AS TO THE ADMISSIBILITY OF
Application No. 16056/90
by Harry WAHLBERG, Bernt ENGMAN and
Thomas ENGDAHL
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 December 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 8 November 1989
by Harry WAHLBERG, Bernt ENGMAN, and Thomas ENGDAHL against Sweden and
registered on 25 January 1990 under file No. 16056/90;
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 facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are Swedish citizens, residing at Johanneshov, a
suburb of Stockholm. Before the Commission they are represented by
Mr. Henrik Hoffman, a lawyer practising in Stockholm.
The first applicant, Mr. H.W., is a member of the Tenants Union
of the Stockholm area (hyresgästföreningen i Stor-Stockholm). The
second and the third applicants, Mr. B.E. and Mr. T.E., are not members
of the Tenants Union.
On 1 October 1959 H.W. rented a flat at Per Lindeströms väg 111
in a residence called Sjöfararen which was part of a residential
complex comprising a number of large apartment buildings. He has
subsequently, on 15 August 1989, moved to another apartment building
in the same street, no. 93 - A.
The second applicant, B.E., lives at Per Lindeströms väg 119, in
another apartment building belonging to the same residential complex.
The third applicant, T.E., also lived at Per Lindeströms väg 119, but
in June 1989 he moved to another address which does not appear to
belong to the above complex.
The lease contracts signed by the applicants for their apartments
at Per Lindeströms väg contained inter alia the following passages:
(translation)
"The tenant will not receive a reduction in the rent
for inconveniences in respect of the right to use the
apartment due to work for normal upkeeping of the apartment
or the building as such, carried out by the landlord when
appropriate, or if such other works are carried out which
are specifically mentioned in the lease.
The landlord has the right, in accordance with
Chapter 3, Section 26, of the Act on the Right of Use of
Immovable Property (lagen om nyttjanderätt till fast
ejendom), to install such pipes for heating, water, sewers,
gas or electricity as are common to two or more apartments,
so-called main pipes."
It appears that in 1988 the landlord - a company, J M Byggnads
och Fastighets AB (hereinafter called JM) - intended to repair and
renovate the buildings in which the applicants lived. JM therefore
contacted the Tenants Union and certain negotiations took place. The
proposed repairs and renovations were discussed due to the fact that
JM could not, according to Swedish law, proceed if the Tenants Union
was opposed to the project. JM therefore needed the Tenants Union's
approval in a so-called tenant certificate (hyresgästintyg).
The Tenants Union arranged meetings with the tenants including
the applicants and eventually JM's renovation and repair proposals were
accepted by the tenants. As regards the first applicant's apartment
building the tenants accepted the proposals by a vote of seven to none
with one abstention (apparently the first applicant's). As regards the
second and third applicants' apartment buildings the vote was nine
votes in favour and two against (the second and third applicants').
Accordingly, an agreement was reached on 14 October 1988 between JM and
the Tenants Union concerning the proposed repairs and renovations. This
agreement foresaw inter alia that JM should bear all costs in
connection with the inconveniences caused by moving the tenants
concerned to other apartments while the works were being carried out.
On this basis the Union issued the necessary tenant certificate in
respect of the apartment buildings in which the applicants resided.
On 18 November 1988 the first applicant lodged an appeal against
the Tenants Union's issuing of this tenant certificate with the
Stockholm Rent Board (Hyresnämnden i Stockholm). On 25 January 1989 the
second and third applicants also lodged an appeal in so far as their
apartment building was concerned. They did not approve of the repairs
and renovations proposed and accordingly disagreed with the tenant
certificate issued by the Tenants Union in accordance with the Act on
Housing Renovation.
On 7 February 1989 the Rent Board informed the first applicant
that it could only examine disputes between the Tenants' Union and the
landlord (JM) but not those between the Tenants Union and the
individual tenants for which reason he was requested to withdraw his
complaints. On 22 February 1989 the first applicant informed the Rent
Board, however, that he intended to pursue the matter. On
27 February 1989 the second and third applicants informed the Rent
Board that they also intended to pursue their complaints.
