LANGBORGER v. SWEDEN
Doc ref: 11179/84 • ECHR ID: 001-45401
Document date: October 8, 1987
- Inbound citations: 0
- •
- Cited paragraphs: 0
- •
- Outbound citations: 1
EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 11179/84
Rolf LANGBORGER
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 8 October 1987)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-14) ............................ 1
A. The application
(paras. 2-4) ..................................... 1
B. The proceedings
(paras. 5-10) ..................................... 1
C. The present Report
(paras. 11-14) .................................... 2
II. ESTABLISHMENT OF THE FACTS (paras. 15-55) ............. 4
A. The particular circumstances of the case
(paras. 15-55) .................................... 4
B. Relevant domestic law and practice
(paras. 32-55) .................................... 10
a. Historical background (para. 32) .............. 10
b. Negotiation of rents (paras. 33-36) ........... 11
c. Rent Boards (paras. 37-44) .................... 12
d. House and Tenancy Court (paras. 45-52) ........ 14
e. Publicity of court decisions (paras. 53-54) ... 18
f. Other rules (para. 55) ........................ 18
III. SUBMISSIONS OF THE PARTIES (paras. 56-108) ............ 21
A. The applicant
(paras. 57-80) .................................... 21
a. Article 6 of the Convention (paras. 57-76) .... 21
aa. "independent and impartial tribunal"
(paras. 57-64) ........................... 21
bb. "public hearing" (paras. 65-68) .......... 24
cc. Were the decisions pronounced publicly?
(para. 69-76) ............................ 25
b. Article 8 of the Convention (para. 77) ........ 27
c. Article 11 of the Convention (para. 78) ....... 27
d. Article 13 of the Convention (para. 79) ....... 27
e. Article 1 of Protocol No. 1 (para. 80) ........ 28
B. The Government
(paras. 81-108) ................................... 28
a. Article 6 of the Convention (paras. 81-104) ... 28
aa. "independent and impartial tribunal"
(paras. 81-90) ........................... 28
bb. "public hearing" (paras. 91-103) ......... 31
cc. public pronouncement of judgment
(para. 104) .............................. 34
b. Article 8 of the Convention (para. 105) ....... 34
c. Article 11 of the Convention (para. 106) ...... 34
d. Article 13 of the Convention (para. 107) ...... 34
e. Article 1 of Protocol No. 1 (para. 108) ....... 34
IV. OPINION OF THE COMMISSION (paras. 109-164) ............ 35
A. Points at issue
(para. 109) ....................................... 35
B. Article 6 of the Convention (paras. 110-147) ...... 35
a. The applicability of Article 6 para. 1 of
the Convention (para. 111) ................. 36
b. Is it necessary that the procedure before
both the Rent Board and the House and
Tenancy Court conforms with the conditions
of Article 6 para. 1? (paras. 112-114) ..... 36
c. Was the House and Tenancy Court an
"independent and impartial tribunal?"
(paras. 115-144) ........................... 36
d. The requirements of a "public hearing" and
public pronouncement of judgment
(paras. 145-147) ........................... 41
C. Article 8 of the Convention (paras. 148-151) ...... 42
D. Article 11 of the Convention (paras. 152-156) ..... 42
E. Article 1 of Protocol No. 1 (paras. 157-160) ...... 43
F. Article 13 of the Convention (paras. 161-163) ..... 44
G. Recapitulation
(para. 164) ....................................... 44
APPENDIX I HISTORY OF THE PROCEEDINGS .................. 46
APPENDIX II DECISION AS TO THE ADMISSIBILITY ............ 48
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, Mr. Rolf Langborger, is a Swedish citizen born
in 1922 and resident at Solna. He is a consulting engineer by
profession. Before the Commission he is represented by Mr. Bertil
Grennberg, a patent agent resident at Uppsala.
3. The Government are represented by their Agent, Mr. Hans
Corell, Ambassador, Under-Secretary at the Ministry for Foreign
Affairs, Stockholm.
4. The case relates in particular to the question whether the
House and Tenancy Court (bostadsdomstolen), which determined the
action brought by the applicant, could be regarded as an independent
and impartial tribunal within the meaning of Article 6 of the
Convention, having regard to the fact that so-called lay assessors
(intresseledamöter), allegedly adversaries to the applicant, were
sitting on that Court.
B. The proceedings
5. The application was introduced on 7 September 1984 and
registered on 28 September 1984. On 6 May 1985 the Commission
decided, in accordance with Rule 42, para. 2, sub-para. b of its Rules
of Procedure, to give notice of the application to the respondent
Government and to invite them to present before 19 July 1985 their
observations in writing on the admissibility and merits of the
application. At the request of the Government the time-limit was
prolonged until 1 September 1985.
The Government's observations were dated 27 August 1985 and
the applicant's observations in reply were dated 15 October 1985.
On 12 December 1985 the Commission, after an examination of
the admissibility of the application, decided to invite the parties to
a hearing on the admissibility and merits of the application.
At the hearing, which was held on 9 July 1986, the applicant
was represented by Mr. Bertil Grennberg. The Government were
represented by their Agent, Mr. Hans Corell, and as advisers
Mrs. Lena Moore, legal adviser at the Ministry of Justice, and
Mr. Håkan Julius, legal adviser at the Ministry of Housing and
Planning.
6. On 9 July 1986, the Commission declared the application
admissible (1).
__________________
(1) See decision on admissibility, Appendix II.
7. The parties were then invited to submit additional
observations on the merits of the application. The Government's
observations were dated 1 October 1986 and the applicant's
observations were dated 10 October 1986. These observations were
transmitted to the other party for information.
8. On 10 December 1986 and 9 May 1987 the Commission considered
the state of proceedings of the case.
9. On 8 October 1987 the Commission deliberated on the merits
of the case and took the final votes in the case.
10. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C. A. NØRGAARD
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G. H. THUNE
Sir Basil HALL
The text of the Report was adopted by the Commission on
8 October 1987 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1
of the Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found disclose
a breach by the Government of their obligations
under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
14. The full text of the parties' submissions, together with
the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
15. The applicant rents a six-room flat of 119m². The tenancy
agreement, entered into on 1 October 1982 between the applicant and
the landlord (Mr. Johansson), contains a negotiation clause (förhand-
lingsklausul), which reads as follows:
"During the running of the contract the parties undertake to
accept, without previous termination of the contract, the
rent and other conditions agreed upon on the basis of the
applicable negotiation agreement (förhandlingsordning)
between, on the one hand, a property owners' union affiliated
to the Swedish Federation of Property Owners and a landlord, who
with his property is affiliated to such a union, and, on the
other hand, a tenants' union affiliated to the National Tenants
Union."
Under this clause the amount of the rent shall be determined
by negotiation between the Tenants Union of the Stockholm area
(hyresgästföreningen i Stor-Stockholm) and the Stockholm Property
Owners Union (Stockholms Fastighetsägareförening). These two unions
have an agreement which regulates the negotiations. The tenants'
union receives a commission which is paid by the landlord in
proportion to the amount of rent agreed by the two unions. At present
this amount is 0.3% of the rent.
16. Being dissatisfied with the amount of the rent and the fact
that he was represented by the tenants' union in question, the
applicant gave notice by letter of 15 June 1983 to terminate his tenancy
contract for the purpose of changing the conditions of the contract in
accordance with Chapter 12, Section 54 of the Land Act (jordabalken).
The applicant suggested a new contract providing for a fixed rent,
thereby excluding the negotiation clause.
17. The applicant's proposal was rejected by the landlord and, on
23 June 1983, he therefore referred the dispute to the Rent Board
(hyresnämnden) in the Stockholm county.
18. In the applicant's case the Rent Board was composed of one
lawyer and two lay assessors.
19. The President of the Rent Board was Mr. Göran Hogebrandt, who
was appointed as Rent Judge by the Government on 2 April 1981. At the
time of his appointment Mr. Hogebrandt held the position of Associate
Judge of Appeal, which is a non-permanent judicial appointment. His
career has been a normal one within the judiciary, and he has had a
certain number of public assignments. The applicant's case had been
allocated to his section in the court.
20. The lay assessor familiar with the administration of apartment
buildings was Mr. Jan Åke Hedin. The lay assessor familiar with tenants'
problems was Mr. Gösta Gröndahl.
Mr. Hedin was born in 1918. He is an economist and he has
been a lay assessor of the Rent Board for approximately thirty years.
He has served on the Rent Board since its establishment in 1969.
Mr. Hedin is the Chairman of one of the district associations
affiliated to the Stockholm Property Owners Union. He is a licensed
property administrator and is the owner of two properties with
tenants' houses. He is the managing director of his own electricity
business and employs some fifty people.
Mr. Gröndahl was born in 1919. He is a retired customs
officer and has been a lay assessor since the Rent Boards were
transferred into State organs in 1969. He has a long experience of
rent matters. For nine years he was Chairman of one of the district
associations affiliated to the Stockholm Tenants Union. Today he is
only a member of this union.
At the time of the present case, both lay assessors had been
appointed by the National Board of the Judiciary (domstolsverket) in a
decision dated 8 December 1980 for the three-year period 1 January
1981 - 31 December 1983. The appointments, subsequently renewed, were
made after customary processing by the National Board. Both members
served on the Rent Board, at the time of the present case in
accordance with a pre-established schedule.
21. The applicant first challenged the two lay assessors of
the Rent Board. He maintained that the lay assessors, who had
originally been nominated by the organisations of landlords and
tenants, were representatives of the landlords' union and the tenants'
union. He considered that these members were not in a position to
judge the dispute objectively and impartially since the subject-matter
affected the raison d'être of the two unions which drew their
resources from the sums paid out of the rent negotiations. The
applicant also alleged a risk of discrimination for political reasons
on the part of the tenants' union, which had socialist inclinations,
because the applicant was a county councillor (landstingsman) elected
as representative of the moderate right-wing party (moderata
samlingspartiet). The applicant claimed that the negotiation clause
in his contract should be deleted and he also objected to the amount
of the rent.
22. The Rent Board held a hearing on 17 November 1983. Both the
applicant and his representative, as well as the representative of the
landlord, were present at the hearing. The President of the Rent
Board, Mr. Göran Hogebrandt, first rejected the challenge of the
two lay assessors, giving the following reasons:
"Section 5 of the Act on Lease Boards and Rent Boards (lagen
om arrendenämnder och hyresnämnder) provides that in a case
as the present one the Board shall be composed of one
member who is well acquainted with the administration of
rented residential property and one member who is well
acquainted with or familiar with the situation of tenants.
These members have been appointed in the present case by the
National Board of the Judiciary upon proposals from the
Swedish Federation of Property Owners and the National Tenants
Union respectively. This fact alone could not constitute
a ground for challenge.
In view hereof, and as there is no other reason which
could justify a challenge of Mr. Hedin and Mr. Gröndahl,
the applicant's challenge shall be rejected."
23. Thereafter the Rent Board heard the parties on the merits of
the case. At the end of the hearing the Rent Board announced that the
decision in the case would be made available at the Rent Board's
registry on 1 December 1983.
24. The Rent Board's decision in the case was delivered on
1 December 1983 and the Board's conclusion was that the applicant's
claims were rejected. The applicant received a copy of the decision
by ordinary post.
As regards the reasons for rejecting the the applicant's
claim that the negotiation clause be excluded, the Rent Board stated
as follows:
"In the assessment of a dispute as to the retention of a
negotiation clause particular regard must be had to the
statements in the travaux préparatoires to the Rent Negotiation
Act. The responsible Minister inter alia stated the following:
"A tenant may of course also refer a dispute
concerning a negotiation clause to the Rent Board
even if this is not the result of a common action
by those living in the house. It is possible that
the tenant does not oppose collective negotiations
concerning the house in which he lives. However,
on account of circumstances relating to his
personal living conditions he may wish himself to
stay outside such negotiations and retain his
right to conclude individual agreements on changes
of the rent with the landlord.
