DISSENTING OPINION OF JUDGES PETTITI AND VALTICOS

(Translation)

Contrary to the view taken by the majority, we do not think that it is possible to find a violation of Article 6 para. 1 (art. 6-1) of the Convention in this case. Clearly it is a borderline case in terms of conformity with the Convention, but one in which too inflexible a position might fail to take account of the needs of the judiciary arising from its dual role of seeking after justice and at the same time maintaining social harmony.

Article 6 para. 1 (art. 6-1) requires "an independent and impartial tribunal".

The present case concerns organs composed partly of professional judges and partly of lay assessors nominated by the Swedish Federation of Property Owners and the National Tenants ’ Union . These lay assessors must, it is stressed, sit in a personal capacity and not as representatives of the organisations which nominated them.

The participation in a judicial body of persons nominated by the interested parties is nowadays fairly common in various fields which require specialised knowledge and experience. Apart from the necessary expertise, this participation is aimed at gaining the confidence of groups whose interests are opposed and at securing a fair and balanced settlement of the disputes arising between them. This approach is particularly relevant to industrial and social conflicts.

Of course under Article 6 para. 1 (art. 6-1) independence and impartiality are required; it is therefore essential that the court in which the persons nominated by the interested parties participate should also include members satisfying this condition and having a decisive vote. That is exactly what happened in the present case. The rent review boards are composed of a chairman (a judge) and two lay assessors and the Housing and Tenancy Court, a court in the strict sense, whose composition varies, always has judges among its members - including the president, who has a casting vote. In this case, the court was composed of four members, two judges and two lay assessors. Moreover, the latter are not appointed for a specific case, do not know in advance to which files they will be assigned and take a judicial oath. In any event, in this case no decision could be taken which went against the views of the professional judges - even supposing that there was agreement between the lay assessors.

In these circumstances, it cannot be found that there was ultimately a failure to comply with the requirements of independence and impartiality and, accordingly, a violation of Article 6 para. 1 (art. 6-1). The opposing view, as well as being unjustified, would run the risk of entailing serious consequences and giving rise to disputes concerning various courts composed partly of members appointed from the relevant technical or professional fields, where an individual chooses to contest the system. Such an approach would scarcely be realistic.

CONCURRING OPINION OF JUDGE MARTENS

1.   Although I share the opinion of the Court that in this case there has been a violation of Article 6 para. 1 (art. 6-1), I cannot subscribe to its reasoning.

2.   In the first place I fail to see why "it appears difficult to dissociate the question of impartiality from that of independence" (see paragraph 32 of the Court ’ s judgment). I think, for various reasons, that the Court should not have dealt with the independence issue at all. One reason is that, before the Court, Mr Langborger has not attacked or tried to refute the Commission ’ s finding that there was no reason to doubt the independence of the Housing and Tenancy Court vis-à-vis the executive and the parties (see paragraphs 128 and 133 of the Commission ’ s report). For a Court which is already overburdened, that should, in my opinion, have been decisive.

3.   Consequently I will confine myself to the question of impartiality under the objective test.

Application of that test involves a double task. Firstly, it has to be ascertained whether Mr Langborger had legitimate reasons to fear that the chamber of the Housing and Tenancy Court which tried his case lacked impartiality as a consequence of the presence in that chamber of the two lay assessors. Secondly, it has to be assessed whether these fears can be held objectively justified (see the Hauschildt judgment of 24 May 1989 , para. 48). This assessment will frequently include a weighing of interests. This is because what is at stake is often not only the confidence which the courts in a democratic society must inspire in the parties, but also the interest in having a judicial organisation that is rational and operates smoothly.

4.   When applying the objective test, the Court found that Mr Langborger could legitimately fear that the lay assessors had a common interest contrary to his own and therefore that the balance of interests, inherent in the Housing and Tenancy Court ’ s composition in other cases, was liable to be upset when it came to decide his own claim (see paragraph 35 of the Court ’ s judgment).

