EHRM, 16-12-2008, nr. 23883/06

The renting of a flat is regulated primarily in Chapter 12 of the Land Code.

Chapter 12, 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.

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 on service.

Section 23 prescribes, inter alia, that a tenant may not use the flat for a purpose other than that intended. According to 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.

Section 25 contains provisions on disturbances and demands on the tenant for keeping the flat sound, orderly and in good condition. Subsection 1 provides:

Disturbances and failure to meet the demands 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 can also constitute a failure to fulfil the requirements for keeping the flat sound, orderly and in good condition.

It follows from section 46 that, if the landlord has given notice of cancellation of the tenancy agreement, the tenant can still be entitled to prolongation of the agreement. However, subsection 1 of section 46 lists a number of situations in which the tenant loses the right to prolongation. The first situation, laid down in subsection 1(1), is the forfeiture of the tenancy. Section 42 stipulates the conditions when 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 invoked by the landlord and applied by the Court of Appeal in the present case. It concerns the tenant's neglect of obligations. If the obligations are neglected to such a great extent that it is not reasonable for the tenancy agreement to be prolonged, the tenant can lose the right to such prolongation.

The preparatory works to the latter provision state that the demands on a tenant's orderliness must be high in order to make it possible for the landlord to maintain good order and condition on the property (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).

Negligence can be, for example, a failure to pay rent, subletting without permission, a refusal to grant the landlord access to the flat, the depositing of rent without valid reasons, residential disturbances, a failure to keep the flat sound, orderly and in good condition, and the breach of clauses in the tenancy agreement.

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 prolongation of a tenancy agreement. A decision by a Rent Review Board in a prolongation 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 compared with section 49. No appeal lie against the court's decision, according to section 10 of the Svea Court of Appeal Rent Cases Judicial Procedure Act (Lagen om rättegången i vissa hyresmål i Svea hovrätt, 1994:831).

Chapter 1, section 3, subsection 3 of the Constitutional Law on Freedom of Expression (Yttrandefrihetsgrundlagen) states the following:

Chapter 2, section 1, subsection 1 of the Instrument of Government (Regeringsformen) provides, inter alia, as follows:

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. According to section 13, freedom of expression and information may only be restricted having regard to national security, national supply of goods, 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.

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.

The Government submitted that the complaint was incompatible ratione materiae or manifestly ill-founded. They argued that the dispute in the case had been limited to the question of the actual placing of the satellite dish, having regard to, primarily, contractual obligations. The alleged interference had not arisen as an effect of a ruling by a public authority on the right to receive information or even the right to use or own a satellite dish. Instead, it came about only as an effect of the Court of Appeal's interpretation and application of an obligation in a contract between two private parties within the framework of private litigation. In any event, the Swedish authorities would only be responsible to the extent that the State had a positive obligation to protect the rights of the applicants in a case of this character. In this connection, the Government was of the opinion that the Court of Appeal had struck a fair balance between the competing interests of the landlord and the applicants and that there did not exist a positive obligation to protect the applicants' right to receive information from the interference of others. Allegedly, therefore, there had not been an interference by a public authority within the meaning of Article 10 of the Convention.

If the Court were to find that Article 10 was applicable and had been interfered with, the Government argued that the interference was prescribed by law, more precisely Chapter 12 of the Land Code, and that it served the legitimate aim of protecting the rights of others, including those of the landlord, other tenants and third parties. As to the question whether the measure had been ‘necessary’ within the meaning of Article 10, they claimed that a fair balance had been struck between the landlord's right to property and interest in upholding order and good conditions on his property, on the one hand, and the applicants' right to receive information by means of a private satellite dish, on the other. Moreover, the proceedings had been fair at every level, the two instances involved having given extensive and detailed reasons after holding hearings and inspecting the satellite installation in question. Thus, having regard also to the margin of appreciation, the alleged interference had been proportionate to the legitimate aim pursued and ‘necessary’ in terms of Article 10 § 2.

The applicants submitted that the grounds for contesting the landlord's action had not been only their denial that the placement of the satellite was in breach of the lease, but also that that action infringed their right to freedom of information under the Swedish Constitution and Article 10 of the Convention. They further claimed that the Court of Appeal had not balanced the various interests in any real or actual sense. It had not attached proper significance to the applicants' right to freedom of information and had failed to take into account that there had been no safety risks in the individual case, instead allowing the landlord to make general risk assessments. The applicants therefore claimed that there had been an interference with their rights under Article 10. This had occurred as a consequence of the Court of Appeal's application of the law and, thus, the State's exercise of judicial power in a civil law dispute. Consequently, the State could not evade its responsibility in the matter.

The applicants further asserted that the Court of Appeal's decision lacked a basis in law, as their satellite installation, not affixed to the body of the building, had not violated rule 13 in the tenancy agreement and thus not the Land Code. Furthermore, the interference in the case had not been ‘necessary’, as a fair balance between the competing interests had not been struck. In this respect, they reiterated that their rights under Article 10 had been disregarded and that no individual safety assessment had been made. Moreover, broadcasts from certain TV channels of particular importance to them due to their cultural background were available exclusively through a satellite dish. This had not been disputed in the domestic proceedings. Finally, there had been no margin of appreciation, as no vital State interests had been at issue. Instead, the reasons given by the Court of Appeal related to the landlord's interests. In sum, the interference had not been proportionate or ‘necessary’ within the meaning of Article 10 § 2.

The applicants claimed 66,000 Swedish kronor (SEK; approximately 6,500 euros (EUR)) in respect of pecuniary damage. Their claim concerned the increased costs of the first applicant's journeys to and from work for a two-year period following their move to Västerås. In respect of non-pecuniary damage, they claimed SEK 50,000 (about EUR 5,000) each or other amounts which the Court considers reasonable.

The Government contested the claim for pecuniary damage, stating that the applicants could have avoided the additional travel costs by accepting the landlord's offer to remain in the flat. As regards non-pecuniary damage, the Government left it for the Court to assess.

The Court considers that the first applicant must have sustained pecuniary damage on account of the longer journeys to and from work and finds this claim reasonable. It therefore awards it in full. Further, the Court finds it appropriate to make an award for non-pecuniary damage. Ruling on an equitable basis, it awards the applicants EUR 5,000 jointly under that head.

The applicants also claimed SEK 229,774 (approximately EUR 22,500) for the costs and expenses incurred after the conclusion of the domestic proceedings. This amount included SEK 216,575 (EUR 21,000) in lawyers' fees for 158 hours of work; the remainder consisting mainly (SEK 12,131) of translation expenses.

The Government found the applicants' claims excessive. They maintained that reasonable compensation for costs should not exceed SEK 66,000 (EUR 6,500) exclusive of VAT. In addition, SEK 1,000 (EUR 100) was acceptable for expenses.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10,000, inclusive of VAT, covering costs under all heads for the proceedings before the Court.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.