CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1990

.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. 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)