CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1992

.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. 16056/90                        by Harry WAHLBERG, Bernt ENGMAN and                        Thomas ENGDAHL                        against Sweden             The European Commission of Human Rights (Second Chamber) sitting in private on 2 December 1992, the following members being present:                  MM.    S. TRECHSEL, President of the Second Chamber                  G. JÖRUNDSSON                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                    Mr. K. ROGGE, Secretary to the Second Chamber             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 November 1989 by Harry WAHLBERG, Bernt ENGMAN, and Thomas ENGDAHL against Sweden and registered on 25 January 1990 under file No. 16056/90;         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 facts of the case, as submitted by the applicants, may be summarised as follows.         The applicants are Swedish citizens, residing at Johanneshov, a suburb of Stockholm. Before the Commission they are represented by Mr. Henrik Hoffman, a lawyer practising in Stockholm.         The first applicant, Mr. H.W., is a member of the Tenants Union of the Stockholm area (hyresgästföreningen i Stor-Stockholm). The second and the third applicants, Mr. B.E. and Mr. T.E., are not members of the Tenants Union.         On 1 October 1959 H.W. rented a flat at Per Lindeströms väg 111 in a residence called Sjöfararen which was part of a residential complex comprising a number of large apartment buildings. He has subsequently, on 15 August 1989, moved to another apartment building in the same street, no. 93 - A.         The second applicant, B.E., lives at Per Lindeströms väg 119, in another apartment building belonging to the same residential complex. The third applicant, T.E., also lived at Per Lindeströms väg 119, but in June 1989 he moved to another address which does not appear to belong to the above complex.         The lease contracts signed by the applicants for their apartments at Per Lindeströms väg contained inter alia the following passages:   (translation)              "The tenant will not receive a reduction in the rent       for inconveniences in respect of the right to use the       apartment due to work for normal upkeeping of the apartment       or the building as such, carried out by the landlord when       appropriate, or if such other works are carried out which       are specifically mentioned in the lease.              The landlord has the right, in accordance with       Chapter 3, Section 26, of the Act on the Right of Use of       Immovable Property (lagen om nyttjanderätt till fast       ejendom), to install such pipes for heating, water, sewers,       gas or electricity as are common to two or more apartments,       so-called main pipes."         It appears that in 1988 the landlord - a company, J M Byggnads och Fastighets AB (hereinafter called JM) - intended to repair and renovate the buildings in which the applicants lived. JM therefore contacted the Tenants Union and certain negotiations took place. The proposed repairs and renovations were discussed due to the fact that JM could not, according to Swedish law, proceed if the Tenants Union was opposed to the project. JM therefore needed the Tenants Union's approval in a so-called tenant certificate (hyresgästintyg).         The Tenants Union arranged meetings with the tenants including the applicants and eventually JM's renovation and repair proposals were accepted by the tenants. As regards the first applicant's apartment building the tenants accepted the proposals by a vote of seven to none with one abstention (apparently the first applicant's). As regards the second and third applicants' apartment buildings the vote was nine votes in favour and two against (the second and third applicants'). Accordingly, an agreement was reached on 14 October 1988 between JM and the Tenants Union concerning the proposed repairs and renovations. This agreement foresaw inter alia that JM should bear all costs in connection with the inconveniences caused by moving the tenants concerned to other apartments while the works were being carried out. On this basis the Union issued the necessary tenant certificate in respect of the apartment buildings in which the applicants resided.         On 18 November 1988 the first applicant lodged an appeal against the Tenants Union's issuing of this tenant certificate with the Stockholm Rent Board (Hyresnämnden i Stockholm). On 25 January 1989 the second and third applicants also lodged an appeal in so far as their apartment building was concerned. They did not approve of the repairs and renovations proposed and accordingly disagreed with the tenant certificate issued by the Tenants Union in accordance with the Act on Housing Renovation.         On 7 February 1989 the Rent Board informed the first applicant that it could only examine disputes between the Tenants' Union and the landlord (JM) but not those between the Tenants Union and the individual tenants for which reason he was requested to withdraw his complaints. On 22 February 1989 the first applicant informed the Rent Board, however, that he intended to pursue the matter. On 27 February 1989 the second and third applicants informed the Rent Board that they also intended to pursue their complaints.         