tenant undertakes, without prior termination of
the agreement, to accept what has been agreed upon or will be agreed
upon between the company (the landlord) and the Tenants' Union under
the applicable negotiation agreement, notably the level of the rent and
other rent conditions. In accordance with this agreement, the landlord
and the Tenants' Union regularly review the rent for the flats in the
house in which the applicants live. As compensation for its work in
conducting the negotiations, the Tenants' Union receives 0,3% of the
rent from the landlord.
In 1979 the landlord and the Tenants' Union of the area of
Metropolitan Stockholm (hyresgästföreningen i Stor-Stockholm) made an
agreement concerning leisure facilities and one concerning consultation
with tenants (boendeinflytande). These agreements have been replaced
by new agreements applicable as from 1 July 1986. According to the
agreements, the Tenants' Union receives from the company for its
activities an amount corresponding to altogether O.9% of the rent paid
during the year for flats covered by the agreements.
The applicants gave notice to terminate the tenancy agreement
for the purpose of changing the conditions of the agreement in accordance
with Chapter 12 Section 54 of the Land Act (jordabalken) as from
1 October 1983. The dispute was subsequently referred to the Rent Board
(hyresnämnden) of the Stockholm County. The applicants claimed that the
negotiation clause should be removed from the contract and that the rent
should be reduced as from 1 October 1983 by altogether 1.05%. The
applicants challenged the lay assessors of the Rent Board. The challenge
was rejected by the Board on 15 November 1983. On 19 March 1984 the
Rent Board delivered its decision rejecting the applicants' claims.
The applicants appealed to the House and Tenancy Court
(bostadsdomstolen). The applicants challenged the lay assessors of the
Court, a challenge which was rejected by the Court on 16 February 1987.
By judgment of 30 April 1987 the House and Tenancy Court
rejected the applicants' claims. The Court was composed of seven judges,
of whom three were professional judges and four were lay assessors. One
of the professional judges dissented. The four lay assessors were
Mr. B. Claesson, who was Managing Director of Aktiebolaget Stockholmshem,
a public utility housing company affiliated to SABO, Mrs. M. Andréasson
Frohnert, who was Head of Division at SABO, Mrs. S. Johansson, who was
employed by the National Tenants' Union, and Mrs. E. Kaplan, who was
employed by the Tenants' Union of Metropolitan Stockholm.
COMPLAINTS
The applicants originally alleged violations of Article 6
para. 1, Articles 8, 11 and 14 of the Convention, as well as Article 1
of Protocol No. 1 to the Convention. They subsequently withdrew their
complaints under Articles 8 and 11 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 October 1987 and registered
on 26 October 1987.
On 4 September 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
limited to the issue under Article 6 para. 1 of the Convention.
The Government's observations were received by letter dated
28 November 1989 and the applicants' observations were dated 2 January 1990.
THE LAW
1. The applicants allege a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that the Rent Board and the
House and Tenancy Court cannot be regarded as independent and
impartial tribunals. Article 6 para. 1 (Art. 6-1) first sentence
reads as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
The issue which arises is whether, in the circumstances of the
case, the House and Tenancy Court satisfied the conditions of being an
"independent and impartial tribunal" within the meaning of Article 6
para. 1 (Art. 6-1).
The Government waive objections against the admissibility of
this complaint and admit that there has been a violation of Article 6
para. 1 (Art. 6-1) in this respect.
The Commission finds that this complaint cannot be regarded as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. As no other ground for declaring it
inadmissible has been established, this complaint is admissible.
2. The applicants originally complained of violations of Articles 8
and 11 (Art. 8, 11) of the Convention. However, in the light of the
judgment in the Langborger case (Eur. Court H.R., Langborger judgment
of 22 June 1989, Series A no. 155), they have withdrawn these
complaints. The Commission finds no reason to examine these
complaints.
3. The applicants also complain that there has been a violation of
Article 1 of Protocol No. 1 (P1-1) to the Convention on the ground
that they have to make financial contributions to the Tenants' Union.
Unable to establish the exact amount, the applicants estimate that
they have paid 10,000 SEK to the Union during the period 1979 to 1988.
Article 1 of Protocol No. 1 (P1-1) reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles
of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
The Commission recalls that a similar complaint was made in the
Langborger case. In that case the Commission observed (Langborger v.
Sweden, Comm. Rep., 8.10.87, paras. 158-159, Eur. Court H.R., Series A
no. 155, p. 36) that the applicant had freely entered into the tenancy
agreement according to which the future rent was fixed after negotiations
between the Tenants' Union and the landlords' union. The Commission
considered that in view of the low percentage and amount concerned - 0.3%
of the rent in that case - the applicant had failed to substantiate an
interference with his right under Article 1 of Protocol No. 1 (P1-1). This
view was confirmed by the Court (see above-mentioned Langborger judgment,
p. 17, para. 41).
The Commission considers that similar considerations apply in
the present case. Although the amount involved is higher in this case,
the Commission finds no indication of a violation of Article 1 of
Protocol No. 1 (P1-1).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
4. Finally, the applicants allege a violation of Article 14
(Art. 14) of the Convention which prohibits discrimination in the
enjoyment of the rights and freedoms set forth in the Convention.
However, the Commission finds no indication of a violation of Article
14 (Art. 14) of the Convention. It follows that this aspect of the
application is also manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES ADMISSIBLE, without prejudging the merits, the
complaint that the applicants' case was not determined by an
"independent and impartial tribunal" (Article 6 para. 1 (Art. 6-1)
of the Convention);
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy