Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11914/86

by Charles CUNNINGHAM

against Sweden

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 8 August 1983

by Charles CUNNINGHAM against Sweden and registered on 3 January 1986

under file No. 11914/86;

Having regard to the reports provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the Government's written observations of

23 November 1989 and the applicant's written observations of

15 January 1990;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they appear from the parties'

submissions, may be summarised as follows.

The applicant is a national of the United States of America,

born in 1930 and resident at Johanneshov, Stockholm. Before the

Commission he is represented by Mr. Jan Humlekil, a lawyer practising

in Stockholm.

The applicant has rented a two-roomed flat at Johanneshov since

1 August 1980. The landlord is Aktiebolaget Svenska Bostäder, a limited

liability company. It is a company which is at least partly publicly

owned and the aim of which is to provide housing without giving profit

to its owners. Aktiebolaget Svenska Bostäder is connected with the

Federation of Public Utility Housing Companies (Sveriges allmännyttiga

bostadsföretag, "SABO").

The tenancy agreement between the applicant and the landlord

contains a negotiation clause (förhandlingsklausul), which is worded

as follows:

"The landlord and the tenant undertake, without notice of

termination of the tenancy agreement having been given, to

observe those rules governing the rent or other rent

conditions, the state of the flats and the building, joint

facilities within the building and other housing conditions of

common interest to the tenants concerned, which have been

agreed or may be agreed according to the agreement in force on

the system of negotiations (förhandlingsordning) between a

landlord and a tenants' organisation affiliated to the

National Tenants' Union (Hyresgästernas Riksförbund)".

Such an agreement, a negotiation agreement, is in force between

the landlord and a tenants' union, the Tenants' Union of Metropolitan

Stockholm (hyresgästföreningen i Stor-Stockholm). In accordance with

this agreement, the landlord and the Tenants' Union regularly review

the rent for the flats in the house in which the applicant lives. As

compensation for its work in conducting the negotiations, the Tenants'

Union receives 0.3% of the rent from the landlord.

In April 1979 joint recommendations were adopted by SABO and

the National Tenants' Union concerning leisure activities and

consultation with tenants (boendeinflytande). The landlord company and

the Tenants' Union have concluded one agreement concerning leisure

facilities and one concerning consultation with tenants.

Under the agreement on the consultation with tenants the

Tenants' Union is entitled to compensation for the functions which it

has under the agreement. The compensation shall correspond to 0.4% of

the rents (including heating costs) in all the flats covered by the

agreement. The compensation is included in the rents agreed through

the rent negotiations. Under the agreement on leisure facilities the

Tenants' Union is to receive 0.5% of the annual rents of the flats in

the properties covered by these facilities. The compensation is added

to the rent calculations concerning the landlords' costs or the rents

agreed upon.

The applicant gave notice to terminate his tenancy agreement

for the purpose of changing the conditions of the agreement in

accordance with Chapter 12, Sections 54 and 55 of the Land Act

(jordabalken). He subsequently referred the dispute to the Rent Board

(hyresnämnden) of Stockholm County, where he claimed inter alia that

his rent be reduced by 1.2%, which amount was paid by the landlord to

the Tenants' Union, and that the negotiation clause be removed from his

tenancy agreement. The applicant also challenged the two lay assessors

of the Rent Board.

The challenge was rejected by the President of the Rent Board

on 22 February 1984. On 7 March 1984 the Rent Board delivered its

decision rejecting the applicant's claims.

The applicant appealed to the House and Tenancy Court

(bostadsdomstolen). The applicant argued that he was forced to accept

the negotiation clause, since the landlord did not accept a tenancy

agreement which did not include that clause. He also stated that his

sight was reduced and that for that reason he was not able to read the

text in the lease. Furthermore, the negotiation clause involved an

approval in blanco of future and, thus, to the applicant unforeseeable

circumstances. This disproportion, in his view, had systematically

been exploited by the landlord and the Tenants' Union. The activities

concerning development of tenants' leisure facilities and arrangements

for consultation with tenants, to which he had to contribute by virtue

of the negotiation clause, could be criticised in several respects.

Among other things, the tenants who, like the applicant, were not

members of the Tenants' Union, had no influence on these activities.

On these grounds, he should be entitled to a reduction of the rent,

corresponding to the 0.9% that was paid for these activities. The

Tenants' Union also conducted the rent negotiations poorly. The

applicant therefore was entitled to a rent reduction corresponding to

the amount paid for rent negotiations, 0.3%.

On 9 July 1985 the House and Tenancy Court rejected the

appeal. One of the professional judges dissented. He considered that

the agreements relating to the protection of tenants and the agreement

on leisure facilities discriminated against the applicant in that he

was not a member of the Tenants' Union. The Court was composed of seven

judges, of which three were professional judges and four were lay

assessors. The four lay assessors were Mr. E. Olsson, Managing Director

of SABO, Mrs. M. Andréasson-Frohnert, Head of Division at SABO,

Mrs. S. Johansson, Ombudsman at the National Tenants' Union, and

Mr. S. Gustafsson, Member of Parliament for the Social Democrats.

