Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12836/87

by Ã…ke LINDEN and

Konsumentfinans Karlsson & Lindén AB

against Sweden

The European Commission of Human Rights sitting in private on

1 October 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 22 August 1986

by Åke LINDEN and Konsumentfinans Karlsson & Lindén AB against Sweden

and registered on 3 April 1987 under file No. 12836/87;

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

Rules of Procedure of the Commission;

Having regard to the Government's written observations dated

13 June and 8 November 1989 and the applicants' observations dated

30 August 1989;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The first applicant, Mr. Åke Lindén, is a Swedish citizen,

born in 1945 and resident in Södertälje. He is the joint owner and

director of the second applicant, Konsumentfinans Karlsson & Lindén AB,

a limited liability company incorporated in Sweden.

Before the Commission the applicants are represented by Mr.

Jan Axelsson, a lawyer practising in Stockholm.

The applicants are owners of residential property in

Södertälje.

On 21 September 1981, the Municipal Council (kommunfullmäktige)

of Södertälje decided as a preliminary measure, pursuant to the

provisions of the Tenement Assignment Act (bostadsanvisningslagen),

to declare the whole of central and urban Södertälje a tenement

assignment area within the meaning of that Act. For the further

implementation of this decision the Tenement Allocation Board

(bostadsförmedlingsnämnden) was called upon to make specific

recommendations to the Municipal Executive Board (kommunstyrelsen).

Under the provisions of the Act, a Municipal Executive Board

is empowered to declare one or several of its residential areas to be

tenement assignment areas and to order that the provisions of the Act

should apply to all or certain tenement rentals in those areas.

Landlords who wish to make vacant flats available for rent are thereby

required to report all vacancies to the municipality which may then

assign the tenement to a new tenant. A landlord may refuse to accept

the tenant assigned to him, but he is obliged to let the tenement to

the municipality if it so requests. The municipality may in turn

sub-let to any person irrespective of any objection on the part of the

landlord. Furthermore, the law on tenancy enables the municipality,

with permission from the Rent Board (hyresnämnden), to transfer the

tenement to the sub-tenant.

On 2 April 1984 the Municipal Executive Board decided,

pursuant to Sections 1 and 2 of the Tenement Assignment Act and upon

recommendation of the Tenement Allocation Board, to declare those

residential areas which corresponded to four parishes in Södertälje,

with the exception of two districts, to be a tenement assignment area.

All the tenements in the two exempted districts were owned by a

foundation controlled by the municipality.

Section 1 of the Tenement Assignment Act provides:

(translation)

"One or more residential areas of a municipality may be

declared a tenement assignment area if it is required for

the supply of dwellings within the municipality or within an

area of which the municipality forms part, and which can be

considered as a unit for the purpose of the supply of

dwellings.

Within a tenement assignment area this Act applies to all

flats, unless it is a flat which constitutes part of the

house owner's own dwelling, or a flat in a one-family

house, which is not supposed to be rented permanently, or

in a two-family house or it has otherwise been decided

that only certain flats in the area should be covered

by the Act."

Swedish

"Om det behövs för bostadsförsörjningen inom en kommun eller

inom ett område i vilket kommunen ingår och som kan anses

utgöra en enhet i bostadsförsörjningshänseende, får ett

eller flera bostadsområden i kommunen förklaras vara

bostadsanvisningsområde.

Inom bostadsanvisningsområde är denna lag tillämplig på

samtliga bostadslägenheter, såvida ej fråga är om lägenhet,

som utgör en del av husägarens egen bostad, eller lägenhet

i ett enfamiljshus, som inte är avsett att upplåtas varaktigt,

eller i ett tvåfamiljshus eller beslutats att i övrigt endast

lägenheter av visst slag inom området skall omfattas av lagen."

The second applicant, together with several other property

owners, appealed to the County Administrative Board (länsstyrelsen)

of the Stockholm County on the grounds, inter alia, that there was

already an excess of vacant tenements at the disposal of the

municipality and that the decision to create a tenement assignment

area had consequently been taken in disregard of the legal conditions

contained in the Act. The first applicant was not a party to this

appeal since he did not, at that time, own any property affected by

the decision.