In such a case the Rent Board shall assess the
strength of the reasons invoked by the tenant in
the particular case in support of his claim. At
the same time the Rent Board must take into
account that the landlord has an interest in the
collective negotiations covering as many flats as
possible as a result of the application of the
utilisation value system (bruksvärdesystem). Even
if the landlord as such has a justifiable interest
in having a negotiation clause included in the
tenancy agreement, it can be reasonable in a
number of cases to comply with the tenant's
request for an individual right to negotiation.
As I just indicated the Rent Board shall weigh on
the one hand the interest in not making a rational
negotiation of the rent issue too difficult and,
on the other hand, the principle that the
individual tenant should have the greatest
possible freedom in concluding agreements.
Circumstances which militate in favour of the
tenancy agreement not including a negotiation
clause can be connected with the character of the
flat and the house. Thus it can be a special type
of flat to which the collective negotiation form
is not particularly well adapted. It can also be a
question of an older house with considerable
differences of quality between flats. If the
tenant then considers that he can achieve better
rent conditions by negotiating directly with the
landlord, there may be reasons to let him do so.
If the negotiation agreement comprises only a
small number of flats can in my opinion also be a
reason for accepting such an action from a tenant.
A case which can also lead to a flat being exempted
from the collective negotiation is that the tenant
and the landlord are relatives or that there are
other personal relations between them. In such a
case the parties should normally be in agreement,
and the Rent Board need not enter into an
examination of the merits.
The tenant may also in a particular case invoke
that the negotiations have not been conducted in a
way which is compatible with the provisions of the
Rent Negotiation Act. Circumstances of this
nature must obviously be given great importance
when the Rent Board examines the case. In my
opinion a negotiation clause should be excluded if
for instance it appears from the investigation
that there is an obviously excessive remuneration
to the tenants' organisation.
In summary I thus propose that in the Rent
Negotiation Act there be included a provision
concerning the basis for the assessment, when the
Rent Board has to examine a dispute regarding the
inclusion or retention of a negotiation clause in
the tenancy agreement. The provision ought to
have as its aim that the tenancy agreement shall
contain a negotiation clause, if it is not
reasonable that the negotiation clause should not
apply in view of the tenant's personal living
conditions, the attitude of the other tenants who
are affected by the negotiation agreement and
other circumstances (Government Bill 1977/78: 175
p. 130 etc)."
In the present case the applicant - as his submission may be
understood - has alleged that he lacks confidence in the
tenants' union as such and in its manner to conclude
agreements on rent, in particular for such tenants who are
not members of the tenants' union.
The Rent Board finds it established from the investigation
in the case that on the occasion of the latest negotiation
agreement (1 December 1982) (the applicant's flat) was
given the same rent as other flats of the same size in
the house. The Rent Board furthermore finds that on
1 October 1982 (the applicant) entered into a new rent
agreement where the rent is the same as in the above
mentioned negotiation agreement (221 SEK per sq. metre flat
surface and year). Even if at the beginning of the meeting
in this case (the applicant) did not want to accept that he
had signed the tenancy agreement, nothing else has been
proven than that it is a voluntary agreement which has been
concluded. Neither has the investigation of the case given
cause to believe that the rent for (the applicant's) flat
deviates from the rent in similar flats in the stock of
flats held by the public utility companies.
In view of what has been said above and the other
circumstances the Rent Board finds that it has not been
shown that the negotiation activity in (the applicant's)
case has been conducted by the tenants' union in such a way
as to be in conflict with the provisions of the Rent
Negotiation Act. When making an assessment between, on the
one hand, a rational negotiation work when fixing rents and,
on the other hand, the principle that the individual tenant
should enjoy the greatest possible freedom in concluding
agreements, the Rent Board finds that the negotiation clause
should also in the future be included in (the applicant's)
rent agreement. His claim should therefore be rejected."
25. The applicant appealed to the House and Tenancy Court
(bostadsdomstolen) basing himself inter alia on Articles 6, 11 and 13
of the Convention. He argued that the Court, as the highest competent
body, was the national authority within the meaning of Article 13 of
the Convention. He called for a thorough examination of the challenge
raised in the first instance. He also challenged any lay assessors of
the House and Tenancy Court who might represent the landlords' and
tenants' unions. As to the merits, the applicant reiterated his
request not to be represented by the tenants' union and asked to be
permitted to fix his rent by means of an individual contract with the
landlord.
26. In the applicant's case the Court was composed of four members.
The President was the President of the House and Tenancy
Court, Judge Hans Svahn, who also held the permanent position of
Chamber President in the Court of Appeal (hovrättslagman). The
Government appointed Mr. Svahn on 1 September 1983, as President of
the House and Tenancy Court from 1 October 1983 to 30 September 1986.
After a customary judicial career, and in addition service in both
Parliament and the Ministry of Justice, Mr. Svahn served as Permanent
Under-Secretary and Under-Secretary for Legal Affairs at the Ministry
of Industry. He was then appointed by the Government as Chamber
President of the Svea Court of Appeal, which position he held until
his appointment as President of the House and Tenancy Court. The
appointment as Chamber President of the Court of Appeal is a permanent
judicial appointment. Mr. Svahn formally still holds his position as
Chamber President even during his mandate at the House and Tenancy
Court.
The Court Rapporteur in the case was Mr. Hans Anderberg,
Housing Judge. He served during the years 1969-1979 as Rent Judge at
the Rent Board in Stockholm and was thereafter appointed Housing
Judge. His term was subsequently extended from 30 September 1983 to
30 September 1986, the Government decision being dated 29 September
1983. Formally he still holds his post as Rent Judge, which position
is permanent.
27. The lay member familiar with matters concerning private
property owners was Mr. Bertil Tullberg and the lay member familiar
with tenants' matters was Mrs. Märta Kåremo.
Mr. Tullberg was born in 1913. He had been a permanent member
of the Court for nine years when he resigned in 1984. Before that he
had for many years been a member of the National Rent Council (statens
hyresråd). When he retired in 1979 he had been the managing director
of the Stockholm Property Owners Union for ten years. He is a
Bachelor of Law, and before the period as managing director he was the
legal adviser of the union since 1943. He has never been the
owner of a property with tenants.
Mrs. Kåremo was born in 1923. She was a deputy lay assessor
of the Court for ten years when she resigned on 1 July 1985. Before
that she had the corresponding post in the National Rent Council
since 1967. Before she retired she was an employee of the National
Tenants Union where she was responsible for the training of the
association's staff in legal matters within its competence. At the
time when the applicant's case was decided Mrs. Kåremo was still
employed by the Tenants Union and received a salary from the union.
She was in receipt of a partial disability pension as well as a small
pension from an insurance company.
It follows that both lay assessors have served on the House
and Tenancy Court since its establishment in 1975. Renewal of their
mandates for the period at issue was by a Government decision of 11
June 1981 for the period 1 July 1981 to 30 June 1984.
28. By letter of 28 December 1983 from the House and Tenancy Court
the applicant was informed as follows:
"In the capacity of a party in the above-mentioned case you
are informed that the House and Tenancy Court may determine
the case on the basis of its present state without an oral
hearing."
29. On 23 February 1984 one of the judges of the House and Tenancy
Court rejected the challenge directed against the two lay assessors of
the Court. This decision was to be made public on 2 April 1984. It
states inter alia as follows:
"The Act on the House and Tenancy Court (lagen om
bostadsdomstolen) provides that the Court shall, in a case
of this nature, be composed of, on the one hand, a lay
assessor who is familiar with tenants' problems and, on the
other hand, a lay assessor who is familiar with the
administration of residential property. All such lay
assessors of the Court have been appointed by the Government
upon proposals from the National Tenants Union and the
Swedish Federation of Property Owners. The fact that Mr.
Tullberg and Mrs. Kåremo are attached to these organisations
could not, therefore, as such be the basis for a challenge
of them. Consequently, and since the House and Tenancy
Court does not find any other reason to disqualify Mr.
Tullberg and Mrs. Kåremo, the Court rejects (the
applicant's) claim."
A copy of this decision was only sent to the applicant on
17 April 1984. This delay was due to a mistake.
30. On 2 April 1984 the House and Tenancy Court delivered judgment
on the merits of the case, thereby confirming the decision of the Rent
Board. The Court sat in private in the absence of the parties and
took its decision without a hearing.
31. The applicant received a photocopy of the judgment by ordinary
post. As this decision referred to another decision of the Court of
the same day rejecting his challenge, the applicant asked the Court
for information on this decision. He then received, on 17 April
1984, a photocopy of the decision given on 23 February 1984.
B. Relevant domestic law and practice
a. Historical background
32. Owing to the increase in the urban population a considerable
number of buildings were erected in the years following the 1890s.
The older buildings generally belonged to individuals but the owners
of modern buildings included bodies whose capital was provided from
public sources. Most of the accommodation was rented. At the end of
the First World War rents increased steeply. To compensate for the
economic inequality existing on the free market between tenants and
landlords the first Rent Boards were established in 1917. These
Boards were composed of representatives of the tenants and the
landlords and presided over by a lawyer. The Boards could act as
mediators and decide disputes on the amount of rent. This system was
abolished in 1923 with the return of free market principles.
Strict economic measures were taken during the Second World
War including a price freeze and the passing of the 1942 Rent Control
Act (lagen om hyresreglering). In principle, rents were fixed at the
level existing when the Act entered into force. The Rent Boards
were re-established.
Some accommodation ceased to correspond to its true market
value. Although collateral economic arrangements were forbidden by law
they nevertheless occurred. It was therefore decided in the seventies
to repeal the 1942 Act without however returning to the free market in
order not to stimulate a steep increase in rents.
b. Negotiation of rents
33. Section 1 of the 1978 Rent Negotiation Act
(hyresförhandlingslagen, "the 1978 Act") provides that conditions for
tenancies shall be negotiated between a landlord or a landlord and a
landlords' organisation on the one hand, and a tenants' organisation
on the other. The negotiation procedure is agreed on by the parties
or fixed by a Rent Board. If a tenancy agreement contains a
negotiation clause the tenant must accept the provisions agreed
between the parties.
35. A dispute as to the maintenance or adoption of a negotiation
clause may be submitted to a Rent Board. Section 2 of the 1978 Act
provides that a negotiation clause shall be adopted or retained if
this is not unreasonable, having regard to the tenant's living
conditions or the opinion of other tenants affected by the clause.
The right to have examined the negotiation clause by a Rent Board is,
according to the travaux préparatoires, laid down for the purpose of
safeguarding the legal security of the individuals. Reference is made
in particular to tenants who are not members of the negotiating unions
(Government Bill No. 1977/78: 175 p. 132). The Rent Board shall
examine the validity of the tenant's reasons for remaining outside the
collective negotiation system and the interests of the landlord. The
Rent Board shall weigh the interest in not preventing rational
negotiations concerning the fixing of rents against the fundamental
demand of the greatest possible contractual freedom for the
individual. The following circumstances may justify an exemption from
the obligation to accept a negotiation clause:
- the special features of the accommodation;
- the negotiation system may apply to only part of the
accommodation concerned;
- the personal relationship between the landlord and the
tenant;
- negotiations failing to comply with the 1978 Act;
- excessive remuneration of the tenants' organisation.
35. Under Section 20 of the 1978 Act, it may be decided in the
negotiations that the rent shall include a sum to remunerate the
tenants' organisation for the part it plays in the negotiations. The
sum intended for this purpose must be specifically indicated in the
negotiation agreement. Section 20, third sentence provides that the
amount may not exceed what can be considered to be reasonable having
regard to the rent, the cost of the negotiation activity and other
circumstances.
