CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1991

.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. 14654/89                       by Per HEDÉN                       against Sweden             The European Commission of Human Rights sitting in private on 6 September 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 25 February 1988 by Per HEDÉN against Sweden and registered 16 February 1989 under file No. 14654/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Swedish citizen born in 1941 and resident at Gothenburg.   He receives early retirement pension.           The facts of the case, as submitted by the applicant, may be summarised as follows.           In 1987 the applicant requested his landlord to repair or change the refrigerator installed by the landlord.   Following the landlord's refusal the applicant deducted the costs of the repair from his rent and deposited the same amount at the County Administrative Board (länsstyrelsen) of Gothenburg and Bohus County.           In September 1987 the applicant's landlord brought an action for debt recovery (lagsökning) before the District Court (tingsrätten) of Gothenburg, claiming a rent debt in the amount of 3,000 SEK which had fallen due for payment.   He further requested that the applicant immediately be evicted from the apartment.           Following a written exchange of views between the parties the District Court on 12 January 1988 ordered the applicant to pay the debt and immediately leave the apartment.           By way of a petition which arrived at the District Court on 18 January 1988 the applicant requested the proceedings to be resumed (begäran om återvinning) and the execution of the decision of 12 January 1988 to be stayed.           On 20 January 1988 a request by the landlord that the applicant be evicted and that execution be levied on his property arrived at the Enforcement Office (kronofogdemyndigheten) of Gothenburg.           On the same day the District Court opened a file for the proceedings to be resumed.           On 8 February 1988 the District Court summoned the parties to an oral preparation of the case on 8 March 1988.           On 11 February 1988 the applicant was notified of the eviction which was to take place on 23 February 1988.   The notice was served upon the applicant by the Enforcement Office in a closed envelope which was put in his letter-box.           On 23 February 1988 the applicant was evicted from his apartment.           On 8 March 1988 the District Court, at the parties' request, decided to strike the case off its list, the applicant having inter alia agreed to pay a certain amount of money to the plaintiff. The applicant was represented by lawyer.           Subsequently, the applicant, no longer legally represented, appealed against this decision to the Court of Appeal of Western Sweden (hovrätten för västra Sverige).   The appeal was rejected as being out of time.           The eviction order of 23 February 1988 was upheld on 11 May 1988 by the Court of Appeal to which the applicant had appealed.   On 26 August 1988 the Supreme Court (Högsta domstolen) refused leave to appeal.         The applicant subsequently reported the District Court to the Parliamentary Ombudsman (justitieombudsmannen) for the fact that the Court had not notified the Enforcement Office in writing of the suspension of the execution.   He further reported the Enforcement Office for the fact that he had not been informed that the decision of 12 January 1988 was going to be executed.           In her statement to the Parliamentary Ombudsman the Chief Judge of the District Court referred to a written statement by the judge in charge of the applicant's case.   The judge stated the following:   "By way of written petition of 18 January 1988 Hedén requested that the proceedings be resumed and that the execution of the decision of the District Court of 12 January 1988 in the debt recovery matter be stayed. Following an inquiry by the District Court the Enforcement Office informed the Court that no request for execution of the decision was pending...   On 5 February 1988 I agreed by telephone with the secretary of [the creditor's representative] that the first meeting between the parties in the case would be held on 8 March 1988.   The secretary at the same time undertook to see to it that the Enforcement Office be requested to stay the execution [of the decision of 12 January 1988], if such a request for execution had been submitted, pending the outcome of the request that the proceedings be resumed.   In other cases I have often relied on such an undertaking by telephone given by plaintiffs' representatives who have been well known to me.   I have therefore not issued any order that execution be stayed. This way of proceeding has not previously led to any complication.   Therefore, in the case at issue I did not issue any suspension order.   Apparently, I have to be a little more careful in the future when it comes to relying trustfully on informal undertakings and therefore refraining from issuing an order that execution be stayed."   The Chief Judge added:   "The practice at the District Court is immediately to make a decision in matters regarding stay of execution.   This is clear from my inquiry to numerous judges at the District Court. The statement by B.O. shows that he will also in the future follow this practice.   