CASE OF KHURSHID MUSTAFA AND TARZIBACHI v. SWEDEN
Violation of Art. 10;Pecuniary and non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. The applicants, a married couple of Iraqi origin, were born in 1957 and 1963 respectively and live in Västerås. They have three children, who are now eighteen, sixteen and eight years of age. 6. From 1 November 1999 they rented a flat in Rinkeby, a suburb of Stockholm. Rule 13 of the special provisions of the tenancy agreement stipulated the following: “The tenant undertakes not to erect, without specific permission, placards, signs, sunblinds, outdoor aerials and such like on the house.” The agreement further stipulated, as a general condition, that the tenants were obliged to take proper care of the flat and to maintain good sanitary conditions, order and good practice in the house. 7. It appears that when the applicants moved in, there was a satellite dish mounted on the façade, next to one of the windows of the flat. The applicants made use of this in order to receive television programmes in Arabic and Farsi. 8. In October 2003 the applicants' landlord changed. The new landlord, a real-estate company, demanded that the satellite dish be dismantled. The applicants did not comply and, by letter of 2 April 2004, the company gave the applicants notice of termination of the tenancy agreement with effect from 31 July 2004. 9. Further, in April 2004, the landlord initiated proceedings before the Rent Review Board (hyresnämnden) in Stockholm against the applicants and some other tenants who had installed satellite dishes in the same house. The landlord sought execution of the notice of termination, claiming that the applicants' satellite installation violated the express ban in Rule 13 of the tenancy agreement and that, by not complying with the instruction to dismantle the dish, they had failed to maintain good sanitary conditions, order and good practice. Stating that it objected only to satellite dishes mounted on or outside the façade of the house, while allowing, for instance, dishes placed on a balcony, the landlord claimed that the ban on such installations was of considerable importance as the installations a) risked causing injuries to persons and property for which the landlord would be held responsible, b) damaged the house physically and aesthetically and c) obstructed rescue workers' and the landlord's access to the flat. 10. Shortly after having received the notice of termination, the applicants dismantled the satellite dish. However, in its place they installed a new device by placing on the kitchen floor an iron stand from which an arm, on which the satellite dish was mounted, extended through a small open window. The installation could be pulled back into the kitchen when not being used. At the request of the Tenants' Association, an engineer, Mr S. Tornefelt, examined the installation on 26 August 2004. He found that it was very stable but recommended that, for safety reasons, a steel wire be fixed between the dish and the stand. The applicants made the recommended addition. 11. The applicants, as well as the other tenants summoned, contested the landlord's claims before the Rent Review Board. They stated that, by mounting satellite dishes for the reception of television programmes, some of which were broadcast in their mother tongues, they were exercising their freedom to receive information, as protected by the Swedish Constitution, Article 10 of the Convention and EC law. The landlord's interests, as provided for in Chapter 12, section 25 of the Land Code (Jordabalken), had to be balanced against this freedom. The applicants further claimed that they had now complied with the landlord's demand that the earlier satellite installation be dismantled. The new installation was, they claimed, in conformity with the rules of the tenancy agreement. Referring to Mr Tornefelt's opinion, they further maintained that it was safe and did not damage the house. The landlord submitted, in addition to what it had previously stated, that it was working on the possibility of installing broadband and internet access in the house, which would allegedly give access to the desired television channels. 12. Following an inspection of the applicants' satellite installation, the Rent Review Board gave a decision on 21 October 2004 finding in their favour. The Board noted in general that the assessment of whether tenants had failed to comply with their obligations by mounting satellite dishes had to involve the balancing of the interests of the landlord – which could be more or less strong depending on how the actual installations had been made – and the interests of the tenants in using a satellite dish – which could also vary depending on whether there were alternative means of receiving the television channels in question. In the applicants' case, the Board found that the fact that the new satellite installation extended through a window did not involve a breach of Rule 13 of the tenancy agreement. With regard to the general obligation to maintain good sanitary conditions, order and good practice in the house, the Board considered that the actual installation did not and could not damage the house. Moreover, the landlord's liability for damage to persons and property could not reasonably be incurred unless it were able to prevent the mounting and use of the satellite dish, which was not the case if the Board found that the landlord had no right to such prevention. Moreover, having regard to Mr Tornefelt's opinion and its own inspection, the Board considered that the risk of damage caused by the installation was negligible. Nor could it not find any evidence that the installation would obstruct rescue workers' access to the flat. The only inconvenience for the landlord was the aesthetic aspect. However, the applicants' interest in being able to watch television programmes that were not accessible by other available means weighed more heavily, and the satellite installation could not therefore be considered as contrary to good sanitary conditions, order and good practice. 