Lexploria

Application No. 11914/86

Charles CUNNINGHAM

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 10 December 1990)

TABLE OF CONTENTS

Page

INTRODUCTION ............................................. 1

PART I: STATEMENT OF THE FACTS .......................... 3

PART II: SOLUTION REACHED ................................ 5

INTRODUCTION

1. This Report relates to Application No. 11914/86 introduced

against Sweden by Mr. Charles Cunningham on 8 August 1983 under

Article 25 of the Convention for the Protection of Human Rights and

Fundamental Freedoms. The application was registered on 3 January

1986. The applicant was represented by Mr. Jan Humlekil, a lawyer

practising in Stockholm.

The Government of Sweden were represented by their Agent, Carl

Henrik Ehrenkrona, Legal Adviser at the Ministry for Foreign Affairs,

Stockholm.

2. On 7 May 1990 the European Commission of Human Rights declared

the application admissible insofar as it related to the applicant's

complaint that his case before the House and Tenancy Court

(bostadsdomstolen) had not been determined by an "independent and

impartial tribunal" (Article 6 para. 1 of the Convention). The

remainder of the application was declared inadmissible. The Commission

then proceeded to carry out its task under Article 28 para. 1 of the

Convention which provides as follows:

"In the event of the Commission accepting a petition

referred to it:

a. it shall, with a view to ascertaining the facts,

undertake together with the representatives of the parties

an examination of the petition and, if need be, an

investigation, for the effective conduct of which the

States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

b. it shall at the same time place itself at the

disposal of the parties concerned with a view to securing

a friendly settlement of the matter on the basis of

respect for Human Rights as defined in this Convention."

3. The Commission found that the parties had reached a friendly

settlement of the case and on 10 December 1990 it adopted this Report,

which, in accordance with Article 28 para. 2 of the Convention, is

confined to a brief statement of the facts and of the solution

reached.

The following members of the Commission were present when the

Report was adopted:

MM. C. A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

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

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

PART I

STATEMENT OF THE FACTS

4. The applicant is a national of the United States of America,

born in 1930 and resident at Johanneshov, Stockholm.

5. The applicant has rented a two-roomed flat at Johanneshov since

1 August 1980. The landlord is Aktiebolaget Svenska Bostäder, a limited

liability company, which is connected with the Federation of Public

Utility Housing Companies (Sveriges allmännyttiga bostadsföretag,

"SABO"). The tenancy agreement between the applicant and the landlord

contains a negotiation clause (förhandlingsklausul) to the effect that

the tenant undertakes to accept what has been agreed upon or will be

agreed upon between the landlord and the Tenants' Union under the

applicable negotiation agreement, notably the level of the rent and

other rent conditions.

6. Such a negotiation agreement is in force between

the landlord and a tenants' union, the Tenants' Union of Metropolitan

Stockholm (hyresgästföreningen i Stor-Stockholm). In accordance with

this agreement, the landlord and the Tenants' Union regularly review

the rent for the flats in the house in which the applicant lives. For

conducting the negotiations, the Tenants' Union receives 0.3% of the

rent from the landlord. The landlord company and the Tenants' Union

have also concluded one agreement concerning leisure facilities and

one concerning the protection of tenants' interests (boendeinflytande).

Under the agreement on the protection of tenants' interests the

Tenants' Union is entitled to compensation for the functions which it

has under the agreement. The compensation shall correspond to 0.4% of

the rents in all the flats covered by the agreement. Under the

agreement on leisure facilities the Tenants' Union is to receive 0.5%

of the annual rents of the flats in the properties covered by these

facilities.

7. The applicant gave notice to terminate his tenancy agreement

for the purpose of changing the conditions of the agreement.

He subsequently referred the dispute to the Rent Board (hyresnämnden)

of Stockholm County, where he claimed inter alia that his rent be

reduced by 1.2%, which amount was paid by the landlord to the Tenants'

Union, and that the negotiation clause be removed from his tenancy

agreement. On 7 March 1984 the Rent Board rejected the applicant's

claims.

8. The applicant appealed to the House and Tenancy Court

(bostadsdomstolen). The applicant argued that he was forced to accept

the negotiation clause, since the landlord did not accept a tenancy

agreement which did not include that clause. He also stated that his

sight was reduced and that he for that reason was not able to read the

text in the lease. Furthermore, the negotiation clause involved an

approval in blanco of future circumstances unforeseeable to the

applicant. This disproportion, in his view, had systematically

been exploited by the landlord and the Tenants' Union. The activities

concerning development of tenants' influence and leisure facilities

could be criticised in several respects. Tenants who, like the

applicant, were not members of the Tenants' Union, had no influence on

these activities. On these grounds, he should be entitled to a

reduction of the rent, corresponding to the 0.9% that was paid for

these activities. The Tenants' Union also conducted the rent

negotiations poorly. The applicant therefore was entitled to a rent

reduction corresponding to the amount paid for rent negotiations, 0.3%.

9. On 9 July 1985 the House and Tenancy Court rejected the

appeal. The Court was composed of three professional judges and four

lay assessors. The four lay assessors were Mr. E. Olsson, Managing

Director of SABO, Mrs. M. Andréasson-Frohnert, Head of Division at

SABO, Mrs. S. Johansson, Ombudsman at the National Tenants' Union, and

Mr. S. Gustafsson, Member of Parliament for the Social Democrats.

PART II

SOLUTION REACHED

10. Following its decision on the admissibility of the

application, the Commission placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

11. Following an exchange of letters between the parties and a

proposal by the Commission, the Agent of the Government, by letter of

26 November 1990, submitted the following agreement which had been

reached between the applicant and the Government and which had been

approved by the Government on 22 November 1990.

"SETTLEMENT

On 7 May 1990 the European Commission of Human Rights

decided to declare admissible Application No. 11914/86

lodged by Mr. Charles Cunningham against Sweden.

The Government and Mr. Cunningham have now reached

the following friendly settlement on the basis of respect

for Human Rights as defined in the Convention in order to

terminate the proceedings before the Commission.

a) The Government will pay the sum of SEK 10.000 to

the applicant.

b) The Government will pay the applicant's legal costs

in the amount of SEK 7.750.

c) The applicant declares that he has no further

claims in the matter.

This settlement is dependent upon the formal approval of the

Government.

Stockholm, 15 November 1990 Stockholm, 17 November 1990

(signed) (signed)

Carl Henrik Ehrenkrona Jan Humlekil

Agent of the Swedish Government Counsel for the applicant"

12. The Commission, at its session on 10 December 1990, noted that

the parties had reached an agreement regarding the terms of a

settlement. The Commission further found, having regard to Article 28

para. 1 (b) of the Convention, that the friendly settlement had been

secured on the basis of respect for Human Rights as defined in the

Convention.

13. For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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CUNNINGHAM v. SWEDEN

CUNNINGHAM v. SWEDEN

LEXI