In its decision of 27 March 1985 the County Administrative

Board stated, inter alia, that the aim of the Act was to enable local

authorities to work more actively to achieve a mixed composition of

the population in its residential areas and that in this respect they

enjoyed a wide margin of discretion in the implementation of local

policy. In particular, it was clear from the travaux préparatoires

that it would be an unacceptable restriction on such policy to require

as a prerequisite for declaring a tenement assignment area that there

exist a general housing shortage or a particular housing problem in

respect of certain groups of the population. Having regard to the

situation obtaining in Södertälje, and in particular to the relatively

high concentration of immigrants, the Board upheld the decision of the

Municipal Executive Board. It stated inter alia as follows:

"Since several years the municipality of Södertälje has

tried through different measures - the municipality has

inter alia made use of the assignment right pursuant to the

Housing Supply Act (bostadsförsörjningslagen) and the

Tenement Finance Ordinance (bostadsfinansieringsförordningen)

- to prevent segregation within the housing areas of the

municipality. From the case-file it appears inter alia that

within certain areas of the municipality of Södertälje there

is a very high concentration of immigrants and that these

areas cannot be considered to have a mixed composition of

different households. There exists no agreement between the

municipality and the landlords regarding housing assignment

that satisfies the needs of the municipality.

In these circumstances the conditions for making a decision of a

tenement assignment area under the Tenement Assignment Act must be

considered to be fulfilled. The facts of the case do not disclose

sufficient reasons for rejecting the way the assignment area has

been delimited."

The Board further decided that houses with less than six flats

should be exempted from the decision. In its final assessment, the

Board stated that:

"(The Board) finds that a balance struck between the

municipality's and the affected landlords' interests does

not disclose that the landlords' interests have been

neglected in such a manner that the decision of the Municipal

Executive Board should otherwise be quashed or amended."

On 25 February 1986, the first applicant bought a number of

residential properties which, as a result of the above decisions, were

subject to the provisions of the Tenement Assignment Act.

On 13 March 1986 the Government rejected an appeal against the

decision of the County Administrative Board which had been brought,

inter alia, by the second applicant.

The Tenement Assignment Act was replaced by the Act on

Municipal Tenement Assignment Rights (lagen om kommunal

bostadsanvisningsrätt) on 1 January 1988.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 to

the Convention that the powers conferred on the municipality by the

Tenement Assignment Act, as interpreted by the County Administrative

Board, do not satisfy the requirements of accessibility and clarity

required by the Convention, and further that the decision to declare a

tenement assignment area constitutes an unjustified, arbitrary and

disproportionate measure for the control of the use of their property.

2. The applicants complain further that the decision to exempt

only those districts where the municipality was itself the sole

landlord of affected tenements constitutes an unjustified and

arbitrary discrimination against them as private landlords, contrary

to Article 14 of the Convention taken together with Article 1 of

Protocol No. 1. The applicants also complain that the decision

discriminates against them as compared with property owners in areas

of Sweden where no compulsory allocation of tenements has been

introduced.

3. The applicants further complain that they cannot have the

decision, which implied that their properties were made part of a

tenement assignment area, examined by a court, contrary to Article 6

para. 1 of the Convention.

4. The applicants finally complain that the purpose pursued by

the Tenement Assignment Act of attaining a well-mixed composition of

residents is contrary to Articles 17 and 18 of the Convention, taken

together with Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 August 1986 and

registered on 3 April 1987.

On 13 March 1989 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received, after an extension

of the time limit, by letter dated 13 June 1989 and the applicants'

observations were dated 30 August 1989. A letter from the Government

with further observations was dated 8 November 1989.

THE LAW

1. The applicants allege a violation of Article 6 para. 1

(Art. 6-1) of the Convention on the ground that they could not have

examined by a court the dispute over the decision to declare the area

in which their houses are situated a tenement assignment area.

Article 6 para. 1, (Art. 6-1) first sentence 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 considers that the issues to be decided are

whether the decision to declare the area in question a tenement

assignment area was decisive for the applicants' "civil rights and

obligations" and, if so, whether a genuine dispute of a serious nature

arose between the applicants and the authorities in relation to that

decision. In the affirmative, it would have to be determined whether

the applicants had at their disposal a procedure satisfying the

conditions of Article 6 para. 1 (Art. 6-1) in regard to that dispute.