The District Court naturally regrets what has happened."           The following is an extract from the statement of 7 April 1988 to the Parliamentary Ombudsman submitted by the Director of the Enforcement Office:   "... Had Hedén awaited the arrival of the official instead of leaving [his apartment] and had he explained to him that a request for stay of execution was pending, the District Court could have been contacted in order to inquire whether a decision [upon that request] had been issued.   ... Before an official who is going to carry out an eviction leaves the Enforcement Office [he] should ascertain whether stay of execution has been granted or whether a decision to stay execution has arrived.   It is very rare and unfortunate that a decision is issued as late as in Hedén's case."           The following is an extract from the additional statement of 25 April 1988 submitted to the Parliamentary Ombudsman by the Director of the Enforcement Office:   "The working instructions for the Enforcement Office of 1979 state that great efforts should be made to find a tenant [in person] in order to notify him of an eviction request under Chapter 16 Section 2 of the Act on Execution (utsöknings- balken), the reason being, on the one hand, to guarantee the legal safeguards of the tenant, and on the other hand, to facilitate the execution by obtaining more information regarding the number of children, the extent of the possessions etc.   As to the method of serving the notification [of the eviction upon the debtor] by putting it in his letter-box (brevlådedelgivning) the normal practice has been to try several (up to three) times to find the debtor [in person] before serving the notification by putting it in the letter-box.   ... Due to a big work load, long distances and a decreased number of staff the requirement that several efforts be made [to notify the applicant in person] has had to be abandoned. As in other Enforcement Offices the so-called letter-box notification may now be used already the first time [the applicant is not found in person], unless there is an indication that the tenant is temporarily not staying in the apartment (e.g. because of holidays or hospitalisation). The official will then check the letter-box to see whether there is unopened mail in it.   Neighbours may also be asked, as well as the property owner.   If it is considered necessary, the notification will also be sent by regular mail, in case the tenant is having his mail forwarded.   It is, however, exceptional that a letter-box notification is made already the first time.   Support for this method of service may in the Enforcements Office's view be found in the wording of the provision in Chapter 16 Section 2 of the Act on Execution.   Further, support for the method may be found in [the Report of the Parliamentary Committee on Legal Matters] No. 1980/81 : 23 p. 39, last Section.   If, on the day of the execution, it is suspected that the tenant is not staying in the apartment and that he has not received the notification of the Enforcement Office, the proceedings will of course be interrupted.   New inquiries from neighbours, the social authorities etc. will then be made.   ... Having heard [the enforcement official] M.E. about the method of service she has stated that there was no indication that Hedén was not staying in the apartment.   For example, there was no mail in the letter-box.   When the [execution] proceedings commenced the notification of the Enforcement Office could not be found in the letter-box.   As already mentioned, Hedén arrived at the apartment about ten minutes before the proceedings were to take place.   He then discussed with the property owner who informed him that the eviction would be carried out.   Hedén then left the place. Had he, instead, waited for the official and told him that he had submitted a request for stay of execution to the District Court, the execution could have been stayed.   The Enforcement Office doubts the information given by Hedén that he had received the Enforcement Office's notification only a few hours before the [execution] proceedings were to take place."           The applicant subsequently reported to the police that some of his possessions had been stolen from his basement storage in connection with his eviction.   The investigation in respect of that charge was closed by the District Prosecutor of Gothenburg on 29 November 1988.   This decision was upheld by the Chief District Prosecutor (överåklagaren) on 12 January 1989.           It appears from the file that in 1989 the applicant brought an action against the State, claiming damages for alleged negligence by the Enforcement Office when carrying out his eviction.   The applicant alleged that the Enforcement Office's actions were unlawful with regard to the stay of execution and the way in which the notification of the eviction was served upon him.   He further referred to the alleged loss of his possessions in the apartment as well as in his basement storage.           The following is an extract from a statement of 5 April 1989 by the National Tax Board (riksskatteverket) to the District Court, in which the National Tax Board contested the applicant's claim:   "... As to the possessions which were left in the apartment the Enforcement Office used the method of changing the lock and the name [on the door to the apartment] (lås- och namnbytes- metoden).   