AS TO THE ADMISSIBILITY OF
Application No. 11661/85
by Stiftelsen Akademiska föreningens bostäder i Lund
against Sweden
The European Commission of Human Rights sitting in private
on 6 July 1987 the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
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 2 January 1985
by Stiftelsen Akademiska föreningens bostäder i Lund against Sweden
and registered on 29 July 1985 under file N° 11661/85;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the applicant's
submissions, may be summarised as follows.
The applicant is a foundation, Stiftelsen Akademiska
föreningens bostäder i Lund (the Foundation Academic Association's
Dwellings at Lund). The foundation is represented before the
Commission by Mr. Göran Ravnsborg, a university lecturer at the
University of Lund.
The foundation has been created by the Academic Association
at Lund in order to accommodate students with cheap high-standard
dwellings. It owns and administers around 6.000 dwellings.
Since 1 January 1984, Mr. M. L. rented a room from the
applicant foundation. On 30 May 1984 he was given notice that his
contract would terminate at the latest on 30 June 1984. Mr. M.L.
was informed at the same time that he could appeal to the Rent Board
(hyresnämnden) within three weeks if he objected to the notice.
Mr. M.L. did not appeal within the prescribed time-limit. However, he
did not move from the room he rented.
Subsequently, however, Mr. M.L. applied to the Rent Board for
a prolongation of his contract. On 1 August 1984 the Rent Board of
Malmö rejected Mr. M.L.'s application since he had applied to the
Board out of time. Mr. M.L. appealed against this decision to the
House and Tenancy Court (bostadsdomstolen), which on 17 October 1984
rejected the appeal.
The applicant foundation applied to the District Court
(tingsrätten) for assistance (handräckning) to have Mr. M.L. removed.
On 17 August 1984 the District Court of Lund ordered that the
applicant should move at once and, if he did not do so, that he could
be evicted at his own expense.
On the basis of the decision of 17 August 1984 of the District
Court of Lund, the applicant foundation applied for the eviction of
Mr. M.L.. The eviction was scheduled to take place on 31 August 1984.
However, on 30 August 1984, the applicant foundation was informed by
telephone that the Real Estate Court (fastighetsdomstolen) of Malmö,
on 30 August 1984, had ordered that the eviction be stayed, the reason
being that since Mr. M.L.'s appeal was still pending before the House
and Tenancy Court, the question of his right to a prolongation of the
contract had not yet been settled. No appeal lay against this
decision.
COMPLAINTS
1. The applicant foundation complains that the decision of the
Real Estate Court of Malmö was based on irrelevant reasons. It caused
serious trouble for the foundation. The whole corridor in which Mr.
M.L. lived had to be emptied of all other tenants just before the
opening of the autumn term. Mr. M.L. moved out some days before
31 October 1984.
Thus between 31 August and 31 October 1984 the foundation was unable
to exercise its legal rights as real estate owner and landlord. The
applicant foundation alleges that there has been a violation of
Article 1 of Protocol No. 1 to the Convention.
2. The applicant foundation further submits that there has been a
violation of Article 6 of the Convention since the decision of the
Real Estate Court was taken in camera and without any party being
present.
3. Finally, the applicant foundation alleges that there has been
a breach of Article 13 of the Convention since no appeal lay against
the decision of the Real Estate Court and the implications of that
decision.
THE LAW
1. The applicant foundation has complained that the decision of
the Real Estate Court ordering a stay of the eviction of Mr. M.L.
pending the appeal proceedings constitutes a breach of Article 1 of
Protocol No. 1 (P1-1) to the Convention.
Article 1 of Protocol No. 1 reads (P1-1):
"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 with the applicant foundation that the
decision to stay the eviction interfered with the foundation's right
to peaceful enjoyment of its possessions. The nature and purpose of
the interference was to control the use of property and the question
whether or not the interference was justified accordingly falls to
be considered under the terms of the second paragraph of Article 1 of
Protocol No. 1 (P1-1).
The Commission recalls that the decision to stay the eviction
was made since the question whether Mr. M.L. had a right to prolong
his contract was still pending before the House and Tenancy Court.
The Commission considers that it was in "the general interest" within
the meaning of Article 1 of Protocol No. 1 (P1-1) to suspend the eviction of
Mr. M.L. as long as the question of the prolongation of his rent
contract had not been finally determined. Moreover, there is no
indication that the decision of the Real Estate Court was unlawful
under Swedish law.
Accordingly, the Commission finds no appearance of a violation
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.
2. The applicant foundation has also alleged a violation of
Article 6 (Art. 6) of the Convention in that the decision of the Real Estate
Court was taken in camera and without the parties being present.
Article 6 (Art. 6) of the Convention is only applicable "in the
determination of (an individual's) civil rights and obligations or of
any criminal charge against him ...".
Since there is no question of a "criminal charge" in this case
it must be examined whether the decision of the Real Estate Court
was a "determination" of the applicant foundation's "civil rights".
As a rule, enforcement proceedings following a court judgment
do not come within the scope of Article 6 (Art. 6) of the Convention.
Enforcement proceedings presuppose that the dispute relating to civil
rights has previously been determined by the competent court or other
organ.
The issue whether Mr. M.L.'s rent contract should be prolonged
or not could have been determined in proceedings before the Rent
Board and the House and Tenancy Court. The proceedings before the Real
Estate Court related to the enforcement of a decision, i.e. eviction,
of Mr. M.L. but did not themselves determine any civil rights.
It follows that Article 6 (Art. 6) of the Convention was not
applicable to those enforcement proceedings and this complaint must
therefore be rejected under Article 27, para. 2 (Art. 27-2) of the
Convention for being incompatible ratione materiae with the provisions
of the Convention.
3. The applicant foundation has also complained that Article 13
(Art. 13) of the Convention has been violated since there was no
appeal against the decision of the Real Estate Court.
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."
The applicant foundation's claim of a violation of Article 1
of Protocol No. 1 (P1-1) relates to the Real Estate Court's decision ordering
a stay of the eviction. A remedy against such an alleged violation by
a court would require the possibility to appeal against the court's
decision since only a superior court could overrule such a decision.
However, the right to appeal is not as such guaranteed by the
Convention (e.g. Eur. Court H.R., Delcourt judgment of 17 January 1970,
Series A no. 11, p. 14, para. 25) and it follows from this that
Article 13 (Art. 13) cannot be relied upon where the alleged violation lies in
the decision of a court (see No. 11508/85, Dec. 17.7.1986, to be
published in D.R.).
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27, para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)