COMPLAINTS

1. The applicant complains that as a result of the participation

of the lay assessors his case before the Rent Board and the House and

Tenancy Court has not been determined by an independent and impartial

tribunal. Consequently he alleges a violation of Article 6 of the

Convention.

2. The applicant moreover alleges a violation of Article 1 of

Protocol No. 1 to the Convention and claims to be the victim of

discrimination contrary to Article 14 of the Convention in conjunction

with Article 1 of Protocol No. 1 based on his status of not being a

member of the Tenants' Union.

3. Originally the applicant also alleged violations of Articles 8

and 11 of the Convention. These complaints were subsequently withdrawn.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 August 1983 and registered

on 3 January 1986.

On 9 November 1987 the Commission decided to communicate the

application to the respondent Government without asking for written

observations pending the outcome of the Langborger case.

On 22 June 1989 the European Court of Human Rights delivered

judgment in the Langborger case (Series A no. 155).

On 6 September 1989 the Commission decided to invite the

Government to submit written observations on the admissibility and

merits of the application limited to the issues under Article 6 of the

Convention.

The Government's observations were received by letter dated

23 November 1989 and the applicant's observations were dated

15 January 1990.

THE LAW

1. The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention on the ground that the Rent Board and the

House and Tenancy Court cannot be regarded as impartial tribunals.

Article 6 para. 1 (Art. 6-1), first sentence reads as follows:

"In the determination of his civil rights and obligations ...,

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 issue which arises is whether,

in the circumstances of the case, the House and Tenancy Court satisfied

the conditions of being an "independent and impartial tribunal" within

the meaning of Article 6 para. 1 (Art. 6-1).

The Government waive objections against the admissibility of

this complaint and admit that there has been a violation of Article 6

para. 1 (Art. 6-1) in this respect.

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 applicant originally complained of violations of Articles 8

(Art. 8) and 11 (Art. 11) of the Convention. However, in the light of the

judgment in the Langborger case, he has withdrawn these complaints.

The Commission finds no reason to examine these complaints.

3. The applicant also complains that there has been a violation of

Article 1 of Protocol No. 1 (P1-1) to the Convention on the ground

that he has to make financial contributions to the Tenants' Union.

Unable to establish the exact amount, the applicant estimates that he

has paid 10,000 SEK to the Union during the period 1979 to 1989.

Article 1 of Protocol No. 1 (P1-1) 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."

The Commission recalls that a similar complaint was made in the

Langborger case. In that case the Commission observed (Langborger v.

Sweden, Comm. Report 8.10.87, paras. 158-159, Eur. Court H.R., Series A

no. 155, p. 36) that the applicant had freely entered into the tenancy

agreement according to which the future rent was fixed after negotiations

between the Tenants' Union and the landlords' union. The Commission

considered that in view of the low percentage and amount involved - 0.3%

of the rent in that case - the applicant had failed to substantiate an

interference with his right under Article 1 of Protocol No. 1 (P1-1). This

view was confirmed by the Court (see above-mentioned Langborger judgment,

p. 17, para. 41).

The Commission considers that similar considerations apply in

the present case. Although the amount involved is higher in this case,

the Commission finds no indication of a violation of Article 1 of

Protocol No. 1 (P1-1).

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.

4. Finally, the applicant alleges a violation of Article 14

(Art. 14) of the Convention in conjunction with Article 1 of Protocol

No. 1 (P1-1).

Article 14 (Art. 14) 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

supplements 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 members and non-members of the Tenants' Union with

regard to the organisation of the activities based on the agreements on

leisure facilities and consultation with tenants. The applicant submits

that in practice the Tenants' Union has organised the activities in

such a way that they are controlled by members of the Tenants' Union.

From the accounts given by the Tenants' Union, it appears, according to

the applicant, that only 3.80 SEK per household is in fact allocated by

the Tenants' Union to activities regarding leisure facilities and for

the consultation with tenants. The applicant points out that in fact

no such activity whatsoever has been organised in his area.

The Commission considers that the applicant's arguments mainly

relate to the issue under Article 1 of Protocol No. 1 (P1-1) and,

insofar as they are relevant to the issue under Article 14 (Art. 14) of the

Convention, they suggest, as no activities have been organised, that

the applicant has not in a significant way been treated differently

from other tenants in his area, be they members or not of the Tenants'

Union. In all circumstances, the Commission finds no indication of a

violation of Article 14 (Art. 14) of 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.

For these reasons, the Commission

DECLARES ADMISSIBLE, without prejudging the merits, the

complaint that the applicant's case was not determined by an

"independent and impartial tribunal" (Article 6 para. 1 (Art. 6-1)

of the Convention);

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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CUNNINGHAM v. SWEDEN

CUNNINGHAM v. SWEDEN

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