This is not specifically regulated in law, but has developed from practice.   The provisions in Chapter 16 of the Act on Execution (utsökningsbalken) do not prohibit the use of this method. ...   It is used in evictions from an apartment and requires the consent of the landlord.   The possessions may be left in the apartment, but the tenant loses his right of disposal by the change of the lock; furthermore, the name on the door is changed.   The tenant may in co-operation with the landlord recover his possessions.   The eviction is concluded when the lock and the name have been changed and the possessions are stored with the landlord.   ... the official informed Hedén that he could, in agreement with the landlord, recover the possessions which were left [in the apartment].   Insofar as Hedén claims damages because these possessions have been thrown away he has to turn to the landlord and not to the State.   As regards the possessions in the basement storage it is clear ... that it could not be decided with certainty which storage belonged to Hedén.   The storage could therefore not be emptied.   Neither could any lock be changed.   Therefore no eviction regarding the storage took place.   Hedén retained his right of disposal of the storage.   Insofar as he claims damages with regard to the possessions in the storage he cannot turn to the State, but has to turn to the person who has broken the lock and thrown away the goods, that person according to the applicant being the landlord."           The outcome of these proceedings before the District Court does not appear from the applicant's submissions.           In his decision of 28 June 1989 the Parliamentary Ombudsman stated the following:   "The possibilities for a District Court to stay execution of judgments by default (tredskodom), decisions in debt recovery cases (lagsökningsmål), decisions in cases regarding judicial assistance (handräckningsmål) or final decisions (slutbevis) in cases brought by dunning-process (betalningsföreläggande) are not explicitly regulated by law.   Insofar as decisions in debt recovery cases are concerned, it follows, however, indirectly from the Act on Execution, Chapter 3, Section 11, that such a possibility exists.   Stay of execution is an important part of the legal safeguards for a person requesting proceedings to be resumed.   A request that the proceedings be resumed is directed at a decision made in a summary procedure and where the court's decision is often exclusively based on information submitted by the plaintiff.   It is true that the summary procedures probably lead to materially correct decisions in most cases.   It may, however, happen that the debtor, when requesting that the proceedings be resumed, submits such information that the decision at issue appears materially doubtful or plainly wrong.   In such cases it is of course important that the decision is not enforced before the issues in the case may be examined in a normal procedure.   The question of stay of execution must therefore always be decided urgently.   When dealing with [such a matter] it is not possible to separate requests for stay of execution which appear justified and those which do not appear justified, and assume the necessity of an urgent treatment only for the first-mentioned category.   A debtor who is considered to have weak grounds for his request for stay has a right to receive a negative decision as quickly as possible, to guide him in his future conduct.   It can in no case be accepted that the Court, by neglecting to respond to a request for stay of execution, in practice leaves the decision whether the execution should be stayed or not completely in the hands of the plaintiff.   Accordingly, B.O.'s way of handling the request for stay was wrong.   I am gravely concerned about the procedure, as apparently it has been used also in other cases.   Having regard on the one hand to the fact that B.O. now apparently has realised that his conduct was wrong, on the other hand to the fact that he, from what has appeared in the investigation, had a certain justification for his understanding that no request for execution would be submitted, I refrain from pursuing this matter any further.   The handling [of the applicant's case] by the Enforcement Office does not give rise to any statements by me."           Following a refusal of the applicant's insurance company to pay compensation for the allegedly lost possessions the applicant brought an action against the company before the National Board for Consumer Complaints (allmänna reklamationsnämnden), which recommended that the insurance company pay compensation, as it had been established that the lock to the applicant's storage had been broken by his landlord.           According to Chapter 3, Section 11 of the Act on Execution a decision in a debt recovery case ordering the payment of a debt may be immediately executed, provided that no decision to stay execution is made upon a request that the proceedings be resumed or upon an appeal.     COMPLAINTS   1.       The applicant complains that he was evicted from his flat because the District Court failed to inform the Enforcement Office of the order that execution be stayed.   