CASE OF LANGBORGER v. SWEDEN
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal;Public hearing;Public judgment);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
C. Russo;J.A. Carrillo Salcedo;N. Valticos
7. Mr Rolf Langborger is a Swedish national born in 1922. He is a consultant engineer and resides at Solna, a town in the immediate vicinity of Stockholm. On 1 October 1982 he rented an apartment. The lease contained a "negotiation clause" (förhandlingsklausul, see paragraph 16 below) which was worded as follows: "During the running of the lease the parties undertake to accept, without prior termination of the lease, the rent and other conditions agreed upon on the basis of the negotiation agreement (förhandlingsordning) in force between, on the one hand, a landlords’ union affiliated to the Swedish Federation of Property Owners (Sveriges Fastighetsägareförbund) and a landlord, who with his property is affiliated to such a union, and, on the other hand, a tenants’ union affiliated to the National Tenants’ Union (Hyresgästernas riksförbund)." An agreement between the two unions laid down the negotiating procedure. For conducting the negotiations the tenants’ union in question received a commission of 0.3% of the rent (see paragraph 16 below). 8. The applicant was dissatisfied with the rent and with the fact that he was represented by the Tenants’ Union of the Greater Stockholm Area (hyresgästföreningen i Stor-Stockholm, "the Tenants’ Union"). He therefore gave notice of his intention to terminate the lease in accordance with Chapter 12, section 54 of the Land Act (jordabalken), with a view to having its terms altered. He proposed to the landlord the conclusion of a new agreement with a fixed rent and no negotiation clause. Following the rejection of his offer, he brought the dispute before the Rent Review Board (hyresnämnden) for Stockholm County on 23 June 1983. 9. In accordance with the legislation in force (see paragraph 19 below), the section of the Rent Review Board which examined the case was composed of a chairman and two lay assessors (intresseledamöter). At the time of his appointment, the chairman, Mr Göran Hogebrandt, held a non-permanent judicial appointment as an associate judge in the Court of Appeal. The two assessors, who were nominated respectively by the Swedish Federation of Property Owners and the National Tenants’ Union, were experts on the administration of apartment buildings and on the problems of tenants. One, Mr Jan Åke Hedin, the managing director of his own electricity business, was also the president of one of the district associations affiliated to the Stockholm Landlords’ Union (Stockholms Fastighetsägareförening, "the Landlords’ Union"). The other, Mr Gösta Gröndahl, a retired customs official, was a member of the Tenants’ Union and had previously been the president of one of the district associations for nine years. 10. The applicant first challenged the two lay assessors because they had been nominated by a landlords’ association and a tenants’ organisation (see paragraph 19 below). He considered that they could not decide his case objectively and impartially because the Tenants’ Union depended for its existence on the sums paid to it for conducting the rent negotiations (see paragraph 16, last sub-paragraph, below) and the Landlords’ Union also derived a major part of its raison d’être from its participation in these negotiations. In addition he claimed that there was a risk of discrimination on political grounds because the Tenants’ Union was socialist in outlook, whereas he was a local elected representative belonging to a moderate right wing grouping. As regards the merits, he sought the deletion of the negotiation clause from the lease and contested the amount of the rent. 11. On 17 November 1983 the Rent Review Board held a hearing at which the applicant and his representative and the landlord’s representative were present. The chairman dismissed the applicant’s challenge because the rules governing the appointment of the lay assessors did not in themselves provide a ground for such a challenge and because there were no other grounds on which it could be based. After having heard the views of the parties as to the merits of the case, the Rent Review Board went on to state that its decision would be available at its secretariat on 1 December 1983. On that date it dismissed Mr Langborger’s claims. Its decision, which was communicated to him through the post, referred, inter alia, to the declarations of the competent minister during the examination of the Rent Negotiation Bill (see paragraph 16 below) regarding the discretion conferred on rent review boards in deciding whether negotiation clauses should be retained. 12. Mr Langborger appealed from this decision to the Housing and Tenancy Court (bostadsdomstolen). He relied on Articles 6, 11 and 13 (art. 6, art. 11, art. 13) of the Convention and sought a thorough examination of the challenge which he had submitted at first instance; he also challenged the lay assessors of this court. As to the merits, he repeated his claim that he should not be represented by the Tenants’ Union and that he should be permitted to fix his rent in direct negotiations with the landlord. 