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AS TO THE ADMISSIBILITY OF

Application No. 16056/90

by Harry WAHLBERG, Bernt ENGMAN and

Thomas ENGDAHL

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 December 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 November 1989

by Harry WAHLBERG, Bernt ENGMAN, and Thomas ENGDAHL against Sweden and

registered on 25 January 1990 under file No. 16056/90;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicants are Swedish citizens, residing at Johanneshov, a

suburb of Stockholm. Before the Commission they are represented by

Mr. Henrik Hoffman, a lawyer practising in Stockholm.

The first applicant, Mr. H.W., is a member of the Tenants Union

of the Stockholm area (hyresgästföreningen i Stor-Stockholm). The

second and the third applicants, Mr. B.E. and Mr. T.E., are not members

of the Tenants Union.

On 1 October 1959 H.W. rented a flat at Per Lindeströms väg 111

in a residence called Sjöfararen which was part of a residential

complex comprising a number of large apartment buildings. He has

subsequently, on 15 August 1989, moved to another apartment building

in the same street, no. 93 - A.

The second applicant, B.E., lives at Per Lindeströms väg 119, in

another apartment building belonging to the same residential complex.

The third applicant, T.E., also lived at Per Lindeströms väg 119, but

in June 1989 he moved to another address which does not appear to

belong to the above complex.

The lease contracts signed by the applicants for their apartments

at Per Lindeströms väg contained inter alia the following passages:

(translation)

"The tenant will not receive a reduction in the rent

for inconveniences in respect of the right to use the

apartment due to work for normal upkeeping of the apartment

or the building as such, carried out by the landlord when

appropriate, or if such other works are carried out which

are specifically mentioned in the lease.

The landlord has the right, in accordance with

Chapter 3, Section 26, of the Act on the Right of Use of

Immovable Property (lagen om nyttjanderätt till fast

ejendom), to install such pipes for heating, water, sewers,

gas or electricity as are common to two or more apartments,

so-called main pipes."

It appears that in 1988 the landlord - a company, J M Byggnads

och Fastighets AB (hereinafter called JM) - intended to repair and

renovate the buildings in which the applicants lived. JM therefore

contacted the Tenants Union and certain negotiations took place. The

proposed repairs and renovations were discussed due to the fact that

JM could not, according to Swedish law, proceed if the Tenants Union

was opposed to the project. JM therefore needed the Tenants Union's

approval in a so-called tenant certificate (hyresgästintyg).

The Tenants Union arranged meetings with the tenants including

the applicants and eventually JM's renovation and repair proposals were

accepted by the tenants. As regards the first applicant's apartment

building the tenants accepted the proposals by a vote of seven to none

with one abstention (apparently the first applicant's). As regards the

second and third applicants' apartment buildings the vote was nine

votes in favour and two against (the second and third applicants').

Accordingly, an agreement was reached on 14 October 1988 between JM and

the Tenants Union concerning the proposed repairs and renovations. This

agreement foresaw inter alia that JM should bear all costs in

connection with the inconveniences caused by moving the tenants

concerned to other apartments while the works were being carried out.

On this basis the Union issued the necessary tenant certificate in

respect of the apartment buildings in which the applicants resided.

On 18 November 1988 the first applicant lodged an appeal against

the Tenants Union's issuing of this tenant certificate with the

Stockholm Rent Board (Hyresnämnden i Stockholm). On 25 January 1989 the

second and third applicants also lodged an appeal in so far as their

apartment building was concerned. They did not approve of the repairs

and renovations proposed and accordingly disagreed with the tenant

certificate issued by the Tenants Union in accordance with the Act on

Housing Renovation.

On 7 February 1989 the Rent Board informed the first applicant

that it could only examine disputes between the Tenants' Union and the

landlord (JM) but not those between the Tenants Union and the

individual tenants for which reason he was requested to withdraw his

complaints. On 22 February 1989 the first applicant informed the Rent

Board, however, that he intended to pursue the matter. On

27 February 1989 the second and third applicants informed the Rent

Board that they also intended to pursue their complaints.

On 28 February 1989 the Rent Board dismissed the first

applicant's complaint. In its decision it stated:

(translation)

"(The first applicant) ... has complained to the Rent

Board of the fact that the Tenants Union has issued a

tenant certificate, i.e. accepted that certain improvement

work may be carried out in the apartment building.

