Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14654/89

by Per HEDÉN

against Sweden

The European Commission of Human Rights sitting in private

on 6 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 February 1988

by Per HEDÉN against Sweden and registered 16 February 1989 under

file No. 14654/89;

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 applicant is a Swedish citizen born in 1941 and resident

at Gothenburg. He receives early retirement pension.

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

summarised as follows.

In 1987 the applicant requested his landlord to repair or

change the refrigerator installed by the landlord. Following the

landlord's refusal the applicant deducted the costs of the repair from

his rent and deposited the same amount at the County Administrative

Board (länsstyrelsen) of Gothenburg and Bohus County.

In September 1987 the applicant's landlord brought an action

for debt recovery (lagsökning) before the District Court (tingsrätten)

of Gothenburg, claiming a rent debt in the amount of 3,000 SEK which

had fallen due for payment. He further requested that the applicant

immediately be evicted from the apartment.

Following a written exchange of views between the parties the

District Court on 12 January 1988 ordered the applicant to pay the

debt and immediately leave the apartment.

By way of a petition which arrived at the District Court on

18 January 1988 the applicant requested the proceedings to be resumed

(begäran om återvinning) and the execution of the decision of

12 January 1988 to be stayed.

On 20 January 1988 a request by the landlord that the

applicant be evicted and that execution be levied on his property

arrived at the Enforcement Office (kronofogdemyndigheten) of

Gothenburg.

On the same day the District Court opened a file for the

proceedings to be resumed.

On 8 February 1988 the District Court summoned the parties to

an oral preparation of the case on 8 March 1988.

On 11 February 1988 the applicant was notified of the eviction

which was to take place on 23 February 1988. The notice was served

upon the applicant by the Enforcement Office in a closed envelope

which was put in his letter-box.

On 23 February 1988 the applicant was evicted from his

apartment.

On 8 March 1988 the District Court, at the parties' request,

decided to strike the case off its list, the applicant having inter

alia agreed to pay a certain amount of money to the plaintiff.

The applicant was represented by lawyer.

Subsequently, the applicant, no longer legally represented,

appealed against this decision to the Court of Appeal of Western

Sweden (hovrätten för västra Sverige). The appeal was rejected as

being out of time.

The eviction order of 23 February 1988 was upheld on

11 May 1988 by the Court of Appeal to which the applicant had

appealed. On 26 August 1988 the Supreme Court (Högsta domstolen)

refused leave to appeal.

The applicant subsequently reported the District Court to the

Parliamentary Ombudsman (justitieombudsmannen) for the fact that the

Court had not notified the Enforcement Office in writing of the

suspension of the execution. He further reported the Enforcement

Office for the fact that he had not been informed that the decision of

12 January 1988 was going to be executed.

In her statement to the Parliamentary Ombudsman the Chief

Judge of the District Court referred to a written statement by the

judge in charge of the applicant's case. The judge stated the

following:

"By way of written petition of 18 January 1988 Hedén

requested that the proceedings be resumed and that the

execution of the decision of the District Court of

12 January 1988 in the debt recovery matter be stayed.

Following an inquiry by the District Court the Enforcement

Office informed the Court that no request for execution of

the decision was pending... On 5 February 1988 I agreed

by telephone with the secretary of [the creditor's

representative] that the first meeting between the parties

in the case would be held on 8 March 1988. The secretary at

the same time undertook to see to it that the Enforcement

Office be requested to stay the execution [of the decision

of 12 January 1988], if such a request for execution had

been submitted, pending the outcome of the request that the

proceedings be resumed. In other cases I have often relied

on such an undertaking by telephone given by plaintiffs'

representatives who have been well known to me. I have

therefore not issued any order that execution be stayed.

This way of proceeding has not previously led to any

complication. Therefore, in the case at issue I did not

issue any suspension order. Apparently, I have to be a

little more careful in the future when it comes to relying

trustfully on informal undertakings and therefore refraining

from issuing an order that execution be stayed."

The Chief Judge added:

"The practice at the District Court is immediately to make a

decision in matters regarding stay of execution. This is clear

from my inquiry to numerous judges at the District Court.