13. The court which examined the applicant’s appeal was composed of four members (see paragraph 23 below). The President, Mr Hans Svahn, had, until his appointment to the Housing and Tenancy Court, presided over a Chamber of the Svea Court of Appeal and still retained this post, on a formal basis, while exercising his new function. The other lawyer, who acted as rapporteur, Mr Hans Anderberg, remained a Rent Judge (see paragraph 19 below). The two lay assessors had (like the assessors sitting on the Rent Review Board) been nominated by, respectively, the Swedish Federation of Property Owners and the National Tenants’ Union (see paragraph 22 below). One was an expert on the administration of apartment buildings and the other on tenants’ problems. The first, Mr Bertil Tullberg, was a titular lay assessor; before retiring he had worked for the Stockholm Landlords’ Union as legal adviser from 1943 and then as its managing director. The second, Mrs Märta Kåremo, was a salaried official of the National Tenants’ Union, where she was responsible for staff legal training. She sat on the Housing and Tenancy Court as a substitute lay assessor. 14. The landlord of the flat was represented by the same official of the Landlords’ Union who had assisted him before the Rent Review Board (see paragraph 11 above). 15. On 28 December 1983 the Housing and Tenancy Court informed Mr Langborger by letter that it considered that it might "determine the case as it was constituted at present and without a hearing". On 23 February 1984 the rapporteur rejected the application challenging the two lay assessors. The rules governing their appointment could not in themselves constitute valid grounds for their disqualification. On 2 April 1984 the Housing and Tenancy Court dismissed the remainder of Mr Langborger’s appeal and upheld the Rent Review Board’s decision. It gave its ruling in private, in the absence of the parties and without having held a hearing. Its decision was final. The applicant received a photocopy of this decision through the post. On 17 April 1984 he obtained a copy of the decision of 23 February which, by error, had not yet been sent to him. 16. Section 2 of the 1978 Rent Negotiation Act (hyresförhandlingslagen, "the 1978 Act") defines the negotiation clause as a provision in a lease whereby the tenant agrees to be bound by the terms of the lease, in particular regarding the rent, as accepted by the association conducting the negotiations. It provides that this clause is introduced or retained if this is not unreasonable, having regard to the tenant’s standard of living and his opinion and to the opinion of other tenants affected by the clause. A dispute regarding the insertion or retention of a negotiation clause may be submitted to a rent review board. According to the preparatory documents, this possibility was introduced to provide legal protection for private individuals, in particular those who were not members of the organisations which participated in the negotiations. The board may exempt the party concerned from the obligation to accept a negotiation clause; in deciding whether to do so, it must, inter alia, weigh the interest in adopting a rational approach to rent negotiations against the fundamental need for the greatest possible contractual freedom for the individual (Government Bill No. 1977/78:175, p. 130 et seq.). Section 1 provides that these conditions are to be negotiated between, on the one hand, the landlord or the landlord and a landlords’ organisation and, on the other hand, a tenants’ organisation. The tenant - who therefore has no right to negotiate - need not be a member of the organisation. Under section 3, the system applies in principle to all the flats in a building. These negotiations, which must be conducted in the manner laid down in the Act, are not compulsory but depend on the desiderata of the parties. If one of them refuses to conclude an agreement, the dispute may be referred to the Rent Review Board. Under section 20, the rent may incorporate the amount - a percentage of the rent agreed in the negotiations - payable to the tenants’ organisation for its role in these negotiations. 17. The principal advantage which the landlords’ associations derive from the system is that they only have to negotiate rents with the tenants’ organisations and not with the individual tenants. For their part the tenants’ organisations can exert, through their right to represent the tenants, a continuous and durable influence on the conditions of the market in rental accommodation. At present this system applies to all accommodation owned by public organisations and to 80% of privately owned buildings comprising more than two flats. 