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AS TO THE ADMISSIBILITY OF

Application No. 11661/85

by Stiftelsen Akademiska föreningens bostäder i Lund

against Sweden

The European Commission of Human Rights sitting in private

on 6 July 1987 the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C. L. ROZAKIS

Mrs. J. LIDDY

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 2 January 1985

by Stiftelsen Akademiska föreningens bostäder i Lund against Sweden

and registered on 29 July 1985 under file N° 11661/85;

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

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they appear from the applicant's

submissions, may be summarised as follows.

The applicant is a foundation, Stiftelsen Akademiska

föreningens bostäder i Lund (the Foundation Academic Association's

Dwellings at Lund). The foundation is represented before the

Commission by Mr. Göran Ravnsborg, a university lecturer at the

University of Lund.

The foundation has been created by the Academic Association

at Lund in order to accommodate students with cheap high-standard

dwellings. It owns and administers around 6.000 dwellings.

Since 1 January 1984, Mr. M. L. rented a room from the

applicant foundation. On 30 May 1984 he was given notice that his

contract would terminate at the latest on 30 June 1984. Mr. M.L.

was informed at the same time that he could appeal to the Rent Board

(hyresnämnden) within three weeks if he objected to the notice.

Mr. M.L. did not appeal within the prescribed time-limit. However, he

did not move from the room he rented.

Subsequently, however, Mr. M.L. applied to the Rent Board for

a prolongation of his contract. On 1 August 1984 the Rent Board of

Malmö rejected Mr. M.L.'s application since he had applied to the

Board out of time. Mr. M.L. appealed against this decision to the

House and Tenancy Court (bostadsdomstolen), which on 17 October 1984

rejected the appeal.

The applicant foundation applied to the District Court

(tingsrätten) for assistance (handräckning) to have Mr. M.L. removed.

On 17 August 1984 the District Court of Lund ordered that the

applicant should move at once and, if he did not do so, that he could

be evicted at his own expense.

On the basis of the decision of 17 August 1984 of the District

Court of Lund, the applicant foundation applied for the eviction of

Mr. M.L.. The eviction was scheduled to take place on 31 August 1984.

However, on 30 August 1984, the applicant foundation was informed by

telephone that the Real Estate Court (fastighetsdomstolen) of Malmö,

on 30 August 1984, had ordered that the eviction be stayed, the reason

being that since Mr. M.L.'s appeal was still pending before the House

and Tenancy Court, the question of his right to a prolongation of the

contract had not yet been settled. No appeal lay against this

decision.

COMPLAINTS

1. The applicant foundation complains that the decision of the

Real Estate Court of Malmö was based on irrelevant reasons. It caused

serious trouble for the foundation. The whole corridor in which Mr.

M.L. lived had to be emptied of all other tenants just before the

opening of the autumn term. Mr. M.L. moved out some days before

31 October 1984.

Thus between 31 August and 31 October 1984 the foundation was unable

to exercise its legal rights as real estate owner and landlord. The

applicant foundation alleges that there has been a violation of

Article 1 of Protocol No. 1 to the Convention.

2. The applicant foundation further submits that there has been a

violation of Article 6 of the Convention since the decision of the

Real Estate Court was taken in camera and without any party being

present.

3. Finally, the applicant foundation alleges that there has been

a breach of Article 13 of the Convention since no appeal lay against

the decision of the Real Estate Court and the implications of that

decision.

THE LAW

1. The applicant foundation has complained that the decision of

the Real Estate Court ordering a stay of the eviction of Mr. M.L.

pending the appeal proceedings constitutes a breach of Article 1 of

Protocol No. 1 (P1-1) to the Convention.

Article 1 of Protocol No. 1 reads (P1-1):

"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 with the applicant foundation that the

decision to stay the eviction interfered with the foundation's right

to peaceful enjoyment of its possessions. The nature and purpose of

the interference was to control the use of property and the question

whether or not the interference was justified accordingly falls to

be considered under the terms of the second paragraph of Article 1 of

Protocol No. 1 (P1-1).

The Commission recalls that the decision to stay the eviction

was made since the question whether Mr. M.L. had a right to prolong

his contract was still pending before the House and Tenancy Court.

The Commission considers that it was in "the general interest" within

the meaning of Article 1 of Protocol No. 1 (P1-1) to suspend the eviction of

Mr. M.L. as long as the question of the prolongation of his rent

contract had not been finally determined. Moreover, there is no

indication that the decision of the Real Estate Court was unlawful

under Swedish law.

Accordingly, the Commission finds no appearance of a violation

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.

2. The applicant foundation has also alleged a violation of

Article 6 (Art. 6) of the Convention in that the decision of the Real Estate

Court was taken in camera and without the parties being present.

Article 6 (Art. 6) of the Convention is only applicable "in the

determination of (an individual's) civil rights and obligations or of

any criminal charge against him ...".

Since there is no question of a "criminal charge" in this case

it must be examined whether the decision of the Real Estate Court

was a "determination" of the applicant foundation's "civil rights".

As a rule, enforcement proceedings following a court judgment

do not come within the scope of Article 6 (Art. 6) of the Convention.

Enforcement proceedings presuppose that the dispute relating to civil

rights has previously been determined by the competent court or other

organ.

The issue whether Mr. M.L.'s rent contract should be prolonged

or not could have been determined in proceedings before the Rent

Board and the House and Tenancy Court. The proceedings before the Real

Estate Court related to the enforcement of a decision, i.e. eviction,

of Mr. M.L. but did not themselves determine any civil rights.

It follows that Article 6 (Art. 6) of the Convention was not

applicable to those enforcement proceedings and this complaint must

therefore be rejected under Article 27, para. 2 (Art. 27-2) of the

Convention for being incompatible ratione materiae with the provisions

of the Convention.

3. The applicant foundation has also complained that Article 13

(Art. 13) of the Convention has been violated since there was no

appeal against the decision of the Real Estate Court.

Article 13 (Art. 13) of the Convention reads:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding

that the violation has been committed by persons acting

in an official capacity."

The applicant foundation's claim of a violation of Article 1

of Protocol No. 1 (P1-1) relates to the Real Estate Court's decision ordering

a stay of the eviction. A remedy against such an alleged violation by

a court would require the possibility to appeal against the court's

decision since only a superior court could overrule such a decision.

However, the right to appeal is not as such guaranteed by the

Convention (e.g. Eur. Court H.R., Delcourt judgment of 17 January 1970,

Series A no. 11, p. 14, para. 25) and it follows from this that

Article 13 (Art. 13) cannot be relied upon where the alleged violation lies in

the decision of a court (see No. 11508/85, Dec. 17.7.1986, to be

published in D.R.).

It follows that this complaint is manifestly ill-founded

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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STIFTELSEN AKADEMISKA FORENINGENS BOSTADER I LUND v. SWEDEN

STIFTELSEN AKADEMISKA FORENINGENS BOSTADER I LUND v. SWEDEN

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