36. The system for negotiating rent should in principle apply to
one or more buildings. At present it applies to all accommodation
owned by public organisations and 80% of buildings comprising more
than two flats (flerfamiljshus) in private ownership.
c. Rent Boards
37. The Rent Boards are not regarded under Swedish law as courts
but as administrative authorities.
38. Under Section 4 of the Act on Lease Boards and Rent Boards the
Rent Boards hear and determine disputes relating to rent in accordance
with the provisions of Chapter 12 of the Land Act. They also
determine disputes relating to the application of the Rent Negotiation
Act and other Acts. The Boards also act as mediators. There are
twelve Rent Boards in Sweden. In 1984, they heard 31,194 cases and
8,731 cases were pending at the end of the year.
39. Section 5, first and second sentences of the Act on Lease
Tribunals and Rent Boards provides:
(Swedish)
"Hyresnämnd består av lagfaren ordförande och två andra
ledamöter, om ej annat följer av tredje stycket. Av de
senare ledamöterna skall den ene vara väl förtrogen med
förvaltning av hyresfastighet eller, när ärendet rör
bostadsrättsfastighet, med förvaltning av sådan fastighet
och den andre vara väl förtrogen med bostadshyresgästers
förhållanden eller, när ärendet rör annan lägenhet än
bostadslägenhet, med näringsidkande hyresgästers förhållanden."
(English translation)
"A Rent Board is composed of a legally trained lawyer as
president and two other members, unless the third paragraph
provides otherwise. Of the latter members, one shall be
well acquainted with the administration of residential
properties or, when the case concerns flat-owners' houses,
with the administration of such property and the other shall
be well acquainted with the situation of tenants or, when the
case concerns other flats than flats for dwelling purposes,
with the situation of tenants engaged in business activities."
40. According to Section 6 of the Act on Lease Tribunals and Rent
Boards, the Government or an authority appointed by the Government
shall appoint the chairman and a suitable number of other members for
each Rent Board.
41. The President of a Rent Board is designated Rent Judge and
must have legal education. When a position as president has been
notified as vacant, it is the Government which determine who shall be
appointed, on the basis of applications and the recommendation of a
special Appointments Recommendation Board (tjänsteförslagsnämnd) for
the courts. However, the heads of the three largest Rent Boards are
appointed by the Government without prior application procedure. The
position of the Rent Judges is permanent, and they cannot in principle
be removed from their position. Rent Judges work full time on the
Boards. If more than one president serves on the same Board,
each president has his own section. Incoming cases are distributed
geographically among the different sections.
42. The lay assessors are appointed by the National Board of the
Judiciary for a period of three years. Before a lay assessor is
appointed the organisations concerned with the housing market
(principally, the Swedish Federation of Property Owners and the
National Tenants Union are given the opportunity of proposing
candidates. These proposals are generally followed and no selection
between several candidates is made. The members are considered to sit
on the boards in their personal capacity and not as representatives of
the unions.
Section 6, para. 2 of the Act on Lease Boards and Rent Boards
provides:
(Swedish)
"Innan annan ledamot än ordförande förordnas, skall sådan
riksorganisation av fastighetsägare, hyresgäster,
bostadsrättshavare eller näringsidkare som med hänsyn till
medlemsantal, verksamhet och övriga omständigheter kan anses
väl företräda den intressegrupp som det är fråga om beredas
tillfälle att avge förslag."
(English translation)
"Prior to the appointment of a member other than the
President, a national organisation of property owners,
tenants, flat-owners or businessmen which, in view of its
membership, activities and other circumstances, can be
considered well to represent the interest group at issue,
shall be given the opportunity to submit a proposal."
43. The lay assessors on the Rent Boards serve in accordance with
a schedule prepared in advance and are not designated for a certain
case. They do not therefore know in advance which cases they will be
dealing with.
44. The proceedings before the Rent Boards are, in principle,
oral. The investigation may include an inspection of the
accommodation and the hearing on oath of witnesses or experts. The
procedure for the hearing of witnesses is prescribed by the Code of
Judicial Procedure (rättegångsbalken). The reasons must be given for
the decisions.
Although the Rent Boards are not considered to be courts but
have the status of administrative authorities in Sweden, the
provisions of the Code of Judicial Procedure governing votes,
challenges and the publicity of the proceedings and decisions apply to
them. The Boards apply other provisions of the Code of Judicial
Procedure by analogy, in particular those relating to ordinary civil
actions (dispositiva tvistemål). In other cases the general provisions
of the Administrative Act (förvaltningslagen) apply.
45. In principle the decision is to be given on the day of the
hearing or at the latest two weeks afterwards. The parties are
informed at the hearing of the date on which the decision will be
given. A copy is sent to the parties within seven days if the
decision is given at the hearing.
d. House and Tenancy Court
46. Unlike the Rent Boards, the House and Tenancy Court is
considered to be a court under Swedish law. The 1974 Act on the House
and Tenancy Court (lagen om bostadsdomstol, "the 1974 Act") provides
that the Court shall decide on appeals lodged against decisions of
the Boards in the cases prescribed by the Act. No appeal lies from
the decision of the House and Tenancy Court.
Section 5 of the 1974 Act provides:
(Swedish)
"Bostadsdomstolen består av minst tre ledamöter, som är
lagkunniga och erfarna i domarvärv (lagfarna ledamöter), en
ledamot med teknisk utbildning och erfarenhet av värderings-
eller byggnadsteknik (teknisk ledamot) samt högst tolv
ledamöter med särskild sakkunskap om förhållandena på
bostadsmarknaden (intresseledamöter)."
(English translation)
"The House and Tenancy Court is composed of at least three
legally trained members with professional experience as
judges (lawyers), one member with technical education and
experience of evaluation or building technique (technical
assessor) and, at most, twelve members with special knowledge
of the conditions on the housing market (lay assessors)."
47. The members are appointed by the Government. Under Section 7
of the 1974 Act the lawyers (Housing Judges) and the technical
assessor must not be appointed from among persons who might be
considered as representing the interests of the landlords or the
tenants. The lay assessors are appointed in the same manner as the
members of the Rent Boards (cf. para. 42), the only difference being
that they are appointed by the Government and not by the National
Board of the Judiciary. All members take the judicial oath.
In the travaux préparatoires to the Act on the House and
Tenancy Court (Government Bill 1974:151) the responsible Minister made
the following statement (at p. 103):
"(The Rent Procedure Committee) further assumes that a
(Housing Judge) .... shall have an ordinary post in (the
Court). A consequence of a system as proposed by the
Committee is that an ordinary (Housing Judge) cannot be
dismissed from the post in an administrative procedure.
However, a condition for the Court being able to fulfil its
task to decide on disputes between landlords and tenants is
that the organisations on the rent market have confidence in
the Court and its members. As has been the case concerning
(the judges) in the Labour Court (arbetsdomstolen), it is
therefore appropriate that the general principle, that
(judges) to the greatest possible extent shall have ordinary
posts, shall yield as regards the (judges) of the House and
Tenancy Court. (A judge) should thus not be given an
ordinary post in the House and Tenancy Court, but in view of
the nature of the work be appointed on a temporary post for
a limited time. It is appropriate to determine this time
at three years. It is evident that the mandate can be
renewed, when the period expires. I take it for granted
that that will be the rule."
48. In the Court there is a quorum of seven members, but four
are sufficient if none of the members insists on seven being present
(Section 12). When seven members sit three of them must be lawyers and
four lay assessors (two with experience in administering rented
property and two familiar with the situation of tenants). When
the quorum is four, two shall be lawyers and two lay assessors. In
some cases the technical assessor takes the place of one of the
lawyers. The president is always a lawyer. The general provisions of
the Code of Judicial Procedure apply and in principle the Court
follows the same procedure as an ordinary appeal court.
Pursuant to Sections 2 and 26 of the Act on the House and
Tenancy Court the rules on voting in the Code of Judicial Procedure,
with one exception, apply to the House and Tenancy Court. From
Chapter 16, Section 3 of the Code on Judicial Procedure it follows
that the President of the Court has the casting vote in case of equal
voting.
49. The proceedings are, in principle, written, but a hearing may
be held. Section 20 of the Act on the House and Tenancy Court
regulates the question of a hearing before the Court. It reads:
(Swedish)
"Förfarandet är skriftligt.
Muntlig förhandling får hållas beträffande viss fråga eller
målet i dess helhet, om det kan antagas vara till fördel för
utredningen.
Muntlig förhandling skall hållas, om part begär det samt
förhandlingen ej är obehövlig och ej heller särskilda skäl
talar mot det."
(English translation)
"The proceedings are in writing.
An oral hearing may be held in respect of a certain
issue or the case in its entirety, if a hearing can be
assumed to be to the benefit of the investigation.
An oral hearing shall be held, if a party so requests
and the hearing is not unnecessary and provided also
that no special reasons militate against it."
50. The judgments are delivered as early as possible either at the
hearing or by being made available at the Court's registry. In the
latter case a copy is also sent to the parties by mail.
51. The question of the independence and impartiality of a lay
assessor sitting on the House and Tenancy Court and appointed
after nomination by the National Tenants Union has been examined
by the Supreme Court (högsta domstolen) in case no. Ö 600/81, decision
of 21 September 1982 (reported in NJA 1982 p. 564), in the case of
Hyresgästföreningen Kroken 5. In its decision the Court stated inter
alia as follows:
"In the House and Tenancy Court - as in the Rent Boards -
there are special lay assessors representing those groups
who are affected by the Court's judicial work, inter alia
property owners and tenants, who serve together with the
professional judges. The pattern is the same as in other
similar bodies, such as the Labour Court. As a result of the
participation of the lay assessors the Court is provided
with expertise and knowledge about the ideas which prevail
within the groups concerned. The lay assessors are not
appointed for the particular case but are ordinarily
attached to the Court. As a result of this, they acquire
experience as judges, and at the same time continuity and
consistency in the application of the law are promoted. The
lay assessors are appointed on the basis of proposals from
national organisations which represent the interest group at
issue. This system is designed to meet the interest in
having persons appointed who are well acquainted with the
questions which the Court has to deal with and who can, in
an authoritative way, express the ideas of the interest
groups concerned.
When assessing the question of bias of a lay
assessor regard must of course be had to these members'
special position and the manner in which they are appointed.
Thus it is evident that the fact that the member, generally
speaking, represents a certain interest group cannot imply
that he is biased when dealing with a case where one of the
parties belongs to this interest group. As has been
underlined in the preparatory works (NJA II 1974 p. 546), it
is not, however, intended that the lay assessors in their
work as judges shall feel bound by the interest which they
can be said to represent. They shall, as other members,
work as independent judges and not as representatives of
party interests.
The procedure which is applied when appointing lay
assessors has inevitably as a result that persons are
appointed who are attached to the organisations who make
the proposals and who are loyal to the aims of these
organisations and are prepared to work for them. This can
raise doubts as to a member's impartiality in case the issue
before the Court can be understood as an attack on the
organisation to which the member belongs. The aim of the
action brought by the (applicant association) in this case
has been that the association should be accepted as the
property owner's negotiating partner, thereby replacing the
tenants' union of Stockholm. The applicant association
appears to take the viewpoint that every member who has a
close attachment to the tenants' movement, for that reason
alone, is biased when dealing with such a case.
In view of this, it should first be pointed out that
it is not the task of the lay assessors of the House and
Tenancy Court to represent their organisations. They should
represent the whole interest group at issue without regard
to involvement in organisations. The legislation is
obviously based on the assumption that the lay assessors
shall be able to deal impartially also with disputes where
direct organisation interests are at issue, and it is not
compatible with the provisions of the Act generally to
consider members attached to an organisation as biased in
such disputes. In other words, it has not been intended that
the same approach to the question of bias as was expressed
in the case NJA 1978 p. 464 in regard to a lay member of a
Real Estate Court shall be applied to lay assessors in the
House and Tenancy Court. It is another matter that grounds
for disqualification can of course be at hand if the member
has been involved in the particular dispute which is subject
to the Court's examination.