The Government do not object to this complaint being declared

admissible and admit that there has been a violation of Article 6

para. 1 (Art. 6-1).

The Commission finds that this complaint cannot be regarded as

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

(Art. 27-2) of the Convention. As no other ground for declaring it

inadmissible has been established, this complaint is admissible.

2. The applicants complain that the decision to declare the area

in which their properties are situated a tenemant assignment area is a

violation of their right to property. They invoke Article 1 of

Protocol No. 1 (P1-1) to the Convention which provides:

"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."

The Commission finds, and this is not in dispute between the

parties, that there has been an interference with the applicants'

right to the peaceful enjoyment of their possessions as a result of

the contested decision. It is common ground that the interference

constituted a measure "to control the use of property" and that

consequently the interference is to be examined under the second

paragraph of Article 1 (Art. 1-2).

The applicants submit that the interference was not lawful,

that it did not serve the general interest and that it was not

proportionate to its aim. The Government, on the other hand, submit

that the interference had a legitimate aim, that the decision was

taken in accordance with Swedish law and that the effects for the

applicants were proportionate to the aim sought.

Under the second paragraph of Article 1 of Protocol No. 1

(P1-1) the Commission must examine the lawfulness, purpose and

proportionality of the interference (cf. Eur. Court H.R., Tre

Traktörer AB judgment of 7 July 1989, Series A no. 159, pp. 22-24,

paras. 55-62).

The Convention organs' power to review compliance with

domestic law is limited. It is in the first place for the national

authorities to interpret and apply that law. The requirement of

lawfulness includes that the impugned measure should have some basis in

domestic law. Furthermore, the law must have a certain quality, i.e.

it must be accessible, foreseeable and compatible with the rule of

law. A law which confers a discretion on the authorities must

indicate the scope of that discretion. The degree of precision

required will depend on the particular subject-matter (cf. Eur. Court

H.R., Huvig judgment of 24 April 1990, Series A no. 176, paras. 26,

28-29).

In the present case, the Commission observes that the decision

to declare the area in question a tenement assignment area was made

pursuant to Sections 1 and 2 of the Tenement Assignment Act. It thus

has a basis in Swedish law. The Commission further observes that the

decision was reviewed and essentially upheld by the County

Administrative Board and the Government.

The applicants contend that the law gives such a wide

discretion to the local authority that it does not have the quality of

a law.

The Commission notes that the Tenement Assignment Act confers

a wide discretion on the competent authority. However, Article 1 of

Protocol No. 1 (P1-1) does not require a law which provides a solution

to every specific problem in the area concerned. In interpreting and

applying the law the relevant preparatory work provides guidance as to

the exercise of the discretion. Moreover, a decision to declare an

area a tenement assignment area is subject to appeal to the County

Administrative Board and the Government. This right of appeal

provides a safeguard for those affected by the decision. In the

circumstances, and having regard in particular to the contents of the

County Administrative Board's decision, the Commission is satisfied

that the interference was lawful.

The Commission further considers that the aim of the Tenement

Assignment Act, to supply housing and to counteract segregation, are

legitimate aims in the "general interest". Having regard to the

reasons given by the County Administrative Board, the Commision finds

no evidence to suggest that the decision in the present case was made

for any other purpose. Consequently, the Commission is satisfied that

the decision was taken in accordance with "the general interest".

As to the proportionality of the interference, the Commission

observes that the Act is not applicable to a flat which constitutes

part of the house owner's own dwelling and, in the present case, the

authorities have restricted the application of the Act to houses

which have six flats or more. Moreover, the decision to apply the

Tenement Assignment Act aimed at counteracting segregation in

Södertälje which has a high number of immigrants. The Commission

further observes that the decision to declare the area a tenement

assignment area obliged the applicants to inform the local authority

of any vacant flat they wished to lease and the conditions of the

lease, and that they could not lease the flat to anyone else than a

person assigned by the local authority or to the local authority

itself. The landlord may, under the Act, refuse the tenant proposed

by the local authority but he cannot refuse to let it to the local

authority. If the local authority rents the flat, it can sub-let it

to anybody. However, the Tenement Assignment Act does not involve a

compulsion for the landlord to make a vacant flat available for rent.

