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AS TO THE ADMISSIBILITY OF

Application No. 30323/96

by Bent Scheving THORSTEINSSON

and Emanuel MORTHENS

against Iceland

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 November 1995

by Bent Scheving THORSTEINSSON and Emanuel MORTHENS against Iceland and

registered on 28 February 1996 under file No. 30323/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are citizens of Iceland, born in 1922 and 1921

respectively. They are resident in Reykjavik. The second applicant is

represented by the first applicant before the Commission.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

The applicants are inhabitants and owners of flats in a block of

flats in Reykjavik. The building consisted of 34 flats of equal size

plus undivided joint property (a janitor's flat). The flat considered

to be for a janitor was subsequently divided into two flats

constituting joint property. One was taken into use as a janitor's flat

and the other one was intended for a nurse.

After the construction of a new janitor's flat a new agreement

was reached respecting the division of the joint property. It was

stated in the agreement that each separate flat represented 1/35th of

the joint property.

On 22 September 1993 the owners, at a house-meeting, decided to

sell the original janitor's flat. 29 of the owners voted for the sale,

but three of the owners (including the applicants) voted against.

On 27 October 1993 the applicants, together with a third person,

lodged civil proceedings against the housing association before the

Reykjavik District Court (Héradsdòmur Reykjavikur). The applicants

requested that the decision to sell the flat be annulled. They

submitted that since the flat was joint property of all flat owners it

should not to be sold without the approval of all of them. They

referred to their right of ownership, stating that they were not to be

obliged against their will to hand over their property.

The housing association submitted that the decision concerning

the sale had been made at a lawfully called house-meeting and in the

manner stipulated in the legislation regarding apartment houses.

It appears that according to section 19 of Act No. 26/1994 a

housing association is not authorised to decide upon a sale of a

considerable part of a joint property unless all the owners agree to

it. A qualified majority of two thirds is required if the sale concerns

an insignificant part of the property.

In its judgment of 28 March 1994 the Reykjavik District Court

found the decision of the house-meeting to be invalid as not all the

owners had agreed to sell.

The housing association appealed to the Supreme Court

(Hæstirèttur Islands). On 1 June 1995 the Supreme Court annulled the

District Court's judgment and rejected the applicants' claims,

approving the housing association's decision to sell the flat as the

sale had been approved by more than two thirds of the flat owners. The

Supreme Court found that the alterations to the proportions of

ownership in the building applied equally to all the flat owners and

were insignificant. The Supreme Court invoked section 19 of Act

No. 26/1994. It also stated that the decision had been taken by a

lawfully called meeting and according to the law. One out of three

Supreme Court judges dissented.

COMPLAINT

The applicants complain that, due to the Supreme Court's judgment

approving the sale of the two flats, they were not entitled to the

peaceful enjoyment of their possessions as they had not approved the

sale. They were allegedly subjected to a deprivation of their

possessions, as their ownership of the block of flats was reduced. They

invoke Article 1 of Protocol No. 1 to the Convention.

THE LAW

The applicants complain that they were not entitled to the

peaceful enjoyment of their possessions as they had not all approved

the sale. They were allegedly subjected to a deprivation of their

possessions, as their ownership of the block of flats was reduced. They

invoke Article 1 of Protocol No. 1 (P1-1) to the Convention which reads

as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provision shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

Article 1 of Protocol No. 1 (P1-1) comprises three different

rules. The first rule, set out in the first sentence of the first

paragraph, is of a general nature and enunciates the principle of

peaceful enjoyment of property. The second rule, contained in the

second sentence of the same paragraph, covers deprivation of

possessions and makes it subject to certain conditions. The third rule,

stated in the second paragraph, recognises that Contracting States are

entitled, amongst other things, to control the use of the property in

accordance with the general interest. The three rules are not

"distinct" in the sense of being unconnected: the second and third

rules are concerned with particular instances of interference with the

right to peaceful enjoyment of property and should therefore be

construed in the light of the general principle enunciated in the first

rule (see Eur. Court HR, James and others v. the United Kingdom

judgment of 21 February 1986, Series A no. 98, p. 29, para. 37).

Moreover, although Article 1 (Art. 1) contains no explicit

procedural requirements, the proceedings at issue must afford the

individual a reasonable opportunity of putting his or her case to the

responsible authorities for the purpose of effectively challenging the

measures interfering with his or her rights under Article 1 of Protocol

No. 1 (P1-1) to the Convention. In ascertaining whether this condition

has been satisfied a comprehensive view must be taken of the applicable

procedures (see, e.g., Eur. Court HR, Agosi v. the United Kingdom

judgment of 24 October 1986, Series A no. 108, p. 19. para. 55). The

Commission considers that the Supreme Court's judgment approving the

sale of part of the joint property without the approval of all the

joint owners might have constituted an interference with the

applicants' right to the peaceful enjoyment of their possessions and

is to be considered under the second paragraph of Article 1 of

Protocol No. 1 (P1-1) to the Convention as to its lawfulness, purpose

and proportionality.

As regards the lawfulness of the assumed interference, the

Commission notes that Act No. 26/1994 regarding blocks of flats

requires that a sale of joint property be approved by all the owners

of a multi-ownership building. However, if the sold property is an

insignificant part of the joint property, the approval by a qualified

majority of two thirds of the ownership is sufficient. In the present

case, the relevant part of the joint property in question was only

1/34th (at the most) which in the Supreme Court's view could not be

considered a significant part of the joint property. In approving the

decision of the house-meeting, the Supreme Court explicitly invoked

section 19 of Act No. 26/1994.

It has to be noted that the Contracting States enjoy a wide

margin of appreciation in enforcing such laws as they deem necessary

to control the use of property in accordance with general interests

(see the above-mentioned James and others v. the United Kingdom

judgment, p. 32, para. 46). The aim of the interference in this case

was to secure the decision-making concerning joint property. The

interests of the other co-owners of the joint property, willing to

sell, have to be taken into account as well as the interests of those

objecting to the sale. In particular, the fairness of a system of law

governing the contractual or property rights of private parties is a

matter of public concern and therefore legislative measures intended

to bring about such fairness are capable of being "in the public

interest", even if they involve the compulsory transfer of property

from one individual to another (see the above-mentioned James and

others v. the United Kingdom, p. 31, para. 41). The interference in

question therefore served a legitimate purpose as being in the general

interest.

The change of the proportions of the ownership in this case was

minimal and, as the applicants obviously will benefit from the sales

price in the same proportion as other owners, the Commission is of the

opinion that the sale of part of the joint property can, having regard

to the State's margin of appreciation, be considered proportionate to

the aim pursued.

Finally, the Commission notes that the applicants had at their

disposal sufficient procedural safeguards for the purposes of

challenging the house-meeting's decision.

Summing up, the Commission finds that the applicants have not

been made to carry an individual and excessive burden and that a fair

balance has been struck between the conflicting interests at stake,

regard also being had to the procedural safeguards afforded to them.

Accordingly, there is no violation of Article 1 of Protocol No. 1

(P1-1) to the Convention. It follows that the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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THORSTEINSSON AND MORTHENS v. ICELAND

THORSTEINSSON AND MORTHENS v. ICELAND

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