To accept the applicant association's view on the
question of disqualification would entail certain problems.
Thus it would be required that the House and Tenancy Court -
as the Rent Boards - had access to members or substitutes
who stood outside the national organisations on the market
and who could take part in cases of the kind here at issue.
It would probably turn out to be rather difficult to find
such persons who in other respects could fulfil the
qualification requirements of the Act. Furthermore, these
members would only be working on the Court to a very limited
extent and they would therefore not acquire the necessary
experience of the judicial activity. A system with special
members for certain kinds of disputes would furthermore give
the impression that it is the task of the lay assessor to
work for a certain party's interest in the case, an element
which would conflict with what is the aim of the interest
representation on the Court.
As a result of the above, the fact that Mr. Svensson
had a leading position in the National Tenants Union cannot
as such be considered to have been a reason to disqualify
him from taking part in the House and Tenancy Court's
examination of the (applicant association's) appeal as a lay
assessor. No other fact which can be a reason to disqualify
Mr. Svensson has been invoked by the association."
52. In a proposal of the Governmental Committee on the Judicial
Procedure (rättegångsutredningen) concerning the participation of
experts in courts (Översyn av rättegångsbalken 3. Expertmedverkan och
specialisering, SOU 1987:13), certain critical remarks have been made
against the fact that lay assessors attached to the organisations on
the rent market participate in the Rent Boards and the House and
Tenancy Court inter alia when deciding on issues of retention of a
negotiation clause (pp. 183 - 184).
e. Publicity of court decisions
53. According to Chapter 12, Section 4 of the 1980 Secrecy Act
(sekretesslagen) the information contained in a court judgment or
decision is public provided that the court has not ordered that it
should be secret. Such an order must not cover the ultimate judgments
of the court unless national security interests or other interests of
particular importance make this absolutely necessary.
These rules apply to the House and Tenancy Court. The
decisions of Rent Boards are always public as there are no rules in
the Secrecy Act which apply to them (with one exception which is of no
relevance in the present context).
54. According to Chapter 5, Section 5 of the Code of Judicial
Procedure, which applies to both Rent Boards and the House and Tenancy
Court, judgments and orders shall be pronounced in open court. Only
insofar as the judgment or order contains information which is
declared secret in accordance with Chapter 12, Section 4, second
paragraph of the Secrecy Act, the judgment or decision shall be
pronounced in camera. As mentioned above this rule only applies to
the House and Tenancy Court.
f. Other rules
55. Chapter 11, Sections 1, 2, 5 and 7 of the Instrument of
Government (regeringsformen) reads:
Section 1
(Swedish)
"Högsta domstolen är högsta allmänna domstol och
regeringsrätten högsta förvaltningsdomstol. Rätten att få
mål prövat av högsta domstolen eller regeringsrätten kan
begränsas genom lag. I högsta domstolen och regeringsrätten
får endast den tjänstgöra såsom ledamot som har utnämnts
till ordinarie domare i domstolen.
Annan domstol än högsta domstolen eller regeringsrätten
inrättas med stöd av lag. Om förbud mot inrättande av
domstol i vissa fall föreskrives i 2 kap. 11 § första stycket.
Vid domstol som avses i andra stycket skall finnas
ordinarie domare. I fråga om domstol som har inrättats för
handläggning av en viss bestämd grupp eller vissa bestämda
grupper av mål får dock i lag göras undantag härifrån."
(English translation)
"The Supreme Court is the highest ordinary court and the
Supreme Administrative Court the highest administrative
court. The right to have a case examined by the Supreme
Court or the Supreme Administrative Court can be limited by law.
Only a judge who has been appointed ordinary judge
in the court may participate in the Supreme Court and
the Supreme Administrative Court.
Other courts than the Supreme Court and the Supreme
Administrative Court may be be instituted under the law.
Regarding prohibition against the institution of courts in
certain cases, there are provisions in Chapter 2, Section 11,
first paragaraph.
In a court referred to in the second paragraph there
shall be ordinary judges. As regards a court which has been
instituted for the handling of a specific group of cases or
certain specific groups of cases, there may be exceptions
from this rule in the law."
Section 2
(Swedish)
"Ingen myndighet, ej heller riksdagen, får bestämma, hur
domstol skall döma i det enskilda fallet eller hur domstol
i övrigt skall tillämpa rättsregel i särskilt fall."
(English translation)
"No public authority, nor the parliament, may decide,
how a court shall decide in the individual case or
how the court in other respects shall apply a legal
provision in a particular case."
Section 5
(Swedish)
"Den som har utnämnts till ordinarie domare får
skiljas från tjänsten endast
1. om han genom brott eller grovt eller upprepat
åsidosättande av tjänsteåliggande har visat sig
uppenbarligen olämplig att inneha tjänsten,
2. om han har uppnått gällande pensionsålder eller
annars enligt lag är skyldig att avgå med pension.
Har ordinarie domare skilts från tjänsten genom
beslut av annan myndighet än domstol, skall han kunna
påkalla domstols prövning av beslutet. Detsamma gäller
beslut varigenom ordinarie domare har avstängts från
utövning av sin tjänst eller ålagts att undergå
läkarundersökning.
Om det påkallas av organisatoriska skäl, får den som
har utnämnts till ordinarie domare förflyttas till annan
jämställd domartjänst."
(English translation)
"A person who has been appointed as ordinary judge
may be removed from his office only
1. if, through a criminal offence or gross or
repeated negligence of his official duties, he has
shown himself manifestly unfit to hold the position,
2. if he has attained the applicable age of pension
or otherwise according to law is obliged to resign with
pension.
If an ordinary judge has been moved from his post through a
decision by another authority than a court, he should be
able to request a court examination of the decision. The
same applies in respect of a decision as a result of which
an ordinary judge has been prohibited from performing his
duties or been obliged to undergo a medical examination.
If it is required from an organisational point of view a
person who has been appointed ordinary judge may be removed
to another comparable post as a judge."
Section 7
(Swedish)
"Ingen myndighet, ej heller riksdagen eller kommuns
beslutande organ, får bestämma, hur förvaltningsmyndighet
skall i särskilt fall besluta i ärende som rör
myndighetsutövning mot enskild eller mot kommun eller som
rör tillämpning av lag."
(English translation)
"No authority, nor the parliament or a municipal organ with
the power of deciding, may decide, how an administrative
authority shall, in a particular case, decide if the matter
concerns the exercise of public office against the
individual or against a municipality or if it concerns the
application of law."
III. SUBMISSIONS OF THE PARTIES
56. The parties' submissions on the merits have been made both at
the admissibility stage and at the merits stage. The following is a
summary of the submissions on the merits.
A. The applicant
a. Article 6 of the Convention
aa. "independent and impartial tribunal"
57. The applicant submits that his case was not heard in public by
an independent and impartial tribunal. The applicant concedes that the
Rent Board and the House and Tenancy Court are relatively independent
of the Government, although less than the ordinary courts. For
instance the members of the House and Tenancy Court are not appointed
for life but for three years only. It is however more important to
ensure their independence vis-à-vis the parties. An organ one of
whose members depends on one of the parties is not independent. Even
though a clear connection with the other party to the proceedings, the
landlord Mr. Johansson, is not known, it must be recalled that the
true adversaries were the two unions which live from the negotiations.
Furthermore, the landlord was represented by an employee of the
landlords' union.
58. The persons sitting on the Rent Boards and the House and
Tenancy Court are dedicated to the interests of their respective
unions. One of the two unions had even succeeded in getting one of
their employees (Mrs. Kåremo) on the House and Tenancy Court. A
relationship exists between independence and impartiality as the
former is designed to guarantee the second. The lay assessors cannot
judge a case in a manner which ensures equality of arms. The
applicant is sure to be faced with opponents in both authorities.
59. As to the question whether the Rent Board can be considered
as a "tribunal" within the meaning of Article 6 the applicant refers
to the fact that Swedish law does not recognise the Rent Board as a
court. It follows from this fact that the Rent Board, being an
administrative organ, cannot determine preliminary issues whereas the
courts can do so. The applicant also refers to the fact that the Rent
Board cannot order the production of documents, whereas the Code of
Judicial Procedure prescribes for the ordinary courts that a party has
the right to request an order for the presentation of documents, not
only against the opposite party but also against anybody else, subject
only to certain exceptions (Chapter 28, Sections 1 to 5 and 7 to 9 of
the Code).
The applicant submits that this shows that there are important
differences between the rules of procedure for the Rent Board on the
one hand and the rules of procedure for the ordinary courts on the
other hand.
60. There can be no doubt that the Rent Boards are established
by law and that the procedure followed resembles to a large extent
that before a court in a civilised country. However, it is
appropriate to invoke the maxim under English law: "justice must not
only be done, it must be seen to be done". The applicant submits that
the fact that the organ is not considered as a court in domestic law
is significant. An organ which is not considered by the internal law
as a court cannot be regarded as such a court in the eyes of the
public. The prestige which is given to to an organ which is called a
court is very important.
It would appear certain that the esteem of the Rent Boards
in the eyes of the public suffers from the fact of their composition
with partisan members. It is therefore possibly in the absence of an
evident impartiality that the reason for this general non-esteem is to
be found. With another composition and with some changes in the
procedure the Rent Boards could, according to the applicant, be
considered as satisfying the requirements of a "tribunal". Such a
reform however would be contrary to the aim of the Act in question
which is generally to exclude certain disputes between tenants and
landlords from the jurisdiction of the ordinary courts with a view to
entrusting them to the unions. In this respect it is contrary to the
law of logic to consider these tribunals as tribunals within the sense
of Article 6.
61. As regards the general manner in which cases are distributed
among judges in the courts in Sweden it is known that this is done by
the method which is called "lottning". The Registrar of the Court
designates the cases in an effort to place them with different groups
with as equal work as possible. It does not appear probable that in
the House and Tenancy Court a special group has been chosen to
determine the applicant's case, a group which would be in principle
more unfavourable to his case than another group.
As regards the Rent Board the applicant notes that it is
always the same group which decides his cases, since each group has a
predetermined district assigned to it.
62. Referring to the statement by the responsible minister in the
Government Bill No. 1974: 151, page 103 the applicant submits the
following. The Act concerning the protection of the employees
guarantees for each employee in Sweden that he cannot be fired without
objective and well-founded reasons. It follows that the judges in the
House and Tenancy Court enjoy a security of employment which is less
good than, for example, the personnel at the Registry of the Court.
It is evident that the judge who has lost the unions' confidence will
not be renewed in his mandate when it expires after three years. The
judge will have no right to compensation as provided for in the Act on
the Security of Employment (lagen om anställningsskydd) and he will
not receive any warning in advance.
Normally a person who is fired without well-founded reasons
has a right to be reinstated in his functions by a court. If the
employer refuses to reinstate the person in question the employee has
the right to an indemnity corresponding to at least sixteen months'
salary provided he has been employed for at least five years. This
right of indemnity can go up to 48 months of salary for those who are
more than 60 years of age and have been employed for more than ten
years. It can therefore be seen that the security of employment for
the judges of the House and Tenancy Court is much weaker than for any
other worker.
This is strongly in contrast to the rules for a judge in the
normal court system in Sweden. The applicant refers by way of
comparison to the Instrument of Government, Chapter 11, Sections 1
and 5.
The result is that the security of employment is weaker for a
judge of the House and Tenancy Court than for an ordinary judge and
that it is even weaker than for any employee in Sweden. In fact their
security of employment can be compared to ministers or to a
politically elected person. Moreover, this state of affairs has been
created with the aim of ensuring that the judges of the tribunal
continue to be agreeable to the unions.
63. The applicant submits that it is impossible for him to know
more exactly how the judges of the House and Tenancy Court are
nominated. There is an obligation to advertise the post as vacant.
In principle the Government should then choose the best among the
candidates who present themselves. It is, of course, in the choice of
candidates that the margin of appreciation of the Government plays a
rôle, certainly to the benefit of the friends of the tenants' union.
The applicant submits that the fact that there exists for
these posts special requirements and conditions would certainly limit
the number of candidates, a fact which is already an element of
importance for the final choice.
As regards the method for ensuring that the candidates have
the unions' confidence, it appears most probable that this is done in
the most informal manner possible, i.e. by telephone calls to the
interested unions. This is, of course, a procedure which is
considered inadmissible in the administration at a lower level. It is
"le bon plaisir du prince" which prevails and it is obvious that the
Government like the tenants' union.
The applicant further refers to the decision by the Supreme
Court referred to in para. 51 above and to a statement in the
SOU 1981: 77 pp. 290-291.
64. As regards the Rent Board, the applicant submits that it is
not an independent organ. The applicant bases his argument first
on the fact that its composition is such that one must be rather naive
to have confidence in this body since the case regards the interests
of the same two unions which have two representatives on the body.
Secondly the unions have not proposed these two persons in the
interest of the general public but because they were their own people.
Thirdly, the judges depend on the grace of the unions in case they
want to keep their jobs.
It may be interesting to compare with arbitration boards where
the rules on disqualification are much stronger.
The applicant observes that Mrs. Kåremo, the lay assessor of
the House and Tenancy Court, had worked loyally for a long time for
her union and she evidently enjoyed confidence there.
In these circumstances, i.e. when the dispute concerns the two
unions which have the privilege of proposing the lay assessors, it
appears clear that neither the Rent Board nor the House and Tenancy
Court can be considered as impartial. These instances were not even
independent.
bb. "public hearing"
65. The applicant submits that the House and Tenancy Court cannot
be considered as an equivalent to a Court of Cassation. It has
plain jurisdication and is a court at least according to Swedish
law. There is accordingly no reason to find that the House and
Tenancy Court would be dispensed from the stipulations of Article 6
of the Convention.
66. As regards the question of whether a failure of one
party to ask for a hearing should be considered in general as a
waiver, the applicant would reply in the negative. Swedish courts
never examine a case without hearing the parties in person, except of
course for default judgments when a party has failed to present
himself. The applicant refers to the practice of the Patent Appeals
Court (patentbesvärsrätten). This Court has the practice of sending
to the parties a notice of when the case is ripe for decision. The
notice indicates that the parties should submit any supplementary
observations which they might wish to make before a particular date.
At the same time, the parties are informed that they should ask for a
hearing if they wish to have one. The Court, at the same time,
declares that it may decide the case without a hearing if the parties
do not wish to have one. A party which does not request a hearing in
such a situation has effectively renounced the possibility. However,
the applicant submits that he has not renounced the right to a hearing
in that sense in the present case. The notice from the House and
Tenancy Court of 28 December 1983 shows this clearly. The applicant
has understood that this message was an expression of the opinion
that a request for a hearing would be futile.
67. The applicant has made a visit to the Registrar of the House
and Tenancy Court in order to inform himself of the possibilities of
obtaining a hearing at the request of a party. He has found the
following: The Court determines between 600 and 700 cases a year. In
the course of 1986, up to 3 September 1986 (when the applicant visited
the Court), the Court had held only 13 hearings where the parties were
present. The applicant has examined these 13 cases and he has found
that in each of these cases, the Court has heard either witnesses
under oath or the parties under a solemn declaration (sanningsför-
säkran). The applicant has not had the possibility of scrutinising
the other files, i.e. around 400 files, to see in how many cases a
request for a hearing has been refused. It appears, however, that it
is highly unlikely that these cases are without requests for hearings.
The applicant is himself a lay member of the Regional
Administrative Court (länsrätten) of Stockholm and he is therefore
rather well-informed as to the general chances of obtaining a hearing
particularly in the Courts of Appeal. His apprehensions as regards
the possibility of requesting a hearing are confirmed by the above
result of his study. It is thus as a result of his knowledge that he
has found it useless to ask for a hearing and this is therefore the
reason why he did not ask for one.
68. In the opinion of the applicant, it appears clearly from the
text of Article 6 of the Convention that an individual has the right
to be heard at a public hearing by a tribunal when the case concerns
the determination of his civil rights and obligations. The applicant
has not enjoyed this right before the House and Tenancy Court.
cc. Were the decisions "pronounced publicly"?
69. As regards the decision of the House and Tenancy Court
concerning the challenge of the lay assessors, it is evident that this
decision was not publicly pronounced since the applicant himself had
to take special steps to be informed thereof.
70. As regards the other decisions, they have been brought to the
applicant's attention by ordinary post.
71. The Government have submitted that the decisions were kept at
the Registry of the bodies concerned, that everyone had the right to
be informed of the decisions, and that therefore the decisions had
been publicly pronounced within the meaning of Article 6.
It is true that it is possible for anyone to go to the
Registry and request that they bring along the file of each case
which has been determined. It remains to be examined whether this can
be regarded as sufficient publicity within the meaning of Article 6 of
the Convention. The applicant submits that in his opinion, the
publicity of the judgment can hardly be separated from the publicity
of the entire procedure. In principle, the ideal situation would be
that a tribunal hears the parties and then delivers judgment after
deliberations which are so short that the public can fruitfully wait
in the tribunal.
72. Since it is useless to read out a judgment in an empty room,
and there is a great risk that the room would be empty, Article 6 must
be read in its entirety. What must for instance be taken into account
are the regulations concerning the right for a High Contracting Party
to prohibit access to the hearing on certain conditions enumerated,
except for the pronouncement of the judgment. This presupposes a
hearing with access of the public to the hearing room followed more or
less immediately by a judgment.
The authors of the Convention have obviously wished to
prohibit cursory procedures "à la sauvette" and this is certainly one
of the aims of the rules on publicity contained in Article 6. The
great Swedish author, Strindberg, has said that injustice is "being
hanged in silence", thereby implying that in a democratic country, the
oppression against the individual is possible only when the public
opinion does not know anything.
73. The public opinion is not formed as a result of every
individual taking personal knowledge of the facts of every dispute but
because there are individuals such as journalists who inform
themselves of the interesting facts. The public hearings of tribunals
are an important source of information of the manner in which justice
is done in a democratic state. Democracy can obviously not have much
sense without free access to information.
It appears evident that the authors of the Convention have
regarded the access to information about what happens in tribunals as
so important for the public and the parties involved that it has been
necessary to provide for public hearings in all cases where a superior
interest does not prevent it.
74. It also appears to be evident that the intention was to
lay down a formal procedure from which it would follow that the
parties were not prevented from submitting orally all the arguments
which they thought would support their case. Oral pleadings is part
of the European heritage. The alternative to an oral procedure must
also be considered, i.e. a written procedure, in order to understand
why the authors of the Convention have so clearly provided for an oral
procedure in cases concerning civil rights and obligations or in
criminal cases.
The characteristics of the written procedure are a bunch of
papers, files filled with arguments in a depressing mixture,
important, instructive, indifferent and without sense. From all of
this, it must be traced what is true, what is false, what is proven,
what is notorious, what has to be accepted by legal presumption and
when in doubt, the question of the burden of proof must be considered.
It goes without saying that a tribunal, which has to take its decision
on the basis of a file in such a case, has enormous difficulties. The
task is not less for the parties. To act well, it is necessary not
only to refute all of the adversary's arguments, but it is also
necessary to try to prejudge the thoughts of the judges of the
tribunal who try to combine the facts which have not been combined
explicitly by the parties. It often happens in the written procedure
that the final judgment surprises both parties, because the tribunal
has found in the file an argument which has been ignored by the
parties or an argument which has been recognised by the parties as
false, since they both generally know the facts better and they did
not find it useful to refute this argument.
75. The advantage of an oral procedure, apart from the fact of
being equitable, is that the tribunal may hear and listen to the
parties and above all, each party will hear and listen to what the
adversary has to say and may immediately clarify the mistakes of the
adversary. The tribunal also has the possibility of putting questions
directly to the parties in order to clarify the facts. There is no
doubt that the oral procedure is advantageous from the point of view
of justice. The advantage of an oral procedure must also be known to
the Commission, having regard to its own procedure.
76. The applicant submits that the present issue is of the
greatest importance, not the least in Sweden where a lot of cases
concerning disputes regarding civil rights are determined by
administrative courts which decide after a written procedure. The Act
on Administrative Procedure provides in Section 9 that the procedure
should be written. It is true that the Act on the House and Tenancy
Court is different since the hearing can cover the whole case and not
only a particular question but it is a fact that in principle the
procedure is written.
In conclusion, no decision on the case has been "publicly
pronounced".
b. Article 8 of the Convention
77. The right to respect for the applicant's home has been
violated. The contractual rights and obligations relating to the
applicant's flat form an integral part of his home. Were this not the
case, the tenant would be in the same position as an illegal occupant
("squatter"). In fact the only difference between legal occupiers and
"squatters" is that the former have a proper contractual agreement
with the landlord and the others have none. The notion of "home"
("domicile" in French) is not merely four walls and a door.
c. Article 11 of the Convention
78. It is true that the applicant was not forced to join the
tenants' union. By forcing him to contribute financially to the
union, the law indirectly relieved the union of making any effort to
win him as a member while at the same time being automatically ensured
of his financial support. It is therefore a case of forced
association, contrary to Article 11, as it is impossible to escape
from the union's control.
d. Article 13 of the Convention
79. In connection with the complaints based on Article 13 the
applicant complains not only of the legislation but also of violations
of the Convention. Admittedly the Contracting Parties are not
required to make the Convention directly applicable in domestic law
but if they do so they are less likely to find themselves committing a
breach of Article 13. The decision of the Supreme Court of
21 September 1982 in the Hyresgästföreningen Kroken No. 5 case (para.
51 above) is evidence of the absence of a domestic remedy with regard
to challenges.
e. Article 1 of Protocol No. 1
80. The applicant's right to respect for his possessions has not
been observed. It is unacceptable that legislation should appoint "ex
officio" a representative to decide an economic dispute of a private
nature and at the tenant's expense. The amounts constituting
this remuneration are paid by all the tenants. In Sweden it is
possible to confer a public task on private organisations
(e.g. the technical testing of motor vehicles) but in these cases
there exist remedies for abuse or excess of authority. In the instant
case the applicant had no such remedy.
B. The Government
a. Article 6 of the Convention
81. The Government concede that Article 6 applies to the
proceedings as they related to the determination of the applicant's
civil rights and obligations.
aa. "independent and impartial tribunal"
82. The fact that the Rent Board is considered as an
administrative authority in Swedish law is not decisive for the
interpretation of the Convention. A "tribunal" must be independent,
impartial and established by law. It appears from the Act on
Lease Boards and Rent Boards that the Rent Boards are
established by law.
The House and Tenancy Court is also established by law
according to the Act on the House and Tenancy Court.
83. There is no doubt as to their independence. Under the Swedish
Constitution (Chapter 11, Section 2 of the Instrument of Government)
no authority can decide in what way a court shall make its decision.
Administrative agencies enjoy a similar independence (Chapter 11,
Section 7) when exercising official power in cases relating to
individuals or when they apply the law.
84. The objection that the Rent Boards and the House and Tenancy
Court are not impartial is mainly directed against the lay assessors.
According to Swedish tradition the ordinary first instance courts have
lay assessors. At present the appeal courts also have such assessors.
The election of such lay assessors is regulated by the Code of Judicial
Procedure. They are chosen by the local and county councils
respectively. They are not chosen for a particular case but for a
period of six years.