On 28 February 1989 the Rent Board dismissed the first
applicant's complaint. In its decision it stated:
(translation)
"(The first applicant) ... has complained to the Rent
Board of the fact that the Tenants Union has issued a
tenant certificate, i.e. accepted that certain improvement
work may be carried out in the apartment building.
According to Section 2 A, subsection 2, of the Act on
Housing Renovation (1973:531) the Rent Board is competent
to examine such issues.
However, this competence is limited to the situation
where the owner of the building complains that the union is
opposed to such improvement works.
This is not so in the present case. It follows that
the Rent Board is not competent to examine the case as
submitted by (the first applicant). The Rent Board
therefore dismisses the application."
The second and third applicants received a similar decision,
dated 20 March 1989.
On 14 March 1989 the first applicant appealed against the
decision to the Housing and Tenancy Court (bostadsdomstolen). His
appeal was directed against the fact that the Tenants Union had issued
a tenant certificate. Furthermore he requested the Court to prevent JM
from carrying out the repairs and renovations in question. The second
and third applicants lodged an appeal on similar grounds with the
Housing and Tenancy Court on 10 April 1989.
In two decisions of 12 May and 2 June 1989 respectively, the
Housing and Tenancy Court dismissed the appeals. In its latter decision
the Court stated:
(translation)
"Neither the Rent Board nor the Housing and Tenancy
Court has competence to examine a decision by a tenants
union not to oppose improvement works being carried out in
the building. As held by the Rent Board the appeal must
accordingly be dismissed."
The first applicant subsequently lodged an appeal with the
Government, which decided, on 14 June 1989, not to deal with the matter
as it had no competence to do so.
In the meantime, it appears, the renovation and repair work
started. The applicants submit that this included the replacement of
the water and sewer pipes and a restructuring of the available
apartment space. All three applicants moved out of their apartments
during these works and in accordance with the agreement reached between
the Tenants Union and JM of 14 October 1988, all costs in connection
with this were borne by JM. The renovation work is now finished and the
applicant T.E. has moved back whereas the applicants H.W. and B.E. have
chosen another residence.
COMPLAINTS
The applicants complain, under Article 6 of the Convention, that
they could not, in their capacity as individual tenants, obtain a
determination of their civil rights by a tribunal in that they could
not institute proceedings in which they could oppose the issuing of the
tenant certificate.
THE LAW
The applicants invoke Article 6 para. 1 (Art. 6-1) of the
Convention and complain that they do not have access to a tribunal
which could determine the dispute concerning the issuing of a tenant
certificate by which the landlord was allowed to renovate and repair
their apartments.
The first sentence of 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."
The Commission recalls the constant jurisprudence of the
Convention organs, according to which Article 6 para. 1 (Art. 6-1)
applies only to the "determination" of "civil rights and obligations"
or any "criminal charge". As the Convention organs have held on
several occasions, there are cases which are not included in either of
these categories and which thus fall outside the scope of Article 6
para. 1 (Art. 6-1) (see e.g. No. 10144/82, Dec. 11.5.83, D.R. 33 p.
276).
Since in the present case there is no question of a "criminal
charge" the issue to be decided is whether there was a "determination"
of a "civil right or obligation" in the proceedings before the Rent
Board and the Housing and Tenancy Court.
The Commission recalls that under Swedish law the landlord of the
apartment buildings in question, JM, could not undertake the renovation
and repair works if the Tenants Union opposed it, unless JM had
obtained the approval of the Rent Board. JM therefore needed a so-
called tenant certificate as evidence that there was no objection by
the Tenants Union.
The Commission considers that these proceedings concerning the
issuance of a tenant certificate do not involve a determination of the
applicants' civil rights and obligations within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention. On the other hand, the
renovation and repair work might subsequently involve disputes over
civil rights between the tenant and the landlord, such as, for example,
alleged breaches of the lease contract between them or the fixing of
the rent. The applicants have not, however, referred to such disputes,
nor has it been alleged that such matters could not be brought before
a tribunal which would satisfy the requirements of Article 6 (Art. 6)
of the Convention.
It follows that the application, as submitted to the Commission,
is incompatible ratione materiae with the provisions of the Convention
and must be rejected under Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy