CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 octobre 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. 12836/87 by Åke LINDEN and Konsumentfinans Karlsson & Lindén AB against Sweden             The European Commission of Human Rights sitting in private on 1 October 1990, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 MM.   L. LOUCAIDES                      J.C. GEUS                      A.V. ALMEIDA RIBEIRO                      M.P. PELLONPÄÄ                   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 22 August 1986 by Åke LINDEN and Konsumentfinans Karlsson & Lindén AB against Sweden and registered on 3 April 1987 under file No. 12836/87;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to the Government's written observations dated 13 June and 8 November 1989 and the applicants' observations dated 30 August 1989;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows:           The first applicant, Mr. Åke Lindén, is a Swedish citizen, born in 1945 and resident in Södertälje.   He is the joint owner and director of the second applicant, Konsumentfinans Karlsson & Lindén AB, a limited liability company incorporated in Sweden.           Before the Commission the applicants are represented by Mr. Jan Axelsson, a lawyer practising in Stockholm.           The applicants are owners of residential property in Södertälje.           On 21 September 1981, the Municipal Council (kommunfullmäktige) of Södertälje decided as a preliminary measure, pursuant to the provisions of the Tenement Assignment Act (bostadsanvisningslagen), to declare the whole of central and urban Södertälje a tenement assignment area within the meaning of that Act.   For the further implementation of this decision the Tenement Allocation Board (bostadsförmedlingsnämnden) was called upon to make specific recommendations to the Municipal Executive Board (kommunstyrelsen).           Under the provisions of the Act, a Municipal Executive Board is empowered to declare one or several of its residential areas to be tenement assignment areas and to order that the provisions of the Act should apply to all or certain tenement rentals in those areas. Landlords who wish to make vacant flats available for rent are thereby required to report all vacancies to the municipality which may then assign the tenement to a new tenant.   A landlord may refuse to accept the tenant assigned to him, but he is obliged to let the tenement to the municipality if it so requests.   The municipality may in turn sub-let to any person irrespective of any objection on the part of the landlord.   Furthermore, the law on tenancy enables the municipality, with permission from the Rent Board (hyresnämnden), to transfer the tenement to the sub-tenant.           On 2 April 1984 the Municipal Executive Board decided, pursuant to Sections 1 and 2 of the Tenement Assignment Act and upon recommendation of the Tenement Allocation Board, to declare those residential areas which corresponded to four parishes in Södertälje, with the exception of two districts, to be a tenement assignment area. All the tenements in the two exempted districts were owned by a foundation controlled by the municipality.           Section 1 of the Tenement Assignment Act provides:   (translation)   "One or more residential areas of a municipality may be declared a tenement assignment area if it is required for the supply of dwellings within the municipality or within an area of which the municipality forms part, and which can be considered as a unit for the purpose of the supply of dwellings.   Within a tenement assignment area this Act applies to all flats, unless it is a flat which constitutes part of the house owner's own dwelling, or a flat in a one-family house, which is not supposed to be rented permanently, or in a two-family house or it has otherwise been decided that only certain flats in the area should be covered by the Act."   Swedish   "Om det behövs för bostadsförsörjningen inom en kommun eller inom ett område i vilket kommunen ingår och som kan anses utgöra en enhet i bostadsförsörjningshänseende, får ett eller flera bostadsområden i kommunen förklaras vara bostadsanvisningsområde.   Inom bostadsanvisningsområde är denna lag tillämplig på samtliga bostadslägenheter, såvida ej fråga är om lägenhet, som utgör en del av husägarens egen bostad, eller lägenhet i ett enfamiljshus, som inte är avsett att upplåtas varaktigt, eller i ett tvåfamiljshus eller beslutats att i övrigt endast lägenheter av visst slag inom området skall omfattas av lagen."           The second applicant, together with several other property owners, appealed to the County Administrative Board (länsstyrelsen) of the Stockholm County on the grounds, inter alia, that there was already an excess of vacant tenements at the disposal of the municipality and that the decision to create a tenement assignment area had consequently been taken in disregard of the legal conditions contained in the Act.   The first applicant was not a party to this appeal since he did not, at that time, own any property affected by the decision.           In its decision of 27 March 1985 the County Administrative Board stated, inter alia, that the aim of the Act was to enable local authorities to work more actively to achieve a mixed composition of the population in its residential areas and that in this respect they enjoyed a wide margin of discretion in the implementation of local policy.   In particular, it was clear from the travaux préparatoires that it would be an unacceptable restriction on such policy to require as a prerequisite for declaring a tenement assignment area that there exist a general housing shortage or a particular housing problem in respect of certain groups of the population.   Having regard to the situation obtaining in Södertälje, and in particular to the relatively high concentration of immigrants, the Board upheld the decision of the Municipal Executive Board.   It stated inter alia as follows:   "Since several years the municipality of Södertälje has tried through different measures - the municipality has inter alia made use of the assignment right pursuant to the Housing Supply Act (bostadsförsörjningslagen) and the Tenement Finance Ordinance (bostadsfinansieringsförordningen) - to prevent segregation within the housing areas of the municipality.   From the case-file it appears inter alia that within certain areas of the municipality of Södertälje there is a very high concentration of immigrants and that these areas cannot be considered to have a mixed composition of different households.   