The specialised courts also have lay assessors (e.g. the
Labour Court). On account of their specialisation these assessors
must be recruited in the professional organisations of the relevant
fields of activity. They are appointed for a specific period and
considered to act as independent judges. They are subject to the same
provisions relating to challenge as the judges.
These principles also apply to the lay assessors of the House
and Tenancy Court. They judge in their own name and not as
representatives of their organisation. In principle the same rules
apply to the lay assessors of the Rent Board. The only difference
between these assessors and those in the Court would appear to be that
the lay assessors of the Rent Board do not take the judicial oath, but
this is in no way decisive in assessing their impartiality. The
principle of objectivity applies whatever the political or other
connections of the judges. They are under an obligation to act
"according to law" and subject to a system of control in the exercise
of their powers.
85. All Housing Judges are given three-year mandates. Contrary to
the Rent Judges of the Rent Board, the legally trained members do not have
permanent positions on the Court. This means that during their mandate
in the House and Tenancy Court they are formally entitled to hold
another position, either permanent or non-permanent, as judges in the
general courts. They are entitled to return to such a position after
expiry of their mandate. However, in practice their mandate is
generally prolonged for a further three-year term or they are
promoted. The work on the House and Tenancy Court is a full-time
occupation.
As with other high judicial appointments, no application
procedure precedes the Government's appointment of Housing Judges. The
formal requirements are that the person appointed Housing Judge shall
be a legal expert and an experienced judge. Persons who might be
presumed to represent the interests of property owners, tenants or
freehold owners are not eligible. There is normally no documentation
relating to the appointment other than the written authorisation. In
the preparatory stages of appointments in the Ministry of Justice no
contact is made with either Rent Boards, the House and Tenancy Court
or any of the interested organisations with a view to obtaining
opinions as to the suitability of the persons in question.
86. Cases are allocated to sections of the Court. Each Housing
Judge is responsible for one such section, except for the President.
The Housing Judge is court rapporteur, i.e. he is responsible for the
preliminary work on the cases of his section.
87. The lay assessors of the House and Tenancy Court are appointed
for three-year periods in the same way as for the Rent Boards.
However, it is the Government and not the National Board of the
Judiciary which make the appointments. A difference is that the
lay assessors of the House and Tenancy Court must take the judicial
oath before taking up their functions. This oath also illustrates the
idea that the lay assessors in their capacity as members of the Court
shall be independent and representing no one but themselves.
88. The House and Tenancy Court prepares a schedule of service
for the lay assessors with respect to each autumn and spring session.
The members to be convened on any particular day are decided upon,
e.g. which days the members familiar with administration of apartment
buildings or tenants' matters shall be present and which days are
planned for larger groups of members. The proposed schedule is sent
out to the organisations, which decide upon which of the Government-
appointed members shall participate on the days stipulated. The
schedule is sent out a long time in advance and at a stage when it
is not known which cases will be dealt with.
89. As regards the statement in the Government Bill 1974:151
p. 103 the Government recall that under the Constitution (Chapter 11,
Section 1 of the Instrument of Government), there must be permanent
judges in the ordinary courts and the administrative courts.
A person appointed a permanent judge may, according to Chapter
11, Section 5 of the Instrument of Government, be removed from his
office only "if through a criminal act or gross or repeated negligence
of his official duties, he has shown himself manifestly unfit to hold
the position" or for reasons of retirement. If a permanent judge has
been removed from his office through a decision made by an authority
other than a court, he shall be entitled to call for a court to
review the decision.
From this rule, i.e. that judges shall be permanent, exceptions may
be made with respect to courts which have been instituted for the
hearing of a specified group or of specified groups of cases. Such
an exception may only be made by law.
In the travaux préparatoires of the Instrument of Government
it is said that the independence of the courts usually demands that
the judges have the same protection of their employment as permanent
judges but that this rule cannot be without exception. Certain
courts, as the Labour Court and the Market Court (marknadsdomstolen),
"do work under such special conditions that it seems justified that
the judges in those courts also for the future, as for the present,
are appointed only for a certain period".
Under the provision of the Instrument of Government
mentioned above, the professional judges in the House and Tenancy
Court are appointed for a period of three years instead of being
appointed permanently. In the Government Bill 1974:151 p. 103 it is
said that a condition for the Court to fulfil its task to settle
disputes between landlords and tenants is that the organisations on
the rent market have confidence in the Court and its members. With a
reference to the corresponding provisions in the Act on Litigation in
Labour Disputes it is said that the general principle that judges
should be permanent ought to be set aside as regards the professional
judges in the House and Tenancy Court. The meaning of the statement
concerning the confidence in the Court can be found in the travaux
préparatoires of the Act on Litigation in Labour Disputes (Government
Bill 1974:77 p. 113) where it is said that if there is no such
confidence in the Court and its members the importance of the Court
will decrease correspondingly.
It should be noted that a similar provision was also found in
the laws preceding the 1974 Act, namely the 1928 Act on the Labour
Court, and, before that, in the 1920 Act on Arbitration in Certain
Labour Disputes. Furthermore, the composition of the House and
Tenancy Court is reminiscent of the composition of the National Rent
Council, which was replaced by the House and Tenancy Court with the
exception that the professional judges were not employed by the
council. Instead the judges got paid for each commission.
There are no special means by which it is ensured that the
parties have confidence in the Court and its members. As a matter of
fact, the organisations are never consulted in regard to appointments
of the professional judges. Instead, as was stated in the travaux
préparatoires of the Act on Litigation in Labour Disputes (Government
Bill 1974:77 p. 114), it has up till now never occurred that a
professional judge, due to lack of confidence, has not got his
appointment prolonged, and it will probably not occur in the future
either. It is anticipated in the travaux préparatoires that a new
appointment will be given when the three year period has expired
(Government Bill 1974:151 p. 103). This has also been the rule.
90. In conclusion the Government consider that the Rent Board and
the House and Tenancy Court are impartial tribunals within the meaning
of Article 6. They submit that the character of the dispute at issue
before the national organs does not alter this conclusion.
bb. "public hearing"
91. Generally speaking, if the Rent Board could not be considered
as a "tribunal" within the meaning of Article 6, it seems clear that
the condition of Article 6 must be satisfied in the House and Tenancy
Court instead.
92. The Government invoke the Commission's decision on the
admissibility of Application 8005/77 of May 1979 where the Commission
stated i.e. that Article 6 para. 1 of the Convention does not require
that the defendant shall always be present at the hearing provided
that he has the facilities for arguing his case on an equal footing
with the opposing party. In the Government's opinion Article 6 does
not guarantee oral proceedings at all, as long as the principles of
"publicity" and of "equality of arms" are observed. In this context
the Government refer to the general legal principle, saying that the
court is obliged to communicate all writings to the adverse party
and that the court may not base its decision on facts supplied by one
party and not communicated to the other party. The prohibition for
the House and Tenancy Court to change the decision of the Rent Board
to the detriment of the adverse party unless he has been given an
opportunity to respond, is based on this principle. Also the
importance of the Swedish principle of general access to official
documents should be emphasised. This principle means tht there is
full publicity about the proceedings even if there is no oral hearing.
93. The Government have never interpreted Article 6 as an
unconditional demand for an oral hearing in all cases regarding the
determination of civil rights or criminal charges. In the Swedish
translation of the Article the expression "opartisk och offentlig
rättegång" is used for the words "fair and public hearing". The French
text for this expression reads "soit entendue équitablement,
publiquement". The French wording does not seem to have the same
categorical meaning as the English word "hearing" might indicate
according to its exact wording. The French text seems rather to put
the emphasis on the adjectives "fair" and "public".
94. In the Government's opinion, the meaning of the prerequisite
a "public hearing" must be determined in the light of the system of
procedure as a whole. It ought not to be looked upon as solely a
question of whether there has been an oral hearing with the parties
being present or not in a specific case.
95. Accordingly, and since the parties may argue on an equal
footing in the House and Tenancy Court, the prerequisite of a "public
hearing" in Article 6 ought to be looked upon as fulfilled as regards
the House and Tenancy Court, even if there has been no oral hearing
with the parties present.
96. On the other hand, the House and Tenancy Court was never meant
to serve as the sole instance for rent disputes but as an instance of
retrial in these matters. Accordingly, and since the proceedings
before the Rent Boards are oral as a rule, the question of whether the
procedure before the House and Tenancy Court, as the sole instance,
would be sufficient in respect of Article 6 has never been brought to
a head.
97. If the Commission should arrive at the opinion that Article 6
of the Convention requires an oral hearing, the Government argue as
follows.
98. The nature of the case must be considered to be of vital
importance for the question whether an oral hearing should be held or
not. However, the opinion and any requests of the parties are also of
great importance, even if not decisive. It must also be considered if
an oral hearing can be assumed to add anything to the case which does
not already appear from the written observations submitted by the
parties. Different aspects must be considered, depending on whether
the case in question is a criminal case or a civil case. Other
circumstances of importance are of course whether the facts of the
case are undisputed, leaving the Court to decide only upon the
interpretation of the law as applied to these facts.
99. If the party in question, though given the opportunity of
doing so, has not requested an oral hearing when the applicable
legislation provides for such a right, it must be concluded that the
party has in effect waived his right. However, it should be stressed
that according to Swedish legislation it is quite possible to have an
oral hearing even if none of the parties have requested it.
100. By letter of 28 December 1983 sent by the House and Tenancy
Court to the applicant, the latter was notified that the House and
Tenancy Court might decide the case without an oral hearing.
As has already been said the opinion of the parties is of
great importance when the Court decides whether or not to order an
oral hearing. It is expressly laid down in the Act on the House and
Tenancy Court (Section 20) that there must be an oral hearing, should
one of the parties so request, provided that the oral hearing is not
unnecessary and that there are no specific reasons against a hearing.
There was no explicit obligation for the House and Tenancy
Court to inform the applicant that the Court might decide the case
without an oral hearing. By means of this letter the applicant was
given an opportunity to object to the Court giving its decision
in the matter without an oral hearing, and to add whatever information
he wanted. Since the applicant did not react to the letter at all,
the letter of 28 December 1983 can be said to have had some
significance with regard to the question whether there should be an
oral hearing.
101. It is difficult for the Government to state whether a request
for an oral hearing would have resulted in a hearing in this specific
case. This is the case not only because of the constitutional
prohibition for the Government to express their opinion on how a court
should deal with a specific case. To a large extent the answer
depends on what reasons and motives the applicant would have referred
to in his application for an oral hearing. A hearing can be refused
only if it is unnecessary or if there are other specific reasons
against a hearing.
102. The applicant's complaint that he was not given a hearing in
the House and Tenancy Court raises the question of the extent to which
Article 6 applies to a higher court when the right of appeal is not
guaranteed by the Convention. Referring to Article 2 of Protocol No.
7, the Government argue that Article 6 of the Convention does not
apply in all respects to proceedings in a higher court. The
Contracting Parties should have a wide discretion in organising their
appeal system. In a system with several degrees of jurisdiction the
procedure must be rationalised to ensure a sound administration of
justice.
103. A further important factor to be taken into consideration is
the Swedish principle of general access to official documents
(offentlighetsprincipen). According to this principle - which is laid
down in the Freedom of the Press Act (tryckfrihetsförordningen)
forming part of the Swedish Constitution - anybody has the right to
have access to the written submissions to the Rent Boards and to the
House and Tenancy Court. This means that there is full publicity
about the proceedings even if there is no hearing. The Government
maintain that this specific feature of the Swedish legal system should
be given special regard when Article 6 of the Convention is construed.