On 28 February 1989 the Rent Board dismissed the first applicant's complaint. In its decision it stated:   (translation)              "(The first applicant) ... has complained to the Rent       Board of the fact that the Tenants Union has issued a       tenant certificate, i.e. accepted that certain improvement       work may be carried out in the apartment building.              According to Section 2 A, subsection 2, of the Act on       Housing Renovation (1973:531) the Rent Board is competent       to examine such issues.              However, this competence is limited to the situation       where the owner of the building complains that the union is       opposed to such improvement works.              This is not so in the present case. It follows that       the Rent Board is not competent to examine the case as       submitted by (the first applicant). The Rent Board       therefore dismisses the application."           The second and third applicants received a similar decision, dated 20 March 1989.         On 14 March 1989 the first applicant appealed against the decision to the Housing and Tenancy Court (bostadsdomstolen). His appeal was directed against the fact that the Tenants Union had issued a tenant certificate. Furthermore he requested the Court to prevent JM from carrying out the repairs and renovations in question. The second and third applicants lodged an appeal on similar grounds with the Housing and Tenancy Court on 10 April 1989.         In two decisions of 12 May and 2 June 1989 respectively, the Housing and Tenancy Court dismissed the appeals. In its latter decision the Court stated:   (translation)              "Neither the Rent Board nor the Housing and Tenancy       Court has competence to examine a decision by a tenants       union not to oppose improvement works being carried out in       the building. As held by the Rent Board the appeal must       accordingly be dismissed."         The first applicant subsequently lodged an appeal with the Government, which decided, on 14 June 1989, not to deal with the matter as it had no competence to do so.         In the meantime, it appears, the renovation and repair work started. The applicants submit that this included the replacement of the water and sewer pipes and a restructuring of the available apartment space. All three applicants moved out of their apartments during these works and in accordance with the agreement reached between the Tenants Union and JM of 14 October 1988, all costs in connection with this were borne by JM. The renovation work is now finished and the applicant T.E. has moved back whereas the applicants H.W. and B.E. have chosen another residence.     COMPLAINTS         The applicants complain, under Article 6 of the Convention, that they could not, in their capacity as individual tenants, obtain a determination of their civil rights by a tribunal in that they could not institute proceedings in which they could oppose the issuing of the tenant certificate.     THE LAW         The applicants invoke Article 6 para. 1 (Art. 6-1) of the Convention and complain that they do not have access to a tribunal which could determine the dispute concerning the issuing of a tenant certificate by which the landlord was allowed to renovate and repair their apartments.           The first sentence of Article 6 para. 1 (Art. 6-1) of the Convention 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 recalls the constant jurisprudence of the Convention organs, according to which Article 6 para. 1 (Art. 6-1) applies only to the "determination" of "civil rights and obligations" or any "criminal charge".   As the Convention organs have held on several occasions, there are cases which are not included in either of these categories and which thus fall outside the scope of Article 6 para. 1 (Art. 6-1) (see e.g. No. 10144/82, Dec. 11.5.83, D.R. 33 p. 276).         Since in the present case there is no question of a "criminal charge" the issue to be decided is whether there was a "determination" of a "civil right or obligation" in the proceedings before the Rent Board and the Housing and Tenancy Court.         The Commission recalls that under Swedish law the landlord of the apartment buildings in question, JM, could not undertake the renovation and repair works if the Tenants Union opposed it, unless JM had obtained the approval of the Rent Board. JM therefore needed a so- called tenant certificate as evidence that there was no objection by the Tenants Union.         The Commission considers that these proceedings concerning the issuance of a tenant certificate do not involve a determination of the applicants' civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   On the other hand, the renovation and repair work might subsequently involve disputes over civil rights between the tenant and the landlord, such as, for example, alleged breaches of the lease contract between them or the fixing of the rent.   The applicants have not, however, referred to such disputes, nor has it been alleged that such matters could not be brought before a tribunal which would satisfy the requirements of Article 6 (Art. 6) of the Convention.         It follows that the application, as submitted to the Commission, is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)