There exists no agreement between the municipality and the landlords regarding housing assignment that satisfies the needs of the municipality.   In these circumstances the conditions for making a decision of a tenement assignment area under the Tenement Assignment Act must be considered to be fulfilled.   The facts of the case do not disclose sufficient reasons for rejecting the way the assignment area has been delimited."           The Board further decided that houses with less than six flats should be exempted from the decision.   In its final assessment, the Board stated that:   "(The Board) finds that a balance struck between the municipality's and the affected landlords' interests does not disclose that the landlords' interests have been neglected in such a manner that the decision of the Municipal Executive Board should otherwise be quashed or amended."           On 25 February 1986, the first applicant bought a number of residential properties which, as a result of the above decisions, were subject to the provisions of the Tenement Assignment Act.           On 13 March 1986 the Government rejected an appeal against the decision of the County Administrative Board which had been brought, inter alia, by the second applicant.           The Tenement Assignment Act was replaced by the Act on Municipal Tenement Assignment Rights (lagen om kommunal bostadsanvisningsrätt) on 1 January 1988.   COMPLAINTS   1.       The applicants complain under Article 1 of Protocol No. 1 to the Convention that the powers conferred on the municipality by the Tenement Assignment Act, as interpreted by the County Administrative Board, do not satisfy the requirements of accessibility and clarity required by the Convention, and further that the decision to declare a tenement assignment area constitutes an unjustified, arbitrary and disproportionate measure for the control of the use of their property.   2.       The applicants complain further that the decision to exempt only those districts where the municipality was itself the sole landlord of affected tenements constitutes an unjustified and arbitrary discrimination against them as private landlords, contrary to Article 14 of the Convention taken together with Article 1 of Protocol No. 1.   The applicants also complain that the decision discriminates against them as compared with property owners in areas of Sweden where no compulsory allocation of tenements has been introduced.   3.       The applicants further complain that they cannot have the decision, which implied that their properties were made part of a tenement assignment area, examined by a court, contrary to Article 6 para. 1 of the Convention.   4.       The applicants finally complain that the purpose pursued by the Tenement Assignment Act of attaining a well-mixed composition of residents is contrary to Articles 17 and 18 of the Convention, taken together with Article 1 of Protocol No. 1.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 22 August 1986 and registered on 3 April 1987.           On 13 March 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.           The Government's observations were received, after an extension of the time limit, by letter dated 13 June 1989 and the applicants' observations were dated 30 August 1989.   A letter from the Government with further observations was dated 8 November 1989.   THE LAW   1.       The applicants allege a violation of Article 6 para. 1 (Art. 6-1) of the Convention on the ground that they could not have examined by a court the dispute over the decision to declare the area in which their houses are situated a tenement assignment area. Article 6 para. 1, (Art. 6-1) first sentence reads as follows:   "In the determination of his civil rights and obligations or of any criminal charge against him, 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 issues to be decided are whether the decision to declare the area in question a tenement assignment area was decisive for the applicants' "civil rights and obligations" and, if so, whether a genuine dispute of a serious nature arose between the applicants and the authorities in relation to that decision.   In the affirmative, it would have to be determined whether the applicants had at their disposal a procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) in regard to that dispute.           The Government do not object to this complaint being declared admissible and admit that there has been a violation of Article 6 para. 1 (Art. 6-1).           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 complain that the decision to declare the area in which their properties are situated a tenemant assignment area is a violation of their right to property.   They invoke Article 1 of Protocol No. 1 (P1-1) to the Convention which provides:   "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, and this is not in dispute between the parties, that there has been an interference with the applicants' right to the peaceful enjoyment of their possessions as a result of the contested decision.   It is common ground that the interference constituted a measure "to control the use of property" and that consequently the interference is to be examined under the second paragraph of Article 1 (Art. 1-2).           The applicants submit that the interference was not lawful, that it did not serve the general interest and that it was not proportionate to its aim.   The Government, on the other hand, submit that the interference had a legitimate aim, that the decision was taken in accordance with Swedish law and that the effects for the applicants were proportionate to the aim sought.           Under the second paragraph of Article 1 of Protocol No. 1 (P1-1) the Commission must examine the lawfulness, purpose and proportionality of the interference (cf. Eur. Court H.R., Tre Traktörer AB judgment of 7 July 1989, Series A no. 159, pp. 22-24, paras. 55-62).           The Convention organs' power to review compliance with domestic law is limited.   It is in the first place for the national authorities to interpret and apply that law.   The requirement of lawfulness includes that the impugned measure should have some basis in domestic law.   Furthermore, the law must have a certain quality, i.e. it must be accessible, foreseeable and compatible with the rule of law.   A law which confers a discretion on the authorities must indicate the scope of that discretion.   The degree of precision required will depend on the particular subject-matter (cf. Eur. Court H.R., Huvig judgment of 24 April 1990, Series A no. 176, paras. 26, 28-29).           