The statement by B.O. shows that he will also in the future

follow this practice. The District Court naturally regrets

what has happened."

The following is an extract from the statement of 7 April 1988

to the Parliamentary Ombudsman submitted by the Director of the

Enforcement Office:

"...

Had Hedén awaited the arrival of the official instead of leaving

[his apartment] and had he explained to him that a request

for stay of execution was pending, the District Court could have

been contacted in order to inquire whether a decision [upon that

request] had been issued.

...

Before an official who is going to carry out an eviction

leaves the Enforcement Office [he] should ascertain

whether stay of execution has been granted or whether a

decision to stay execution has arrived. It is very rare

and unfortunate that a decision is issued as late as in

Hedén's case."

The following is an extract from the additional statement of

25 April 1988 submitted to the Parliamentary Ombudsman by the

Director of the Enforcement Office:

"The working instructions for the Enforcement Office of 1979

state that great efforts should be made to find a tenant [in

person] in order to notify him of an eviction request under

Chapter 16 Section 2 of the Act on Execution (utsöknings-

balken), the reason being, on the one hand, to guarantee the

legal safeguards of the tenant, and on the other hand, to

facilitate the execution by obtaining more information

regarding the number of children, the extent of the

possessions etc. As to the method of serving the

notification [of the eviction upon the debtor] by putting it

in his letter-box (brevlådedelgivning) the normal practice

has been to try several (up to three) times to find the

debtor [in person] before serving the notification by

putting it in the letter-box.

...

Due to a big work load, long distances and a decreased

number of staff the requirement that several efforts be made

[to notify the applicant in person] has had to be abandoned.

As in other Enforcement Offices the so-called letter-box

notification may now be used already the first time [the

applicant is not found in person], unless there is an

indication that the tenant is temporarily not staying in the

apartment (e.g. because of holidays or hospitalisation).

The official will then check the letter-box to see whether

there is unopened mail in it. Neighbours may also be asked,

as well as the property owner. If it is considered

necessary, the notification will also be sent by regular

mail, in case the tenant is having his mail forwarded. It

is, however, exceptional that a letter-box notification is

made already the first time. Support for this method of

service may in the Enforcements Office's view be found in

the wording of the provision in Chapter 16 Section 2 of the

Act on Execution. Further, support for the method may be

found in [the Report of the Parliamentary Committee on Legal

Matters] No. 1980/81 : 23 p. 39, last Section.

If, on the day of the execution, it is suspected that the

tenant is not staying in the apartment and that he has

not received the notification of the Enforcement Office, the

proceedings will of course be interrupted. New inquiries

from neighbours, the social authorities etc. will then be

made.

...

Having heard [the enforcement official] M.E. about the

method of service she has stated that there was no

indication that Hedén was not staying in the apartment. For

example, there was no mail in the letter-box. When the

[execution] proceedings commenced the notification of the

Enforcement Office could not be found in the letter-box. As

already mentioned, Hedén arrived at the apartment about ten

minutes before the proceedings were to take place. He then

discussed with the property owner who informed him that the

eviction would be carried out. Hedén then left the place.

Had he, instead, waited for the official and told him that

he had submitted a request for stay of execution to the

District Court, the execution could have been stayed.

The Enforcement Office doubts the information given by Hedén

that he had received the Enforcement Office's notification

only a few hours before the [execution] proceedings were to

take place."

The applicant subsequently reported to the police that some

of his possessions had been stolen from his basement storage in

connection with his eviction. The investigation in respect of that

charge was closed by the District Prosecutor of Gothenburg on

29 November 1988. This decision was upheld by the Chief District

Prosecutor (överåklagaren) on 12 January 1989.

It appears from the file that in 1989 the applicant brought an

action against the State, claiming damages for alleged negligence by

the Enforcement Office when carrying out his eviction. The applicant

alleged that the Enforcement Office's actions were unlawful with

regard to the stay of execution and the way in which the notification

of the eviction was served upon him. He further referred to the

alleged loss of his possessions in the apartment as well as in his

basement storage.