The Commission considers that although the interference at

issue involves a substantial hindrance in the applicants' freedom to

choose their tenants it is nevertheless not an interference which can

be regarded as affecting the very essence of the applicants' property

right.

It further notes that the first applicant acquired his

properties only after the County Administrative Board had decided on

the first appeal but before the Government had made the final

decision. The Commission considers that this applicant must have been

aware of the situation when he bought the properties and cannot have

had any reasonable expectation that the properties he had acquired

would eventually be free from the interference resulting in the

decision declaring the area a tenement assignment area.

The Commission also notes that the different interests

involved have been assessed and weighed by the competent authorities.

It considers in view of the margin of appreciation afforded to the

domestic legislator and authorities, and the general interest at

issue, that the interference was not disproportionate to the aim

pursued.

Consequently, the interference was justified under the terms

of the second paragraph of Article 1 of Protocol No. 1 (P1-1).

It follows that this complaint is manifestly ill-founded

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

3. The applicants also allege a violation of Article 14 (Art. 14)

of the Convention, which reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth

or other status."

According to the case-law of the Convention organs, Article 14

(Art. 14) of the Convention has no independent existence, but plays an

important role by supplementing the other provisions of the Convention

and the Protocols. Article 14 (Art. 14) safeguards individuals,

placed in similar situations, from discrimination in the enjoyment of

the rights set forth in those other provisions. A measure which as

such could be in conformity with the normative provision may therefore

nevertheless violate that provision taken in conjunction with Article

14 (Art. 14), if it is applied in a discriminatory manner. It is as

if Article 14 (Art. 14) formed an integral part of each of the

provisions laying down the specific rights and freedoms. The

Convention organs have furthermore constantly held that a distinction

is discriminatory if it "has no objective and reasonable

justification", that is, if it does not pursue a "legitimate aim" or

if there is not a "reasonable relationship of proportionality between

the means employed and the aim sought to be realised" (Eur. Court

H.R., Inze judgment of 28 October 1987, Series A no. 126, p. 17, para.

36 and p. 18, para. 41).

The discriminatory treatment alleged by the applicant is the

difference between them and other property owners in the Södertälje

area, or in other areas in Sweden where the Tenement Assignment Act is

not applied.

The Government submit that there is no violation of Article 14

(Art. 14) of the Convention.

The Commission has examined whether there has been

discrimination contrary to Article 14 (Art. 14) of the Convention in the

applicants' enjoyment of their right under Article 1 of Protocol No. 1

(P1-1) to the Convention.

It assumes for the purpose of Article 14 (Art. 14) that the

applicants can be said to be in a similar situation as compared to the

other property owners referred to. As to the justification for the

distinction made, the Commission accepts that there were objective

reasons for excluding those areas in which the municipality already

had a direct or indirect control over the use of flats. The

Commission further finds that the difference in practice between

Södertälje and other areas in Sweden was a result of the different

situation obtaining in Södertälje, notably the great number of

immigrants and the impossibility to find other solutions to combat

segregation. Having regard to the margin of appreciation enjoyed by

the domestic authorities and to the subject-matter, the Commission

finds no appearance of discrimination contrary to Article 14 of the

Convention in conjunction with Article 1 of Protocol No. 1

(Art. 14+P1-1) to the Convention.

It follows that this complaint is also manifestly ill-founded

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

4. Finally, the Commission finds no appearance of a violation of

Articles 17 and 18 (Art. 17, 18) of the Convention which have also

been invoked by the applicants.

It follows that in this respect 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,

unanimously,

DECLARES ADMISSIBLE, without prejudging the

merits of the case, the complaint of absence of a court

determination (Article 6 para. 1 (Art. 6-1) of the Convention) ;

by a majority,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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LINDEN ; KONSUMENTFINANS KARLSSON & LINDEN AB v. SWEDEN

LINDEN ; KONSUMENTFINANS KARLSSON & LINDEN AB v. SWEDEN

LEXI