AS TO THE ADMISSIBILITY OF
Application No. 30323/96
by Bent Scheving THORSTEINSSON
and Emanuel MORTHENS
against Iceland
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 November 1995
by Bent Scheving THORSTEINSSON and Emanuel MORTHENS against Iceland and
registered on 28 February 1996 under file No. 30323/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are citizens of Iceland, born in 1922 and 1921
respectively. They are resident in Reykjavik. The second applicant is
represented by the first applicant before the Commission.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are inhabitants and owners of flats in a block of
flats in Reykjavik. The building consisted of 34 flats of equal size
plus undivided joint property (a janitor's flat). The flat considered
to be for a janitor was subsequently divided into two flats
constituting joint property. One was taken into use as a janitor's flat
and the other one was intended for a nurse.
After the construction of a new janitor's flat a new agreement
was reached respecting the division of the joint property. It was
stated in the agreement that each separate flat represented 1/35th of
the joint property.
On 22 September 1993 the owners, at a house-meeting, decided to
sell the original janitor's flat. 29 of the owners voted for the sale,
but three of the owners (including the applicants) voted against.
On 27 October 1993 the applicants, together with a third person,
lodged civil proceedings against the housing association before the
Reykjavik District Court (Héradsdòmur Reykjavikur). The applicants
requested that the decision to sell the flat be annulled. They
submitted that since the flat was joint property of all flat owners it
should not to be sold without the approval of all of them. They
referred to their right of ownership, stating that they were not to be
obliged against their will to hand over their property.
The housing association submitted that the decision concerning
the sale had been made at a lawfully called house-meeting and in the
manner stipulated in the legislation regarding apartment houses.
It appears that according to section 19 of Act No. 26/1994 a
housing association is not authorised to decide upon a sale of a
considerable part of a joint property unless all the owners agree to
it. A qualified majority of two thirds is required if the sale concerns
an insignificant part of the property.
In its judgment of 28 March 1994 the Reykjavik District Court
found the decision of the house-meeting to be invalid as not all the
owners had agreed to sell.
The housing association appealed to the Supreme Court
(Hæstirèttur Islands). On 1 June 1995 the Supreme Court annulled the
District Court's judgment and rejected the applicants' claims,
approving the housing association's decision to sell the flat as the
sale had been approved by more than two thirds of the flat owners. The
Supreme Court found that the alterations to the proportions of
ownership in the building applied equally to all the flat owners and
were insignificant. The Supreme Court invoked section 19 of Act
No. 26/1994. It also stated that the decision had been taken by a
lawfully called meeting and according to the law. One out of three
Supreme Court judges dissented.
COMPLAINT
The applicants complain that, due to the Supreme Court's judgment
approving the sale of the two flats, they were not entitled to the
peaceful enjoyment of their possessions as they had not approved the
sale. They were allegedly subjected to a deprivation of their
possessions, as their ownership of the block of flats was reduced. They
invoke Article 1 of Protocol No. 1 to the Convention.
THE LAW
The applicants complain that they were not entitled to the
peaceful enjoyment of their possessions as they had not all approved
the sale. They were allegedly subjected to a deprivation of their
possessions, as their ownership of the block of flats was reduced. They
invoke Article 1 of Protocol No. 1 (P1-1) to the Convention which reads
as follows:
"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 provision 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."
Article 1 of Protocol No. 1 (P1-1) comprises three different
rules. The first rule, set out in the first sentence of the first
paragraph, is of a general nature and enunciates the principle of
peaceful enjoyment of property. The second rule, contained in the
second sentence of the same paragraph, covers deprivation of
possessions and makes it subject to certain conditions. The third rule,
stated in the second paragraph, recognises that Contracting States are
entitled, amongst other things, to control the use of the property in
accordance with the general interest. The three rules are not
"distinct" in the sense of being unconnected: the second and third
rules are concerned with particular instances of interference with the
right to peaceful enjoyment of property and should therefore be
construed in the light of the general principle enunciated in the first
rule (see Eur. Court HR, James and others v. the United Kingdom
judgment of 21 February 1986, Series A no. 98, p. 29, para. 37).
Moreover, although Article 1 (Art. 1) contains no explicit
procedural requirements, the proceedings at issue must afford the
individual a reasonable opportunity of putting his or her case to the
responsible authorities for the purpose of effectively challenging the
measures interfering with his or her rights under Article 1 of Protocol
No. 1 (P1-1) to the Convention. In ascertaining whether this condition
has been satisfied a comprehensive view must be taken of the applicable
procedures (see, e.g., Eur. Court HR, Agosi v. the United Kingdom
judgment of 24 October 1986, Series A no. 108, p. 19. para. 55). The
Commission considers that the Supreme Court's judgment approving the
sale of part of the joint property without the approval of all the
joint owners might have constituted an interference with the
applicants' right to the peaceful enjoyment of their possessions and
is to be considered under the second paragraph of Article 1 of
Protocol No. 1 (P1-1) to the Convention as to its lawfulness, purpose
and proportionality.
As regards the lawfulness of the assumed interference, the
Commission notes that Act No. 26/1994 regarding blocks of flats
requires that a sale of joint property be approved by all the owners
of a multi-ownership building. However, if the sold property is an
insignificant part of the joint property, the approval by a qualified
majority of two thirds of the ownership is sufficient. In the present
case, the relevant part of the joint property in question was only
1/34th (at the most) which in the Supreme Court's view could not be
considered a significant part of the joint property. In approving the
decision of the house-meeting, the Supreme Court explicitly invoked
section 19 of Act No. 26/1994.
It has to be noted that the Contracting States enjoy a wide
margin of appreciation in enforcing such laws as they deem necessary
to control the use of property in accordance with general interests
(see the above-mentioned James and others v. the United Kingdom
judgment, p. 32, para. 46). The aim of the interference in this case
was to secure the decision-making concerning joint property. The
interests of the other co-owners of the joint property, willing to
sell, have to be taken into account as well as the interests of those
objecting to the sale. In particular, the fairness of a system of law
governing the contractual or property rights of private parties is a
matter of public concern and therefore legislative measures intended
to bring about such fairness are capable of being "in the public
interest", even if they involve the compulsory transfer of property
from one individual to another (see the above-mentioned James and
others v. the United Kingdom, p. 31, para. 41). The interference in
question therefore served a legitimate purpose as being in the general
interest.
The change of the proportions of the ownership in this case was
minimal and, as the applicants obviously will benefit from the sales
price in the same proportion as other owners, the Commission is of the
opinion that the sale of part of the joint property can, having regard
to the State's margin of appreciation, be considered proportionate to
the aim pursued.
Finally, the Commission notes that the applicants had at their
disposal sufficient procedural safeguards for the purposes of
challenging the house-meeting's decision.
Summing up, the Commission finds that the applicants have not
been made to carry an individual and excessive burden and that a fair
balance has been struck between the conflicting interests at stake,
regard also being had to the procedural safeguards afforded to them.
Accordingly, there is no violation of Article 1 of Protocol No. 1
(P1-1) to the Convention. It follows that the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy