CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 juillet 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    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)