According to Section 2 A, subsection 2, of the Act on

Housing Renovation (1973:531) the Rent Board is competent

to examine such issues.

However, this competence is limited to the situation

where the owner of the building complains that the union is

opposed to such improvement works.

This is not so in the present case. It follows that

the Rent Board is not competent to examine the case as

submitted by (the first applicant). The Rent Board

therefore dismisses the application."

The second and third applicants received a similar decision,

dated 20 March 1989.

On 14 March 1989 the first applicant appealed against the

decision to the Housing and Tenancy Court (bostadsdomstolen). His

appeal was directed against the fact that the Tenants Union had issued

a tenant certificate. Furthermore he requested the Court to prevent JM

from carrying out the repairs and renovations in question. The second

and third applicants lodged an appeal on similar grounds with the

Housing and Tenancy Court on 10 April 1989.

In two decisions of 12 May and 2 June 1989 respectively, the

Housing and Tenancy Court dismissed the appeals. In its latter decision

the Court stated:

(translation)

"Neither the Rent Board nor the Housing and Tenancy

Court has competence to examine a decision by a tenants

union not to oppose improvement works being carried out in

the building. As held by the Rent Board the appeal must

accordingly be dismissed."

The first applicant subsequently lodged an appeal with the

Government, which decided, on 14 June 1989, not to deal with the matter

as it had no competence to do so.

In the meantime, it appears, the renovation and repair work

started. The applicants submit that this included the replacement of

the water and sewer pipes and a restructuring of the available

apartment space. All three applicants moved out of their apartments

during these works and in accordance with the agreement reached between

the Tenants Union and JM of 14 October 1988, all costs in connection

with this were borne by JM. The renovation work is now finished and the

applicant T.E. has moved back whereas the applicants H.W. and B.E. have

chosen another residence.

COMPLAINTS

The applicants complain, under Article 6 of the Convention, that

they could not, in their capacity as individual tenants, obtain a

determination of their civil rights by a tribunal in that they could

not institute proceedings in which they could oppose the issuing of the

tenant certificate.

THE LAW

The applicants invoke Article 6 para. 1 (Art. 6-1) of the

Convention and complain that they do not have access to a tribunal

which could determine the dispute concerning the issuing of a tenant

certificate by which the landlord was allowed to renovate and repair

their apartments.

The first sentence of Article 6 para. 1 (Art. 6-1) of the

Convention reads as follows:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

and public hearing within a reasonable time by an independent and

impartial tribunal established by law."

The Commission recalls the constant jurisprudence of the

Convention organs, according to which Article 6 para. 1 (Art. 6-1)

applies only to the "determination" of "civil rights and obligations"

or any "criminal charge". As the Convention organs have held on

several occasions, there are cases which are not included in either of

these categories and which thus fall outside the scope of Article 6

para. 1 (Art. 6-1) (see e.g. No. 10144/82, Dec. 11.5.83, D.R. 33 p.

276).

Since in the present case there is no question of a "criminal

charge" the issue to be decided is whether there was a "determination"

of a "civil right or obligation" in the proceedings before the Rent

Board and the Housing and Tenancy Court.

The Commission recalls that under Swedish law the landlord of the

apartment buildings in question, JM, could not undertake the renovation

and repair works if the Tenants Union opposed it, unless JM had

obtained the approval of the Rent Board. JM therefore needed a so-

called tenant certificate as evidence that there was no objection by

the Tenants Union.

The Commission considers that these proceedings concerning the

issuance of a tenant certificate do not involve a determination of the

applicants' civil rights and obligations within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention. On the other hand, the

renovation and repair work might subsequently involve disputes over

civil rights between the tenant and the landlord, such as, for example,

alleged breaches of the lease contract between them or the fixing of

the rent. The applicants have not, however, referred to such disputes,

nor has it been alleged that such matters could not be brought before

a tribunal which would satisfy the requirements of Article 6 (Art. 6)

of the Convention.

It follows that the application, as submitted to the Commission,

is incompatible ratione materiae with the provisions of the Convention

and must be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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WAHLBERG, ENGMAN AND ENGDAHL v. SWEDEN

WAHLBERG, ENGMAN AND ENGDAHL v. SWEDEN

LEXI