In the present case, the Commission observes that the decision to declare the area in question a tenement assignment area was made pursuant to Sections 1 and 2 of the Tenement Assignment Act.   It thus has a basis in Swedish law.   The Commission further observes that the decision was reviewed and essentially upheld by the County Administrative Board and the Government.           The applicants contend that the law gives such a wide discretion to the local authority that it does not have the quality of a law.           The Commission notes that the Tenement Assignment Act confers a wide discretion on the competent authority.   However, Article 1 of Protocol No. 1 (P1-1) does not require a law which provides a solution to every specific problem in the area concerned.   In interpreting and applying the law the relevant preparatory work provides guidance as to the exercise of the discretion.   Moreover, a decision to declare an area a tenement assignment area is subject to appeal to the County Administrative Board and the Government.   This right of appeal provides a safeguard for those affected by the decision.   In the circumstances, and having regard in particular to the contents of the County Administrative Board's decision, the Commission is satisfied that the interference was lawful.           The Commission further considers that the aim of the Tenement Assignment Act, to supply housing and to counteract segregation, are legitimate aims in the "general interest".   Having regard to the reasons given by the County Administrative Board, the Commision finds no evidence to suggest that the decision in the present case was made for any other purpose.   Consequently, the Commission is satisfied that the decision was taken in accordance with "the general interest".           As to the proportionality of the interference, the Commission observes that the Act is not applicable to a flat which constitutes part of the house owner's own dwelling and, in the present case, the authorities have restricted the application of the Act to houses which have six flats or more.   Moreover, the decision to apply the Tenement Assignment Act aimed at counteracting segregation in Södertälje which has a high number of immigrants.   The Commission further observes that the decision to declare the area a tenement assignment area obliged the applicants to inform the local authority of any vacant flat they wished to lease and the conditions of the lease, and that they could not lease the flat to anyone else than a person assigned by the local authority or to the local authority itself.   The landlord may, under the Act, refuse the tenant proposed by the local authority but he cannot refuse to let it to the local authority.   If the local authority rents the flat, it can sub-let it to anybody.   However, the Tenement Assignment Act does not involve a compulsion for the landlord to make a vacant flat available for rent.           The Commission considers that although the interference at issue involves a substantial hindrance in the applicants' freedom to choose their tenants it is nevertheless not an interference which can be regarded as affecting the very essence of the applicants' property right.           It further notes that the first applicant acquired his properties only after the County Administrative Board had decided on the first appeal but before the Government had made the final decision.   The Commission considers that this applicant must have been aware of the situation when he bought the properties and cannot have had any reasonable expectation that the properties he had acquired would eventually be free from the interference resulting in the decision declaring the area a tenement assignment area.           The Commission also notes that the different interests involved have been assessed and weighed by the competent authorities. It considers in view of the margin of appreciation afforded to the domestic legislator and authorities, and the general interest at issue, that the interference was not disproportionate to the aim pursued.           Consequently, the interference was justified under the terms of the second paragraph 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.   3.       The applicants also allege a violation of Article 14 (Art. 14) of the Convention, which 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 plays an important role by supplementing 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 them and other property owners in the Södertälje area, or in other areas in Sweden where the Tenement Assignment Act is not applied.           The Government submit that there is no violation of Article 14 (Art. 14) of the Convention.           The Commission has examined whether there has been discrimination contrary to Article 14 (Art. 14) of the Convention in the applicants' enjoyment of their right under Article 1 of Protocol No. 1 (P1-1) to the Convention.           It assumes for the purpose of Article 14 (Art. 14) that the applicants can be said to be in a similar situation as compared to the other property owners referred to.   As to the justification for the distinction made, the Commission accepts that there were objective reasons for excluding those areas in which the municipality already had a direct or indirect control over the use of flats.   The Commission further finds that the difference in practice between Södertälje and other areas in Sweden was a result of the different situation obtaining in Södertälje, notably the great number of immigrants and the impossibility to find other solutions to combat segregation. Having regard to the margin of appreciation enjoyed by the domestic authorities and to the subject-matter, the Commission finds no appearance of discrimination contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1) to 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.   4.       Finally, the Commission finds no appearance of a violation of Articles 17 and 18 (Art. 17, 18) of the Convention which have also been invoked by the applicants.           It follows that in this respect 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,           unanimously,         DECLARES ADMISSIBLE, without prejudging the         merits of the case, the complaint of absence of a court         determination (Article 6 para. 1 (Art. 6-1) of the Convention) ;           by a majority,         DECLARES INADMISSIBLE the remainder of the application.     Secretary to the Commission                  President of the Commission           (H.C. KRÜGER)                                  (C.A. NØRGAARD)