PROCEDURE

The case originated in an application (no. 23883/06) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Swedish nationals, Mr Adnan Khurshid Mustafa and Mrs Weldan Tarzibachi (“the applicants”), on 12 June 2006.

The applicants were represented by Mr U. Isaksson, a lawyer practising in Stockholm, and by Mr P.-G. Nyström and Ms S. Wikström, lawyers of the Stockholm Tenants' Association. The Swedish Government (“the Government”) were represented by their Agent, Mr C.-H. Ehrenkrona, Ministry for Foreign Affairs.

The applicants alleged that their eviction from their flat following their refusal to remove a satellite dish resulted in violations of Articles 8 and 10 of the Convention.

On 22 June 2007 the President of the Third Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.