Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13347/87

by J. and E.H.

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 20 October 1987

by J. and E.H. against Sweden and registered on 26 October 1987 under

file No. 13347/87;

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

28 November 1989 and the applicants' written observations of

2 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 applicants are J. and E.H., born in 1945 and 1948

respectively and resident in Stockholm. Mr. H. is a practising lawyer

and Mrs. H. is a secretary.

The applicants have rented a four-roomed flat at Spånga since

1979. The landlord is Aktiebolaget Svenska Bostäder, a limited

liability company, which is a public utility housing company, i.e. 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 to the Federation of Public Utility

Housing Companies (Sveriges allmännyttiga bostadsföretag, SABO). The

tenancy agreement contains a negotiation clause (förhandlingsklausul)

to the effect that the tenant undertakes, without prior termination of

the agreement, to accept what has been agreed upon or will be agreed

upon between the company (the landlord) and the Tenants' Union under

the applicable negotiation agreement, notably the level of the rent and

other rent conditions. In accordance with this agreement, the landlord

and the Tenants' Union regularly review the rent for the flats in the

house in which the applicants live. As compensation for its work in

conducting the negotiations, the Tenants' Union receives 0,3% of the

rent from the landlord.

In 1979 the landlord and the Tenants' Union of the area of

Metropolitan Stockholm (hyresgästföreningen i Stor-Stockholm) made an

agreement concerning leisure facilities and one concerning consultation

with tenants (boendeinflytande). These agreements have been replaced

by new agreements applicable as from 1 July 1986. According to the

agreements, the Tenants' Union receives from the company for its

activities an amount corresponding to altogether O.9% of the rent paid

during the year for flats covered by the agreements.

The applicants gave notice to terminate the tenancy agreement

for the purpose of changing the conditions of the agreement in accordance

with Chapter 12 Section 54 of the Land Act (jordabalken) as from

1 October 1983. The dispute was subsequently referred to the Rent Board

(hyresnämnden) of the Stockholm County. The applicants claimed that the

negotiation clause should be removed from the contract and that the rent

should be reduced as from 1 October 1983 by altogether 1.05%. The

applicants challenged the lay assessors of the Rent Board. The challenge

was rejected by the Board on 15 November 1983. On 19 March 1984 the

Rent Board delivered its decision rejecting the applicants' claims.

The applicants appealed to the House and Tenancy Court

(bostadsdomstolen). The applicants challenged the lay assessors of the

Court, a challenge which was rejected by the Court on 16 February 1987.

By judgment of 30 April 1987 the House and Tenancy Court

rejected the applicants' claims. The Court was composed of seven judges,

of whom three were professional judges and four were lay assessors. One

of the professional judges dissented. The four lay assessors were

Mr. B. Claesson, who was Managing Director of Aktiebolaget Stockholmshem,

a public utility housing company affiliated to SABO, Mrs. M. Andréasson

Frohnert, who was Head of Division at SABO, Mrs. S. Johansson, who was

employed by the National Tenants' Union, and Mrs. E. Kaplan, who was

employed by the Tenants' Union of Metropolitan Stockholm.

COMPLAINTS

The applicants originally alleged violations of Article 6

para. 1, Articles 8, 11 and 14 of the Convention, as well as Article 1

of Protocol No. 1 to the Convention. They subsequently withdrew their

complaints under Articles 8 and 11 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 October 1987 and registered

on 26 October 1987.

On 4 September 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

limited to the issue under Article 6 para. 1 of the Convention.

The Government's observations were received by letter dated

28 November 1989 and the applicants' observations were dated 2 January 1990.

THE LAW

1. The applicants allege 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 independent and

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 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 applicants originally complained of violations of Articles 8

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

judgment in the Langborger case (Eur. Court H.R., Langborger judgment

of 22 June 1989, Series A no. 155), they have withdrawn these

complaints. The Commission finds no reason to examine these

complaints.

3. The applicants also complain that there has been a violation of

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

that they have to make financial contributions to the Tenants' Union.

Unable to establish the exact amount, the applicants estimate that

they have paid 10,000 SEK to the Union during the period 1979 to 1988.

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. Rep., 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 concerned - 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 applicants allege a violation of Article 14

(Art. 14) of the Convention which prohibits discrimination in the

enjoyment of the rights and freedoms set forth in the Convention.

However, the Commission finds no indication of a violation of Article

14 (Art. 14) of the Convention. It follows that this aspect 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

DECLARES ADMISSIBLE, without prejudging the merits, the

complaint that the applicants' 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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M. ; E.M. v. SWEDEN

M. ; E.M. v. SWEDEN

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