13. The landlord appealed to the Svea Court of Appeal (Svea hovrätt). The court held an oral hearing at which, inter alia, Mr Tornefelt gave evidence. It also made an inspection of the applicants' satellite installation. By a final decision of 20 December 2005, the court found that the applicants had disregarded their obligations as tenants, under the tenancy agreement and Chapter 12, section 25 of the Land Code, to such a degree that the agreement should not be extended, pursuant to Chapter 12, section 46, subsection 1(2) of the Code. They were given a respite until 31 March 2006 to move from the flat. The court found that the landlord had made a reasonable distinction between acceptable and unacceptable satellite installations and had submitted weighty reasons for prohibiting dishes mounted on the façade or otherwise extending outside of it. It noted that the evidence showed that the applicants' dish was virtually always positioned outside the kitchen window and thus constituted a permanent installation, and concluded, contrary to the findings of the Rent Review Board, that its placement breached Rule 13 of the tenancy agreement. In assessing the seriousness of this breach of contract, the court first concluded, with reference to Mr Tornefelt's testimony, that the satellite installation met the reasonable requirements of stability and safety. However, noting that the landlord's main reason for not allowing the installation was the safety aspect, the court considered that the landlord was entitled to make general risk assessments and should not have to determine whether an individual installation was unsafe or inconvenient. It went on to state that, while the applicants' interest in receiving the broadcasts of the television channels in question had to be taken into consideration and that it was desirable that technical solutions for such reception be found, the right to freedom of information relied on did not have such a bearing on the case that it could be considered to have any real importance. It noted, finally, that the applicants had been fully aware of the importance that the landlord attached to the issue of the placement of satellite dishes and of the consequences that could follow from a refusal to comply with the landlord's instructions in this respect. Although their satellite installation did not pose any real safety threat, their interests could not be allowed to override the weighty and reasonable interest of the landlord that order and good custom be upheld. 14. The landlord offered the applicants the option of staying in their flat if they agreed to remove the satellite dish. They did not agree to do this, however, and instead moved on 1 June 2006. They have stated that, largely because of the scarcity of flats for rent in the Stockholm area but also due to there being a court eviction order against them, they were forced to move to Västerås, approximately 110 km west of Stockholm. As a consequence, the first applicant now had much longer and costlier trips to and from work and the applicants' three children had had to change nursery and school and leave friends. 15. The renting of a flat is regulated primarily in Chapter 12 of the Land Code. 16. Section 2 provides that a tenancy agreement shall be in writing if the landlord or the tenant so request. In the event that a provision in the agreement is difficult to interpret, it is in practice ultimately interpreted to the disadvantage of the person who formulated the agreement. As it is almost always the landlord who draws up the tenancy agreement, the landlord has to take the responsibility for an agreement that is difficult to interpret. In most cases, landlords use standard agreements, the content of which is the result of negotiations between rental market organisations. 17. Section 3 contains provisions for the term and cancellation of tenancies. A tenancy agreement which is applicable for an indefinite period, as in the present case, must be cancelled for it to cease to apply. According to section 4, an indefinite tenancy agreement can be cancelled and thus cease to apply on the first day of the month following three months' notice. Section 8 provides that, in a case such as the present, a notice of cancellation shall be in writing and comply with certain rules governing service. 18. Section 23 provides, inter alia, that a tenant may not use the flat for a purpose other than that intended. Under section 24, the tenant is under an obligation to take good care of the flat. In general, he or she shall take care of it in a way that can be reasonably expected of an orderly person. Further, the tenant is liable to make good all damage caused by his or her carelessness or negligence. 