18. Rent review boards were set up by the 1973 Lease Review Boards and Rent Review Boards Act (lag 1973:188 om arrendenämnder och hyresnämnder, the "1973 Act"). They hear, inter alia, disputes on rents arising in connection with the provisions of Chapter 12 of the Land Act. 19. Under section 5, each rent review board is composed of a chairman - referred to as a Rent Judge - and two lay assessors, one of whom must be familiar with the problems of the administration of property and the other with those of tenants. The chairman is appointed by the Government or by an authority delegated by them, on the recommendation - which is always requested, except in three specific cases - of the Judicial Appointments Recommendation Board (tjänsteförslagsnämnd). He must have legal training and his post is full-time. The lay assessors are appointed by the National Board of the Judiciary (Domstolsverket) for a term of office of three years, which is generally renewed. Under section 6 para. 2 of the 1973 Act, the representative organisations of the housing sector (essentially the Swedish Federation of Property Owners and the National Tenants’ Union) must be able to put forward candidates when the appointment to be made concerns their interest group. The persons selected sit in a personal capacity and not as the representatives of their organisations. The lay assessors are not designated in advance for each case, but carry out their functions in accordance with a prepared schedule; their duties are not full-time. In addition, if a board has several sections, cases are, in practice, allocated on a geographical basis. 20. In principle, proceedings before a rent review board are oral. They are governed by the general provisions of the Administrative Act (förvaltningslagen), although the Code of Judicial Procedure applies for certain formalities. The board’s decisions must contain a statement of reasons and be given in public. They are pronounced on the day of the hearing or within two weeks thereof at the latest. A copy is sent to the parties. 21. The Housing and Tenancy Court was set up by an Act of 1974 (lag 1974:1081 om bostadsdomstol, "the 1974 Act") and has jurisdiction for the whole of Sweden. It hears appeals lodged against the decisions of the rent review boards. Its judgments are final. 22. The court is composed of at least three lawyers ("Housing Judges"), a technical assessor - who in certain cases replaces one of the lawyers - and a maximum of twelve lay assessors. All the members are appointed by the Government for a term of office of three years which is renewable. The lawyer members are, in general, judges, while the lay assessors are experts on the housing market. An identical nomination procedure to that operating for the appointment of lay assessors to rent review boards (see paragraph 19 above) applies. 23. The court is always presided over by a lawyer. It can sit with seven members or, as in this instance, with four. In the latter case, there must be two housing judges and two lay assessors. If they are unable to reach a majority decision, the president has a casting vote. The proceedings are written, but a hearing may be held if that appears to be necessary for the purposes of the investigation. In some cases argument is taken on a specific point, while in others it concerns the case as a whole. The Housing and Tenancy Court applies the general provisions of the Code of Judicial Procedure. Except in certain cases - which are not relevant here - its judgments are given in public. If the court cannot give a decision at a hearing, it makes the text thereof available to the parties at the registry and communicates to them a copy by post. 24. The Supreme Court (Högsta domstolen) has had occasion to rule on the independence and impartiality of a lay assessor who had to sit in a case involving the association which had nominated him (judgment of 21 September 1982, case no. Ö 600/81, Hyresgästföreningen Kroken, in Nytt Juridiskt Arkiv (NJA), 1982, p. 564). It held that there was no ground for allowing the challenge. The Supreme Court first considered the lay assessors’ position in general. It pointed out that their presence was "designed to ensure that there were persons on the court who are well acquainted with the questions with which the court has to deal and who can, in an authoritative way, express the ideas of the interest groups concerned." It held that: "... the fact that a member, generally speaking, represents a certain interest group does not mean that he is biased when dealing with a case where one of the parties belongs to this interest group. As was stressed in the preparatory documents (NJA II 1974, p. 546), it is not intended that the lay assessors in their capacity as judges should feel bound by the interests which they can be said to represent. They should, like the other members, carry out their duties as independent judges and not as representatives of party interests." Turning then to the case at hand, it rejected the challenge which was based on "the viewpoint that every member who is closely linked to the tenants’ movement, for that reason alone, is biased when dealing with such a case". In setting out its reasoning the Supreme Court said inter alia: "... it should first be pointed out that it is not the task of the lay assessors of the Housing and Tenancy Court to represent their organisations. They should represent the whole interest group in question without regard to their involvement in a particular organisation. The legislation is obviously based on the assumption that the lay assessors will be able to deal impartially with disputes even where the interests of their organisation are directly at issue, and it is not compatible with the provisions of the Act generally to regard members attached to an organisation as biased in such disputes." The Court added however: "there may of course be grounds for challenging a member of the court if he has been involved in the dispute before the court."