In all events this provision was respected since there was a hearing
before the Rent Board.
cc. public pronouncement of judgment
104. The Government state that the decisions of the Rent Board and
the House and Tenancy Court were made public at the registries of those
two bodies. Copies were sent to the parties by ordinary mail. The
requirements of Article 6 are satisfied provided the decision was
brought to the knowledge of the public at the Court's registry.
b. Article 8 of the Convention
105. According to the applicant the tenancy agreement constitutes
an integral part of his home and the action of the tenants' union
amounts to a violation of Article 8. The Government consider that
this interpretation of Article 8 goes too far. This part of the
application is outside the scope of the Convention.
c. Article 11 of the Convention
106. As regards the complaint based on Article 11, i.e. the alleged
right "not to be tyrannised by a union" one does not desire to join,
the Government point out that the Swedish system is a rational system
for re-negotiating almost annually hundreds of thousands of tenancy
agreements. The fact that in most of the cases one of the parties is
the National Tenants Union does not imply that the persons whose
contracts are affected by the negotiations are members of this union.
Such persons are free to found their own associations. The
associations taking part in the negotiations must strive to protect
the interests of all tenants. This part of the application is
therefore incompatible ratione materiae with the Convention or,
in any event, ill-founded.
d. Article 13 of the Convention
107. The complaint based on Article 13 is similar to those put
forward in the case of Hyresgästföreningen Kroken 5 (10144/82 Dec.
11.5.83, D.R. 33, p. 276 but unpublished as regards Article 13).
The applicant seems to be complaining of the legislation as such.
However, Article 13 does not guarantee a remedy for such a complaint.
e. Article 1 of Protocol No. 1
108. The complaint based on Article 1 of Protocol No. 1 has two
aspects: the fact that the National Tenants Union is entitled to
negotiate on behalf of the applicant and the fact that this union is
entitled to remuneration from non-members. On the second point the
Government recall that negotiations involve costs. These are borne by
the tenants as a whole whether or not they are members of the union
taking part in the negotiations. The amounts charged are in
accordance with the relevant legislation. The complaint is,
therefore, incompatible ratione materiae with the Convention
or, alternatively, ill-founded.
IV. OPINION OF THE COMMISSION
A. Points at issue
109. The following are the principal points at issue:
- whether the applicant's case was heard by a "tribunal"
satisfying in particular the conditions of independence
and impartiality of Article 6 para. 1 (Art. 6-1) of the Convention
- whether the requirement of a "public hearing" in Article 6
para. 1 (Art. 6-1) of the Convention was fulfilled in the
proceedings before the House and Tenancy Court
- whether the judgment of the House and Tenancy Court was
"pronounced publicly" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention
- whether the facts of the case constitute a breach of the
applicant's right to respect for his private and family
life as guaranteed by Article 8 (Art. 8) of the Convention
- whether there has been a breach of the applicant's right to
freedom of association as guaranteed by Article 11 (Art. 11) of the
Convention
- whether there has been a breach of the right to an effective
remedy as guaranteed by Article 13 (Art. 13) of the Convention
- whether there has been a breach of the applicant's right to
the peaceful enjoyment of his possessions as guaranteed by
Article 1 of Protocol No. 1 (P1-1).
B. Article 6 (Art. 6) of the Convention
110. 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. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part
of the trial in the interests of morals, public order or
national security in a democratic society, where the
interests of juveniles or the protection of the private
life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special circumstances
where publicity would prejudice the interests of justice."
a. The applicability of Article 6 (Art. 6) of the Convention
111. It is not contested, and the Commission has already stated in
its decision on admissibility, that the dispute which the applicant
brought before the Rent Board and the House and Tenancy Court related
to a "contestation" (dispute) concerning his civil rights and
obligations, and that accordingly Article 6 (Art. 6) of the Convention was
applicable to those proceedings. The applicant was thus entitled to a
procedure which satisfied the conditions of Article 6 (Art. 6) of the
Convention.
b. Is it necessary that the procedure before both
the Rent Board and the House and Tenancy Court
conforms with the conditions of Article 6 para. 1 (Art. 6-1)?
112. Article 6 para. 1 (Art. 6-1) of the Convention does not oblige States to
submit "contestations" over civil rights and obligations to a judicial
procedure which at each stage conforms with Article 6 (Art. 6) of the
Convention. It may be sufficient that administrative or professional
bodies determine the dispute at first instance, provided that their
decisions are subject to review thereafter by a judicial procedure which
satisfies the conditions of Article 6 (Art. 6) (cf. Eur. Court H.R., Le
Compte, Van Leuven, and De Meyere judgment of 23 June 1981, Series A
no. 43, p. 22, para. 51 and Öztürk judgment of 21 February 1984,
Series A no. 73, pp. 21-22, para. 56).
113. The Commission notes that it was the House and Tenancy Court
which finally decided on the dispute in the present case, and that the
proceedings before that Court included a full rehearing of the facts
and the law of the case. It follows from this, on the one hand, that,
irrespective of the character of the Rent Board and of the procedure
before that Board, the proceedings before the House and Tenancy Court
must in all respects satisfy the conditions of Article 6 para. 1 (Art. 6-1) and,
on the other hand, that it is not necessary to examine whether the
proceedings before the Rent Board also satisfied these requirements.
114. Consequently, the Commission will limit itself to
examining whether the proceedings before the House and Tenancy Court
satisfied the conditions of Article 6 para. 1 (Art. 6-1) of the Convention.
c. Was the House and Tenancy Court an "independent and
impartial tribunal"?
115. The case-law of the Convention organs as regards the
meaning of an "independent and impartial tribunal" can be summarised
as follows:
The word "tribunal" is not necessarily to be understood as
signifying a court of law of the classical kind, integrated with the
standard judicial machinery of the country (Eur. Court H.R., Campbell
and Fell judgment of 28 June 1984, Series A no. 80, p. 39, para. 76).
A tribunal established by law is, within the meaning of Article 6 (Art. 6), a
body, independent of the parties and impartial, upon which the
national legislation confers a power to take binding decisions in a
particular area, its judicial function being to determine matters
within its competence on the basis of rules of law, following
proceedings conducted in a prescribed manner (Eur. Court H.R., Sramek
judgment of 22 October 1984, Series A no. 84,p. 17 para. 36).
116. In determining whether a body can be considered to be an
"independent" tribunal, i.e. in particular independent of the
executive and of the parties to the case, regard must be had to the
manner of appointment of its members and the duration of their term of
office, the existence of regulations governing their removal or
guarantees for their irremovability, laws prohibiting their being
given instructions by the executive in their adjudicatory role, the
existence of legal guarantees against outside pressures, the question
whether the body presents an appearance of independence and the
attendance of members of the judiciary in the proceedings (see, inter
alia, the aforementioned Campbell and Fell judgment, pp. 39-41, paras.
78-81 with further references).
117. As to impartiality, it is established case-law that
impartiality can "be tested in various ways": a distinction should be
drawn "between a subjective approach, that is endeavoring to ascertain
the personal conviction of a given judge in a given case, and an
objective approach, that is determining whether he offered guarantees
sufficient to exclude any legitimate doubt in this respect" (Eur.
Court H.R., Piersack judgment of 1 October 1982, Series A no. 53, p.
14, para. 30).
118. As to the subjective approach, the personal impartiality
of a judge is to be presumed until there is proof to the contrary (see
the same judgment, loc. cit.).
119. The examination of the impartiality cannot be confined to a
purely subjective test; account must also be taken of considerations
relating to the functions exercised and to internal organisation (the
objective approach). In this regard, even appearances may be
important.
120. The Commission, noting the provisions of the Act on the House
and Tenancy Court, has no doubt that the Court is a "tribunal
established by law" as required by Article 6 para. 1 (Art. 6-1) of the
Convention.
121. As regards the conditions of independence and impartiality the
Commission recalls that the applicant has questioned the independence
and impartiality not only of the lay assessors but also of the
professional judges.
122. As regards the judges, the Commission recalls that they
are appointed by the Government and that appointment to a post as
Housing Judge is not a permanent position, but a three-year mandate.
In practice the mandate is always renewed. A person who might be
presumed to represent the interests of landlords or tenants is under
Section 7 of the Act on the House and Tenancy Court not eligible to
such a post. In the Government Bill 1974:151 p. 103 it is said that a
condition for the Court to fulfil its task to settle disputes between
landlords and tenants is that the unions on the rent market have
confidence in the Court. The Government have explained that the
background to this statement is inter alia that if there was no such
confidence the importance of the Court would decrease. They have
further submitted that there are no special means by which it is
ensured that the parties have confidence in the Court and its members.
The organisations on the rent market are not consulted prior to the
appointment of a Housing Judge.
123. Under Chapter 11, Section 5 of the Instrument of Government
permanent judges enjoy irremovability. This rule does not apply to
Housing Judges. This does not mean, however, that a Housing Judge can
be removed from his post during his term of office.
124. The Commission recalls that in the applicant's case the
Housing Judges held other permanent positions as judges. Mr. Svahn
held the post as Chamber President of the Court of Appeal and
Mr. Anderberg the post of Rent Judge. In respect of both of these
posts, the judges were irremovable under the Instrument of Government
and in their exercise of their term as Housing Judges they enjoyed a
similar irremovability.
125. The Commission considers that where judges are appointed for a
short period an issue could arise as to the independence of the judges.
126. However, in the present case the fact that the mandate was
only three years is not sufficient to establish that the Housing
Judges were not independent of the executive. In this regard the
Commission notes the judges held other permanent positions as judges
from which they were irremovable.
127. As regards the question of the "confidence in the Court" as it
appears from the statement in the Government Bill mentioned above, the
Commission has, following the Government's explanations, understood
this to mean confidence in a general sense and there is nothing in the
practical implementation of this aim which indicates that the judges
are dependent on the parties to a dispute before it.
128. Consequently, the Commission finds no reason to doubt the
independence of the House and Tenancy Court vis-à-vis the executive
and the parties.
129. The Commission further finds that there is no evidence,
neither from a subjective nor from an objective point of view, to
suggest that the professional judges failed to meet the condition of
impartiality.
130. Turning to the lay assessors, who in the present case included
Mr. Tullberg and Mrs. Kåremo, the Commission recalls that the
Convention in no way prevents the setting up of courts or "tribunals"
which include lay assessors who are experts in a particular field and
indirectly represent party interests, for instance - in the present
case - the landlords and the tenants.
131. The Convention institutions have previously examined the
compatibility of such bodies with the conditions of Article 6 (Art. 6) of the
Convention. In for instance the case of Le Compte, Van Leuven and De
Meyere (loc. cit., p. 25, para. 58), the Court accepted as an
"independent and impartial tribunal" the Appeals Council of the Ordre
des Médecins in Belgium which was composed of an equal number of
medical practitioners and members of the judiciary, one of the latter
being the Chairman and having the casting vote. In the case of Ettl
and others (Eur. Court H.R., Ettl and others judgment of 23 April
1987, Series A no 117, paras. 34-41) the Court found that the Austrian
Land Reform Boards - the Provincial Board and the Supreme Board - were
"independent and impartial" tribunals. In para. 40 the Court stated
as follows:
"As to the three civil servants who, pursuant to the Act,
sat on account of their experience of agronomy, forestry
and agriculture, their membership cannot give rise to doubts
about the independence and impartiality of the boards. They
were experts in their fields; such experts are needed in
cases concerning land consolidation, which is an operation
that raises issues of great complexity and affects not only
the owners directly concerned but the community as a whole.
The boards' composition enables them to reach balanced
decisions, having regard to the various interests at stake.
Besides, the domestic legislation of the Council of Europe's
member States affords many examples of tribunals in which
professional judges sit alongside specialists in a
particular sphere whose knowledge is desirable and even
essential in settling the disputes within the tribunals'
jurisdiction."
132. The Commission considers that the manner of appointment of the
lay assessors, notably after proposals from the principal unions on
the rent market which are practically always accepted by the
Government, cannot as such be considered to make the House and Tenancy
Court lack the requisite independence and impartiality. This manner
of appointment can be seen as a practical and effective way of
ensuring that the lay assessors have the required qualifications as
experts in the field of the Court's jurisdiction.