My objection to this approach is that it seems to imply that the Court assumes that "in other cases" there is a "balance of interests". The Court appears to base its reasoning on the assumption that it is an essential feature of the Housing and Tenancy Court ’ s composition that the lay assessors are there to defend the interests of the landlord or the tenant, respectively, with the result that they will almost always take different sides - one endorsing the case of the landlord and the other that of the tenant - and will thus create a "balance of interests". If this assumption were correct, then the lay assessors could hardly be considered impartial at all! There is, however, no factual basis for the assumption: as the Swedish Supreme Court has pointed out, the lay assessors should not feel bound by the interests which they can be said to represent; they should carry out their duties as independent judges and not as representatives of party interests (see paragraph 24 of the European Court ’ s judgment). There is nothing in the file from which it could be inferred that the lay assessors do not act accordingly.

5.   In my view, there are better arguments for finding, under the objective test, that the chamber of the Housing and Tenancy Court lacked the necessary impartiality in the sense of Article 6 (art. 6) of the Convention.

6.   As the Court has noted (see paragraph 33 of its judgment), the proceedings instituted by Mr Langborger were aimed essentially at release from the negotiation clause. He thus relied on section 2 of the 1978 Act (see paragraph 16 of the Court ’ s judgment), under which an exemption can be granted from the compulsory system of collective bargaining on rents and other tenancy conditions.

Under section 2 of the 1978 Act, those who seek exemption have to satisfy the Housing and Tenancy Court that in the special circumstances of their case it would be unreasonable to have the negotiation clause inserted in their tenancy agreement. When applying this provision, that court must, inter alia, weigh the interest in adopting a rational approach to rent negotiations against the fundamental need for the greatest possible contractual freedom for the individual (see the travaux préparatoires and paragraph 16 of the European Court ’ s judgment). Both the wording and the drafting history of section 2 of the 1978 Act make it clear that the Swedish legislature intended that exemption from the compulsory system of collective bargaining should be granted only exceptionally: the test it laid down in section 2 is a narrow one and, moreover, leaves considerable discretion to the Housing and Tenancy Court.

It is therefore quite understandable that those who invoke section 2 - especially if (like Mr Langborger) they do so not so much for objective reasons but mainly because they simply cannot accept their not being free to negotiate their own rent - will resent the fact that the weighing of their interests against those of the system is entrusted to a court some of whose members may be feared to be deeply convinced of the system ’ s benefits and, consequently, to be likely to hold that its interests weigh very heavily indeed. This is all the more so because those members form the majority if the court sits with seven members, and at least an important minority if it sits with four.

7.   From this analysis of section 2 of the 1978 Act I conclude that Mr Langborger had legitimate reasons to fear that the chamber of the Housing and Tenancy Court which tried his claim for exemption from the compulsory system of collective bargaining lacked impartiality as a consequence of the presence in that chamber of the two lay assessors.

As to whether those fears can be said to be objectively justified, I would recall that in this context even appearances have a certain importance: the very fact that section 2 makes it rather difficult to obtain exemption renders it essential to exclude any doubt as to the fairness of its application.

In this context I further note that there seems to be no good reason for not having cases under section 2 tried by a special chamber of the Housing and Tenancy Court, composed entirely, or having a strong majority, of professional judges.

Taking these factors also into account, I come to the conclusion that one can consider objectively justified Mr Langborger ’ s fears that, as a consequence of the presence of the two lay assessors, the chamber of the Housing and Tenancy Court that tried his claim for exemption under section 2 of the 1978 Act lacked the necessary impartiality. The fact that this particular chamber also included two professional judges, whose impartiality is not in question and who, as a consequence of the President ’ s having the casting vote, could form a majority, does not change this view.

Like the Court, I therefore conclude that there has been a violation of Article 6 para. 1 (art. 6-1).

[*]  Note by the registry: The case is numbered 20/1987/143/197.  The second figure indicates the year in which the case was referred to the Court and the first figure indicates its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.