EUROPEAN COURT OF HUMAN RIGHTS

(excerpts - emphasis - see in particular paragraphs 30 through 36)

In the Langborger case*,

The European Court of Human Rights, taking its decision in plenary session pursuant to Rule 50 of the Rules of Court and composed of the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr Thór Vilhjálmsson,

Mrs D. Bindschedler-Robert,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr J. Pinheiro Farinha,

Mr L.-E. Pettiti,

Mr B. Walsh,

Sir Vincent Evans,

Mr R. Macdonald,

Mr C. Russo,

Mr R. Bernhardt,

Mr A. Spielmann,

Mr J. De Meyer,

Mr J.A. Carrillo Salcedo,

Mr N. Valticos,

Mr S.K. Martens,

Mrs E. Palm,

Mr I. Foighel,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,

Having deliberated in private on 23 February and 23 May 1989,

Delivers the following judgment which was adopted on the last-mentioned date:

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AS TO THE FACTS

I. Particular circumstances of the case

A. Introduction

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 appartment. 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.

B. Proceedings before the Rent Review Board

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.

C. The proceedings in the Housing and Tenancy Court

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.

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FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

27. At the hearing on 21 February 1989, the Government confirmed their submission made in their memorial inviting the Court "to hold that there has been no violation of the Convention in the present case".

AS TO THE LAW

I. PRELIMINARY OBSERVATION

28. The applicant argued that his various complaints were to be "taken together" and had "a common cause".

The Court considers it necessary first to take separately the different articles relied upon. It will then appraise the case in the light of the complaints viewed together.

II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION

29. Mr Langborger alleged the violation of paragraph 1 of Article 6 (art. 6-1) of the Convention, which is worded as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... ".

A. "Independent and impartial" tribunal

30. In the applicant's submission, his claim for a fixed rent and no negotiation clause was not examined by an independent and impartial tribunal. His true opponents, he argued, were the landlords' association and tenants' organisation inasmuch as his proposal to delete the negotiation clause from the lease threatened the interests of both organisations since they derived their very existence from rent negotiations. As the lay assessors sitting on the Rent Review Board and the Housing and Tenancy Court were committed to the defence of those interests, they could not assess his claim with the necessary independence and impartiality.

This view was contested by the Government.

Like the Commission, the Court will limit its examination to the Housing and Tenancy Court. This body was the last national organ to determine both the questions of fact and the legal issues in dispute (the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 23, para. 51).

31. When it decided the applicant's case, the Housing and Tenancy Court was composed of two professional judges and two lay assessors nominated respectively by the Swedish Federation of Property Owners and the National Tenants' Union, and then appointed by the Government (see paragraphs 13 and 22 above). The independence and impartiality of the professional judges are not at issue. It remains to consider the position of the two lay assessors.

32. In order to establish whether a body can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence (see, inter alia, the Campbell and Fell judgment of 28 June 1984, Series A no. 80, pp. 39-40, para. 78).

As to the question of impartiality, a distinction must be drawn between a subjective test, whereby it sought to establish the personal conviction of a given judge in a given case, and an objective test,aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, amongst other authorities, the De Cubber judgment of 26 October 1984, Series A no. 86, pp. 13-14, para. 24).

In this case it appears difficult to dissociate the question of impartiality from that of independence.

33. The proceedings instituted in the Housing and Tenancy Court concerned essentially the question whether the negotiation clause was to be retained (see paragraphs 10 and 12 above) and not how it was to be applied (the fixing of the rent payable by Mr Langborger).

34. Because of their specialised experience, the lay assessors, who sit on the Housing and Tenancy Court with professional judges, appear in principle to be extremely well qualified to participate in the adjudication of disputes between landlords and tenants and the specific questions which may arise in such disputes. This does not, however, exclude the possibility that their independence and impartiality may be open to doubt in a particular case.

35. In the present case there is no reason to doubt the personal impartiality of the lay assessors in the absence of any proof.

As regards their objective impartiality and the question whether they presented an appearance of independence, however, the Court notes that they had been nominated by, and had close links with, two associations which both had an interest in the continued existence of the negotiation clause. As the applicant sought the deletion from the lease of this clause, he could legitimately fear that the lay assessors had a common interest contrary to his own and therefore that the balance of interests, inherent in the Housing and Tenancy Court's composition in other cases, was liable to be upset when the court came to decide his own claim.

The fact that the Housing and Tenancy Court also included two professional judges, whose independence and impartiality are not in question, makes no difference in this respect.

36. Accordingly, there has been a violation of Article 6 para. 1 (art. 6-1).

B. Lack of a public hearing and public pronouncement

37. Mr Langborger also complained of a lack of a public hearing and of the fact that there was no public pronouncement of the Housing and Tenancy Court's decision.

In accordance with the Commission's opinion and in the light of the conclusion reached in the preceding paragraph, the Court does not consider it necessary to rule on a complaint which, moreover, the applicant has not pursued before it.

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FOR THESE REASONS, THE COURT

1. Holds by seventeen votes to three that there has been a violation of Article 6 para. 1 (art. 6-1) of the Convention;

2. Holds unanimously that there has been no violation of Articles 8 and 11 (art. 8, art. 11) of the Convention and of Article 1 of Protocol No. 1 (P1-1);

3. Holds unanimously that it is not necessary to examine the case also under Article 13 (art. 13) of the Convention;

4. Holds by nineteen votes to one that the respondent State is to pay to the applicant, in respect of costs and expenses, the sum of 63,475 (sixty-three thousand four hundred and seventy-five) Swedish crowns;

5. Dismisses unanimously the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 22 June 1989.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) dissenting opinion of Mr Pinheiro Farinha;

(b) dissenting opinion of Mr Pettiti and Mr Valticos;

Initialled: R. R.

Initialled: M.-A. E.

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