19. Section 25 contains provisions on disturbances and demands on the tenant for keeping the flat sound, orderly and in good condition. Subsection 1 provides: “When using the flat, the tenant shall ensure that persons living in the vicinity are not subjected to disturbances which may be harmful to their health or otherwise impair their dwelling environment to an extent not reasonably tolerable ... . In his use of the flat, the tenant shall also in other respects do all that is necessary to keep the property sound, orderly and in good condition. ...” Disturbances and failure to meet those requirements may result in the tenancy agreement being forfeited under section 42. Special provisions and regulations can be included in the tenancy agreement. A tenant's refusal to abide by such provisions and regulations may also constitute a failure to fulfil the requirements for keeping the flat sound, orderly and in good condition. 20. It follows from section 46 that if the landlord has given notice of cancellation of the tenancy agreement, the tenant may still be entitled to have the agreement extended. However, subsection 1 of section 46 lists a number of situations in which the tenant loses the right to renewal. The first situation, laid down in subsection 1(1), is the forfeiture of the tenancy. Section 42 stipulates the conditions in which a tenancy agreement is deemed to be forfeited, including residential disturbances and failure to keep the flat sound, orderly and in good condition. The second situation, regulated in subsection 1(2), was relied on by the landlord and applied by the Court of Appeal in the present case. It concerns the tenant's neglect of their obligations. If the obligations are neglected to such an extent that it is not reasonable for the tenancy agreement to be extended, the tenant may lose the right to such renewal. The preparatory works to the latter provision state that the requirements of orderliness must be high in order to make it possible for the landlord to maintain the property in good order and condition (SOU 1961:47, pp. 84-85). The interests of the landlord shall be weighed against the reasonableness of the tenancy being terminated. Distressing personal circumstances may be taken into account. The possibility of another flat in the same area should also be considered (Government Bill 1968:91, Appendix A, p. 91). Examples of negligence are, for example, failure to pay rent, subletting without permission, refusing to grant the landlord access to the flat, depositing rent without valid reasons, residential disturbances, a failure to keep the flat sound, orderly and in good condition, and a breach of clauses in the tenancy agreement. 21. A large number of tenancy disputes are examined by the eight regional rent review boards, whose task it is, under section 4 of the Lease Review Boards and Rent Review Boards Act (Lagen om arrendenämnder och hyresnämnder, 1973:1988), to examine disputes concerning, for example, the terms of a tenancy and disputes relating to the renewal of a tenancy agreement. A decision by a Rent Review Board in a renewal dispute, as in the present case, can be appealed to the Svea Court of Appeal, in accordance with the Land Code, Chapter 12, section 70 in conjunction with section 49. No appeal lies against the court's decision, as provided for in section 10 of the Svea Court of Appeal Rent Cases Judicial Procedure Act (Lagen om rättegången i vissa hyresmål i Svea hovrätt, 1994:831). 22. Chapter 1, section 3, subsection 3 of the Constitutional Law on Freedom of Expression (Yttrandefrihetsgrundlagen) states the following: “Subject to any contrary provision of this Constitutional Law neither public authorities nor other public bodies shall prohibit or prevent the possession or employment of such technical aids as are necessary to receive radio programmes or to view or hear the content of technical recordings on grounds of the content of a radio programme or technical recording,.The same shall apply to any ban on the construction of landline networks for the transmission of radio programmes.” 23. Chapter 2, section 1, subsection 1 of the Instrument of Government (Regeringsformen) provides, inter alia, as follows: “Every citizen shall be guaranteed the following rights and freedoms in his relations with the public institutions: 1. freedom of expression: that is, the freedom to communicate information and express thoughts, opinions and sentiments, whether orally, pictorially, in writing, or in any other way; 2. freedom of information: that is, the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others; ...” Section 12 provides that the enumerated rights and freedoms may be restricted only to satisfy a purpose acceptable in a democratic society. The restriction may never go beyond what is necessary having regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy. Furthermore, no restriction may be imposed solely on grounds of a political, religious, cultural or other such opinion. Under section 13, freedom of expression and information can only be restricted on grounds of national security, national provision of supplies, public order and safety, the good name of an individual, the sanctity of private life, and the prevention and prosecution of crime. Freedom of expression may also be restricted in commercial activities. 24. The Constitutional Law on Freedom of Expression and the Instrument of Government apply to the relationship between individuals and public bodies. They do not apply to relationships between individuals.