Objective and subjective criteria
PROCEEDINGS BEFORE THE COMMISSION 25. Mr Langborger ’ s application to the Commission (no. 11179/84) was lodged on 7 September 1984. He alleged that he had not been given a public hearing by an independent and impartial tribunal. He also complained of a breach of his rights to respect for his home, his freedom of association and enjoyment of his possessions and of the lack of an effective remedy before a national "authority". He relied on Articles 6 para. 1, 8, 11 and 13 (art. 6-1, art. 8, art. 11, art. 13) of the Convention and Article 1 of Protocol No. 1 (P1-1). 26. The Commission found the application admissible on 9 July 1986. In its report of 8 October 1987 (Article 31) (art. 31), it expressed the unanimous opinion that: - there had been a failure to comply with the requirements of Article 6 para. 1 (art. 6-1) of the Convention regarding impartiality; - there had been no violation of Articles 8 and 11 (art. 8, art. 11) of the Convention and Article 1 of Protocol No. 1 (P1-1); - it was not necessary to consider separately the complaint based on Article 13 (art. 13) of the Convention, nor to determine whether there had been a failure to observe Article 6 para. 1 (art. 6-1) as regards the requirement of a public hearing and a public pronouncement of the judgment. The full text of the Commission ’ s opinion is reproduced as an annex to the present judgment. 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. III. ALLEGED VIOLATION OF ARTICLES 8 AND 11 (art. 8, art. 11) OF THE CONVENTION 38. Mr Langborger further alleged a breach of his right to respect for his "home" within the meaning of Article 8 (art. 8). He considered that the power, conferred on the Tenants ’ Union, to negotiate on his behalf the amount of the rent for the flat in which he lived was incompatible with the requirements of this provision because the rights and obligations deriving from the lease were, in his view, rooted in the notion of "home". He also complained of a violation of his freedom of association guaranteed under Article 11 (art. 11), on the ground that he had to accept, against his will, the services of the Tenants ’ Union in the negotiations, for which services he also had to pay. The Government disputed these views. 39. The Court finds that the questions raised under these heads do not come within the scope of the Articles relied upon. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1) 40. According to Mr Langborger, the legal obligation to make financial contributions to the Tenants ’ Union (see paragraphs 7 and 16 above) also entails a deprivation of possessions contrary to Article 1 of Protocol No. 1 (P1-1), according to which: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 41. In the Court ’ s view, the obligation to pay the small sums involved cannot be regarded as inconsistent with this Article (P1-1). V. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION 42. Finally, the applicant relied on Article 13 (art. 13) of the Convention, which provides as follows: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." He claimed that he did not have any effective remedy against the various breaches of the Convention of which he complained. 43. With regard to the alleged violations of Article 6 (art. 6) of the Convention, the Court, like the Commission, does not find it necessary to examine the case under Article 13 (art. 13), whose requirements are less strict than, and are here absorbed by, those of Article 6 (art. 6) (see, inter alia, the Pudas judgment of 27 October 1987, Series A no. 125-A, p. 17, para. 43). Moreover, Article 13 cannot here be taken in conjunction with Articles 8 and 11 (art. 13+8, art. 13+11) of the Convention, which are themselves inapplicable (see paragraphs 38-39 above), or with Article 1 of Protocol No. 1 (art. 13+P1-1) because the complaint based on that provision has not given rise to an "arguable" claim (see paragraph 41 above). VI. EXAMINATION OF THE COMPLAINTS VIEWED TOGETHER 44. After having considered the different Articles separately, the Court examined the case in the light of all the complaints viewed together. This appraisal did not lead it to alter the various conclusions set out above. VII. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 45. Mr Langborger sought just satisfaction under Article 50 (art. 50), according to which "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Work carried out by the applicant 46. He claimed in the first place 30,000 Swedish crowns (SEK) for his work on the case. On this question he referred to a rule which was said to exist in Swedish law, but did not state whether his claim related to the proceedings in the national courts, the proceedings before the Convention organs, or both. The Government disputed the claim, while the Commission left the matter to be decided by the Court. 47. The Court affords "just satisfaction" only "if necessary", and without being bound by domestic rules. Moreover the applicant, who was assisted by counsel both in Sweden and in Strasbourg, has not established why it is necessary to compensate him for his own work. B. Pecuniary damage 48. Mr Langborger also claimed 50,000 SEK for the pecuniary damage which he allegedly sustained as a result of the unfavourable method used to calculate his rent. 49. It is not for the Court to speculate as to what the outcome of the contested proceedings would have been if the violation which it has found had not occurred, and there is nothing to show that a decision taken by a court of a different composition would have been in the applicant ’ s favour. C. Non-pecuniary damage 50. The applicant requested in addition 100,000 SEK in respect of non-pecuniary damage. He argued that a purely nominal award could not suffice. 51. The Court considers that the finding of a breach of Article 6 (art. 6) constitutes in itself adequate just satisfaction in this respect. D. Costs and expenses 52. Finally, Mr Langborger requested reimbursement of 104,000 SEK in lawyer ’ s fees and 13,475 SEK in general and travelling expenses. As regards the first claim, the Government did not dispute the hourly rate of 500 SEK, but considered excessive the total number of hours (208) which Mr Grennberg was said to have devoted to preparing the file. For his part, the Commission ’ s Delegate stressed that much time had been spent studying questions of secondary importance. 53. The Court notes that it has declared only one of the applicant ’ s complaints founded and, making an assessment on equitable grounds, considers it appropriate to award the applicant, by way of reimbursement of the fees in question, 50,000 SEK, to which should be added 13,475 SEK in respect of general and travelling expenses.
Limiting its examination to the Housing and Tenancy Court – which, when it decided the applicant’s case, 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 – which was the last national organ to determine both the questions of fact and the legal issues in dispute, the Court held that there had been a violation of Article 6 § 1 of the Convention in the present case. It noted in particular that, 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. 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. As regards the lay assessors, the Court considered it difficult in this case to dissociate the question of impartiality from that of independence. While the latter appeared in principle extremely well qualified to participate in the adjudication of disputes between landlords and tenants and the specific questions which may arise in such disputes, the Court accepted, however, that their independence and impartiality might be open to doubt in a particular case. In the present case there was no reason to doubt their personal impartiality in the absence of any proof. As regards their objective impartiality and the question whether they presented an appearance of independence, however, the Court noted 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 were not in question, made no difference in this respect.