He alleges that judge B.O., only after having been informed that the execution was being carried out, informed the Enforcement Office of the order.   By that time, however, the eviction had already taken place.           The applicant further alleges that he was notified about the date and time of the eviction only a few hours beforehand.   He alleges that due to hospitalisation he had not been staying in his apartment during the week before 23 February 1988, on which date he came home at 11.20, finding the notification from the Enforcement Office regarding the eviction which was to take place on the same day.   Due to his state of shock he left his apartment immediately thereafter.   2.       The applicant also complains that his eviction was carried out in such a way as to cause the subsequent loss of certain possessions left by the enforcement officials in the apartment and the basement storage.           The applicant alleges violations of Article 8 of the Convention.     THE LAW   1.       The applicant complains that his eviction was caused by the District Court's failure to inform the Enforcement Office of the decision that execution be stayed.   He further complains of the method of service used in order to notify him of the eviction and of the way in which the eviction was carried out.   He invokes Article 8 (Art. 8) of the Convention which reads:   "1.      Everyone has the right to respect for his private and family life, his home and his correspondence.   2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."           As regards the alleged failure to inform the Enforcement Office of the decision to stay execution, the Commission finds it established that no formal decision was made.   The judge in charge was critisised by the Parliamentary Ombudsman for failure urgently to make a decision upon the applicant's request for stay of execution. The Commission observes that under Swedish law the applicant had no right as such to an immediate stay of execution.           As regards the method of service used for the notification of the eviction the Commission observes that, although the method of service used in the applicant's case was exceptional, it was carried out on the basis of indications that the applicant was staying in his apartment at the time of the notification.   Moreover, the applicant arrived at his apartment and found the notification before the eviction was carried out.   There is no substantiation of the applicant's allegation that due to his state of shock he had to leave his apartment, thereby not being able to inform the enforcement official in charge of the eviction that his request for stay of execution was pending before the District Court.           As regards the applicant's eviction the Commission considers that it constituted an interference with his right to respect for his private life and his home within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.           It must therefore be examined whether this interference was justified under the terms of Article 8 para. 2 (Art. 8-2) of the Convention. In order to be justified an interference must satisfy three conditions: it must be "in accordance with the law", it must pursue one or more of the legitimate aims enumerated in Article 8 para. 2 and it must be "necessary in a democratic society" for that or those legitimate aims (cf.   Eur.   Court H.R., Olsson judgment of 24 March 1988, Series A No. 130, p. 29, para. 59).           In the present case there is no indication that the eviction was not carried out "in accordance with the law".           Furthermore, the eviction was carried out in order to protect the rights of the landlord.   This was a legitimate aim for the purposes of Article 8 para. 2 (Art. 8-2) of the Convention.           It remains to be examined whether the eviction was "necessary in a democratic society" for the protection of the rights of the landlord.   The Commission recalls that the notion of necessity implies that the interference corresponds to a pressing social need and that it is proportionate to the legitimate aim pursued.           The eviction was, by its very nature, bound to cause difficulties for the applicant.   The Commission observes, however, that it was based on the District Court's decision of 12 January 1988 ordering the applicant to immediately leave the apartment.   The applicant chose not to comply with that order.   Thus, what is at issue in the present case is the execution of a legally binding judgment. In a State of law such an execution must be considered "necessary" for the protection of the rights of others.           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.   2.       The applicant also complains that the way in which his eviction was carried out caused the subsequent loss of certain possessions left by the enforcement officials in the apartment and the basement storage.           The Commission has examined this complaint as submitted by the applicant.   It cannot find any appearance of a violation of Article 8 (Art. 8) of the Convention.           It follows that this part of 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, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission       President of the Commission                  (H.C. KRÜGER)                     (C.A. NØRGAARD)