The following is an extract from a statement of 5 April 1989

by the National Tax Board (riksskatteverket) to the District Court,

in which the National Tax Board contested the applicant's claim:

"...

As to the possessions which were left in the apartment the

Enforcement Office used the method of changing the lock and

the name [on the door to the apartment] (lås- och namnbytes-

metoden). This is not specifically regulated in law, but has

developed from practice. The provisions in Chapter 16 of

the Act on Execution (utsökningsbalken) do not prohibit the

use of this method. ... It is used in evictions from an

apartment and requires the consent of the landlord. The

possessions may be left in the apartment, but the tenant

loses his right of disposal by the change of the lock;

furthermore, the name on the door is changed. The tenant

may in co-operation with the landlord recover his

possessions. The eviction is concluded when the lock and

the name have been changed and the possessions are stored

with the landlord. ... the official informed Hedén that he

could, in agreement with the landlord, recover the

possessions which were left [in the apartment]. Insofar as

Hedén claims damages because these possessions have been

thrown away he has to turn to the landlord and not to the

State.

As regards the possessions in the basement storage it is

clear ... that it could not be decided with certainty which

storage belonged to Hedén. The storage could therefore not

be emptied. Neither could any lock be changed. Therefore

no eviction regarding the storage took place. Hedén

retained his right of disposal of the storage. Insofar as

he claims damages with regard to the possessions in the

storage he cannot turn to the State, but has to turn to the

person who has broken the lock and thrown away the goods,

that person according to the applicant being the landlord."

The outcome of these proceedings before the District Court

does not appear from the applicant's submissions.

In his decision of 28 June 1989 the Parliamentary Ombudsman

stated the following:

"The possibilities for a District Court to stay execution of

judgments by default (tredskodom), decisions in

debt recovery cases (lagsökningsmål), decisions in cases

regarding judicial assistance (handräckningsmål) or final

decisions (slutbevis) in cases brought by dunning-process

(betalningsföreläggande) are not explicitly regulated by

law. Insofar as decisions in debt recovery cases are

concerned, it follows, however, indirectly from the Act on

Execution, Chapter 3, Section 11, that such a possibility

exists.

Stay of execution is an important part of the legal

safeguards for a person requesting proceedings to be

resumed. A request that the proceedings be resumed is

directed at a decision made in a summary procedure and where

the court's decision is often exclusively based on

information submitted by the plaintiff. It is true that the

summary procedures probably lead to materially correct

decisions in most cases. It may, however, happen that the

debtor, when requesting that the proceedings be resumed,

submits such information that the decision at issue appears

materially doubtful or plainly wrong. In such cases it is

of course important that the decision is not enforced before

the issues in the case may be examined in a normal

procedure. The question of stay of execution must therefore

always be decided urgently. When dealing with [such a

matter] it is not possible to separate requests for stay of

execution which appear justified and those which do not appear

justified, and assume the necessity of an urgent treatment

only for the first-mentioned category. A debtor who is

considered to have weak grounds for his request for stay has

a right to receive a negative decision as quickly as

possible, to guide him in his future conduct. It can in no

case be accepted that the Court, by neglecting to respond to

a request for stay of execution, in practice leaves the

decision whether the execution should be stayed or not

completely in the hands of the plaintiff.

Accordingly, B.O.'s way of handling the request for stay was

wrong. I am gravely concerned about the procedure, as

apparently it has been used also in other cases. Having

regard on the one hand to the fact that B.O. now apparently

has realised that his conduct was wrong, on the other hand

to the fact that he, from what has appeared in the

investigation, had a certain justification for his

understanding that no request for execution would be

submitted, I refrain from pursuing this matter any further.

The handling [of the applicant's case] by the Enforcement

Office does not give rise to any statements by me."

Following a refusal of the applicant's insurance company to

pay compensation for the allegedly lost possessions the applicant

brought an action against the company before the National Board for

Consumer Complaints (allmänna reklamationsnämnden), which recommended

that the insurance company pay compensation, as it had been

established that the lock to the applicant's storage had been broken

by his landlord.