133. Accordingly, the Commission sees no reason to doubt in general
the Court's independence and impartiality as a result of the
participation of lay assessors.
134. However, the essential issue which arises in the present case
concerns the question whether the two lay assessors, having regard to
the manner of their appointment and their particular relation to the
National Tenants Union and Property Owners Union respectively, can be
said to have possessed the necessary impartiality in view of the
particular legal issue brought before the Court by the applicant. It
will be recalled that the legal issue before the Court was whether a
particular clause in the tenancy agreement should be excluded. This
clause conferred on unions affiliated to the unions, which had
proposed the lay assessors, certain powers in relation to the future
determination of the rent between the applicant and his landlord.
Moreover, as a result of this clause and the agreements made between
the two unions, the landlord was obliged to transfer 0.3% of the rent
paid by the applicant to the tenants' union.
135. The applicant in essence argues that in view of the issue
before the Court he felt that both lay assessors were prejudiced
against him. He also submits that being a county councillor
representing the moderate party he is bound to have an adversary in
the lay assessor representing the National Tenants Union which has
socialist inclinations.
136. The Commission finds that the applicant's latter argument is
too remote to substantiate any claim of bias. As regards the first
argument the Commission recalls that any judge in respect of whom
there is legitimate ground to fear a lack of impartiality must
withdraw. What is at stake is the confidence which the courts in a
democratic society must inspire in the public (cf. Piersack judgment,
loc. cit. pp. 14-15, para. 30). The test to be applied is whether as
a result of a particular fact the impartiality of the court is capable
of appearing open to doubt (ibid., pp. 15-16, para. 31).
137. The Commission notes in this context the statement of the
Swedish Supreme Court (para. 51) that the manner of appointment of lay
assessors "can raise doubts as to a member's impartiality in case the
issue before the Court can be understood as an attack on the
organisation to which the member belongs". The Commission further
notes the criticism of the Government Committee on the Judicial
Procedure (para. 52) to the effect that it may be open to doubt
whether lay assessors should participate, when the issue before the
Rent Board and the House and Tenancy Court can be said to
substantially affect the interests of the unions.
138. The Commission considers that the outcome of the applicant's
case before the House and Tenancy Court must have been of interest to
the two unions involved. It is recalled that Mr. Tullberg, when he
retired in 1979, had been the managing director of the Stockholm
Property Owners Union for ten years and before that its legal adviser
since 1943. Mrs. Kåremo was, when the case was decided by the Court,
still employed by the National Tenants Union. Accordingly, the two
lay assessors had been, or were, employed by the two unions which were
directly affected and involved as a result of the negotiation clause
in the applicant's tenancy agreement.
139. In these circumstances, the Commission considers that the
impartiality of the two lay assessors is open to doubt.
140. It remains to be examined whether the House and Tenancy Court
nevertheless could be said to satisfy the requirement of impartiality
since, apart from the two lay assessors, it comprised two judges, one
of whom had the casting vote in case of equal vote.
141. In this respect the Commission recalls that in the case of Le
Compte, Van Leuven and De Meyere, the Commission considered that the
Appeals Council composed of an equal number of doctors and judges, one
of the latter having the casting vote, could not be considered as an
impartial tribunal since the medical members were considered to have
an unfavourable opinion of the applicants in the particular case (Le
Compte, Van Leuven and De Meyere, Comm. Report, 14.9.79, para. 80,
Eur. Court H.R., Series B no 38, p. 41). In its subsequent judgment
in the same case the Court disagreed with the Commission's opinion
holding that the presence of judges making up half of the membership,
including the Chairman with a casting vote "provides a definite
assurance of impartiality" (loc. cit., p. 25, para. 58).
However, there are other cases of the Convention organs which
go in the opposite direction. The Commission refers to the Piersack
case, the De Cubber case and the Sramek case (quoted above). In these
cases the lack of independence and impartiality of one member of the
court or tribunal sufficed to conclude that the court or tribunal did
not fulfil the conditions of Article 6 para. 1 (Art. 6-1) even if the member in
question was only one of more judges forming the full court.
142. The Commission recalls that in the present case there is a
certain degree of institutionalised partisanship resulting from the
manner of selection and participation of the lay assessors in the
determination of rent disputes. This system does not as such
constitute a violation of the Convention (cf. paras. 131-133 above).
It is built on the assumption that there is a balance between the
interests which are represented through the participation of the lay
assessors.
However, in the particular dispute which the applicant brought
before the House and Tenancy Court, which was based on the claim that
the negotiation clause should be removed from his tenancy agreement,
both unions could normally be expected to have a common interest to
maintain that clause (cf. para. 138 above). The Commission therefore
finds that the balance, which was intended to be struck by the
appointment of lay assessors proposed by the two opposing unions on
the rent market, was upset.
143. The Commission considers for these reasons that the bias of
the two lay assessors in respect to the particular issue which the
Court had to decide could not be remedied by the impartiality of the
two professional judges. Thus the applicant's case was determined by
a tribunal which cannot be regarded as an impartial tribunal within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Conclusion
144. The Commission concludes unanimously that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the
applicant's case was not heard by a tribunal which satisfied the
condition of impartiality of Article 6 para. 1 (Art. 6-1).
d. The requirements of a "public hearing" and public
pronouncement of judgment
145. The applicant also complains that Article 6 para. 1 (Art. 6-1) was not
complied with since there was no public hearing before the House and
Tenancy Court and since the decisions of the Rent Board and the Court
were not pronounced publicly.
146. The Commission considers that in view of its conclusion above
(para. 144) it is not necessary to examine whether Article 6 para. 1 (Art. 6-1)
of the Convention has been violated also in other respects (cf. Eur. Court
H.R., Sramek judgment of 22 October 1984, Series A no. 84, p. 20, para. 43)
Conclusion
147. The Commission concludes unanimously that it is not
necessary to examine whether Article 6 para. 1 (Art. 6-1) of the Convention has
been violated as regards the requirements of a "public hearing" and
public pronouncement of judgment.
C. Article 8 (Art. 8) of the Convention
148. The applicant alleges that Article 8 (Art. 8) of the Convention has
been violated. He argues that the contractual rights and obligations
relating to the flat which was his home were themselves an integral part
of his home. The intervention of the tenants' union, which possessed
a monopoly, in the relationship between him as a tenant and the
landlord amounted to an interference with the rights guaranteed by
Article 8 para. 1 (Art. 8-1) of the Convention and this interference cannot be
justified under Article 8 para. 2 (Art. 8-2).
149. Article 8 (Art. 8) of the Convention reads:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
150. The Commission cannot accept the applicant's argument. It
considers that the facts of the case do not disclose any interference
with the applicant's rights guaranteed by Article 8 para. 1 (Art. 8-1) of the
Convention.
Conclusion
151. The Commission concludes unanimously that there has been no
violation of Article 8 (Art. 8) of the Convention.
D. Article 11 (Art. 11) of the Convention
152. The applicant complains that his freedom of association has
been infringed as a result of the obligatory transfer of the tenant's
right of negotiation to a monopoly union. He submits that the freedom
of association includes a right not to be tyrannised by a union he
does not want to join.
153. Article 11 (Art. 11) of the Convention reads:
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to
form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the
administration of the State."
154. The Commission recalls that the applicant has voluntarily
entered into a tenancy agreement with his landlord. The agreement
provides that the amount of the future rent shall be determined
through negotiations between a tenants' union and a landlords' union.
The applicant proposed to the landlord that this clause of the
agreement should be excluded and that the applicant and the landlord
should agree on the rent. However, the landlord refused and the
applicant's action before the Rent Board and the House and Tenancy
Court did not succeed.
155. The Commission considers that the facts of the case do not
disclose any appearance of an action or a failure to act, by which the
Swedish State can be said to have interfered with the applicant's
rights under Article 11 para. 1 (Art. 11-1) of the Convention.
Conclusion
156. The Commission concludes unanimously that there has been no
violation of Article 11 (Art. 11) of the Convention.
E. Article 1 of Protocol No. 1 (P1-1)
157. The applicant complains that the legislature has given to a
private organisation the right to lay hands on the applicant's money.
He alleges that this amounts to a breach of Article 1 of Protocol
No. 1 (P1-1), which 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."
158. It is recalled that the applicant has freely entered into a
tenancy agreement according to which the future rent is fixed after
negotiations between the tenants' union and the landlords' union.
These unions have an agreement as a result of which the tenants'
association receives from the landlord a commission of 0.3% of the
rent agreed by the unions. The applicant is dissatisfied with the
fact that 0.3% of the rent he pays to the landlord is transferred to
the tenants' union.
159. The Commission considers that in view of the low percentage
and amount involved the applicant has failed to substantiate that the
payment by the landlord of this amount to the tenants' union
constitutes an interference with the applicant's right to the peaceful
enjoyment of his possessions.
Conclusion
160. The Commission concludes unanimously that there has been no
violation of Article 1 of Protocol No. 1 (P1-1).
F. Article 13 (Art. 13) of the Convention
161. The applicant submits that he has, both before the Rent Board
and the House and Tenancy Court, alleged violations of the rights
guaranteed by the Convention. However, the House and Tenancy Court
has failed to do its duty to redress the alleged violations, and it
was accordingly not an "effective remedy". In the alternative, the
applicant submits that there exists no effective remedy which is a
breach of Article 13 (Art. 13) of the Convention.
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."
162. Having regard to its conclusion under Article 6 para. 1 (Art. 6-1), the
Commission considers that it is not necessary to examine the case
under Article 13 (Art. 13); this is because its requirements are less strict
than, and are here absorbed by, those of Article 6 para. 1 (Art. 6-1) (see
inter alia the Sporrong and Lönnroth judgment of 23 September 1982, Series A
no. 52, p. 32, para. 88).
Conclusion
163. The Commission concludes unanimously that it is not necessary
to examine separately whether there has been a violation of Article 13
(Art. 13) of the Convention.
G. Recapitulation
164. - The Commission concludes unanimously that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the
applicant's case was not heard by a tribunal which satisfied the
condition of impartiality of Article 6 para. 1 (Art. 6-1) (para. 144).
- The Commission concludes unanimously that it is not necessary
to examine whether Article 6 para. 1 (Art. 6-1) of the Convention has been
violated as regards the requirements of a "public hearing" and public
proonouncement of judgment (para. 147).
- The Commission concludes unanimously that there has been no
violation of Article 8 (Art. 8) of the Convention (para. 151).
- The Commission concludes unanimously that there has been no
violation of Article 11 (Art. 11) of the Convention (para. 156).
- The Commission concludes unanimously that there has been no
violation of Article 1 of Protocol No. 1 (P1-1) (para. 160).
- The Commission concludes unanimously that it is not necessary
to examine separately whether there has been a violation of Article 13
(Art. 13) of the Convention (para. 163 ).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
7 September 1984 Introduction of the application
28 September 1984 Registration of the application
Examination of admissibility
6 May 1985 Commission's deliberations and decision
to invite the Government to submit
observations on the admisibility
and merits of the application
27 August 1985 Submission of Government's observations
15 October 1985 Submission of applicant's observations
12 December 1985 Commission's deliberations and decision
to hold a hearing on the admissibility
and merits of the application
9 July 1986 Hearing on the admissibility and merits
of the application, the Commission's
deliberations and decision to declare
the application admissible.
Applicant
Mr. Grennberg
Government
Mr. Corell
Mrs. Moore
Mr. Julius
Examination on the merits
1 October 1986 Submission of Government's additional
observations on the merits
10 October 1986 Submission of applicant's additional
observations on the merits
Date Item
10 December 1986 Consideration of the state of proceedings
9 May 1987 Consideration of the state of proceedings
8 October 1987 Commission's deliberations on the merits,
final votes and adoption of the Report
Translation
Or. French