According to Chapter 3, Section 11 of the Act on Execution a

decision in a debt recovery case ordering the payment of a debt may

be immediately executed, provided that no decision to stay execution is

made upon a request that the proceedings be resumed or upon an appeal.

COMPLAINTS

1. The applicant complains that he was evicted from his flat

because the District Court failed to inform the Enforcement Office

of the order that execution be stayed. He alleges that judge

B.O., only after having been informed that the execution was being

carried out, informed the Enforcement Office of the order. By that

time, however, the eviction had already taken place.

The applicant further alleges that he was notified about the

date and time of the eviction only a few hours beforehand. He alleges

that due to hospitalisation he had not been staying in his apartment

during the week before 23 February 1988, on which date he came home at

11.20, finding the notification from the Enforcement Office regarding

the eviction which was to take place on the same day. Due to his

state of shock he left his apartment immediately thereafter.

2. The applicant also complains that his eviction was carried

out in such a way as to cause the subsequent loss of certain possessions

left by the enforcement officials in the apartment and the basement

storage.

The applicant alleges violations of Article 8 of the

Convention.

THE LAW

1. The applicant complains that his eviction was caused by the

District Court's failure to inform the Enforcement Office of the

decision that execution be stayed. He further complains of the method

of service used in order to notify him of the eviction and of the way

in which the eviction was carried out. He invokes Article 8 (Art. 8)

of the Convention which 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."

As regards the alleged failure to inform the Enforcement

Office of the decision to stay execution, the Commission finds

it established that no formal decision was made. The judge in charge

was critisised by the Parliamentary Ombudsman for failure urgently to

make a decision upon the applicant's request for stay of execution.

The Commission observes that under Swedish law the applicant had no

right as such to an immediate stay of execution.

As regards the method of service used for the notification of

the eviction the Commission observes that, although the method of

service used in the applicant's case was exceptional, it was carried

out on the basis of indications that the applicant was staying in his

apartment at the time of the notification. Moreover, the applicant

arrived at his apartment and found the notification before the eviction

was carried out. There is no substantiation of the applicant's

allegation that due to his state of shock he had to leave his

apartment, thereby not being able to inform the enforcement official

in charge of the eviction that his request for stay of execution was

pending before the District Court.

As regards the applicant's eviction the Commission considers

that it constituted an interference with his right to respect for his

private life and his home within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention.

It must therefore be examined whether this interference

was justified under the terms of Article 8 para. 2 (Art. 8-2) of the

Convention. In order to be justified an interference must satisfy

three conditions: it must be "in accordance with the law", it must

pursue one or more of the legitimate aims enumerated in Article 8

para. 2 and it must be "necessary in a democratic society" for that or

those legitimate aims (cf. Eur. Court H.R., Olsson judgment of 24

March 1988, Series A No. 130, p. 29, para. 59).

In the present case there is no indication that the eviction

was not carried out "in accordance with the law".

Furthermore, the eviction was carried out in order to protect

the rights of the landlord. This was a legitimate aim for the

purposes of Article 8 para. 2 (Art. 8-2) of the Convention.

It remains to be examined whether the eviction was "necessary

in a democratic society" for the protection of the rights of the

landlord. The Commission recalls that the notion of necessity implies

that the interference corresponds to a pressing social need and that

it is proportionate to the legitimate aim pursued.

The eviction was, by its very nature, bound to cause

difficulties for the applicant. The Commission observes, however,

that it was based on the District Court's decision of 12 January 1988

ordering the applicant to immediately leave the apartment. The

applicant chose not to comply with that order. Thus, what is at issue

in the present case is the execution of a legally binding judgment.

In a State of law such an execution must be considered "necessary" for

the protection of the rights of others.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains that the way in which his

eviction was carried out caused the subsequent loss of certain

possessions left by the enforcement officials in the apartment and the

basement storage.

The Commission has examined this complaint as submitted by the

applicant. It cannot find any appearance of a violation of Article 8

(Art. 8) of the Convention.

It follows that this part of the application is also

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

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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HEDÉN v. SWEDEN

HEDÉN v. SWEDEN

LEXI