SAGVOLDEN v. NORWAY - 21682/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 1148 (20 December 2016)

In the case of Sagvolden v. Norway,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Erik Møse,
          Khanlar Hajiyev,
          Faris Vehabović,
          Yonko Grozev,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 29 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 21682/11) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian national, Ms Torill Sagvolden (“the applicant”), on 1 April 2011.

2. The applicant was represented first by Mr L. Mørk and therafter by Mr P. Danielsen, who were lawyers practising in Oslo. The Norwegian Government (“the Government”) were represented by Mr M. Emberland of the Attorney General’s Office (Civil Matters), as their Agent.

3. The applicant complained under Article 6 § 1 of the Convention on account of the absence of an oral hearing before the national courts in proceedings relating to an order of compulsory sale of her apartment. Under Article 8, the applicant further complained that the order had not been “necessary”.

4. On 12 January 2015 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Factual background

5. On 26 March 2004 the applicant acquired an apartment in Housing Cooperative (“borettslag”) X. At her request, on 29 March 2004 its Governing Board (hereinafter “the Board”) approved the applicant’s acquisition. Before she moved in, the Board became aware that the applicant’s son, Mr A, had caused serious problems in Housing Cooperative Y, where the applicant had previously been part owner and resident and where in recent years her son had cohabited with her. Housing Cooperative X therefore became particularly concerned that only the applicant move into the cooperative and informed her that it contemplated withdrawing its approval of her as a part owner. It asked her to make a written undertaking to the effect that Mr A would not move to the apartment in X. In this connection, the Board referred to the fact that in her request for approval of her part ownership she had indicated that her household would consist of one person.

6. After a brief exchange of correspondence between Housing Cooperative X and the applicant’s Attorney B., he stated in a letter of 26 May 2004 that “[o]n behalf of [the applicant] it is hereby confirmed that it is she, not her son [Mr A] who will move into the apartment nr 2036 in Z Street 14 C as soon as it will be ready for takeover on 5 July 2004”. The letter further confirmed the correctness of the information previously provided that the household would “consist of one person”. Against this background, the Board maintained its earlier approval of the applicant as a part owner.

7. By a letter of 23 May 2006, Attorney K., on the behalf of the Housing Cooperative, pointed out to the applicant that Mr A seemed to have moved to her apartment, in breach of the conditions for the approval of her as part owner. K. referred to the fact that the Board over a long period had received several complaints regarding Mr A’s conduct at the Housing Cooperative and to his conviction by Oslo City Court (tingrett) of 10 March 2006 for violent assault and frightening and disturbing behaviour vis-à-vis neighbours at Z Street 14 B and 14 C; and the fact that it followed from the judgment that Mr A’s residence was Z Street 14 C. In a letter of 2 June 2006 Attorney B. disputed inter alia that Mr A had an address in Z Street 14 C.

8. On 2 September 2008, the Board held a meeting. According to the minutes it was decided that its “secretary was to inform Attorney [K.] of the new situation and to request him to initiate eviction proceedings against Sagvolden”.

9. On 14 April 2009, Attorney K. sent to the applicant on behalf of the Housing Cooperative a letter ordering her to sell her part (salgspålegg) in accordance with section 5-22 of the Housing Cooperative Act 2003 (burettslagslova, see paragraph 75 below). K. referred to his previous correspondence and to Mr A’s conviction by the City Court of 23 June 2008 (see paragraph 18 below), by which he was sentenced to eighteen days’ imprisonment for violent assault and frightening and disturbing behaviour vis-à-vis neighbours in Housing Cooperative X. He further referred to the fact that Mr A on several occasions had been imposed judicial restraining orders prohibiting him to contact four members of the Housing Cooperative, the last such order with effect until 5 April 2009 (see paragraph 38 below). Attorney K. added that the conditions for eviction under section 5-23 had been fulfilled, but that for the time being it had been deemed sufficient to order sale of the apartment.

10. Upon expiry of the three month time-limit for sale, set pursuant to section 5-22 of the Housing Cooperative Act, Attorney M., who had succeeded Attorney B. as the applicant’s representative, responded by a letter of 15 July 2009 that the order of sale would not be complied with.

B. Particulars of Mr A’s convictions

1. The Oslo City Court’s judgment of 10 March 2006

11. On 29 December 2005 Mr A had been indicted under Article 390A of the Penal Code for having by frightening or disturbing behaviour or other inconsiderate behaviour violated the right of another person to be left in peace. According to the indictment:

“(a) At 00h00 on Friday, 29 July 2005, at [Z Street] 14B, Oslo, he came walking fast towards Mr [H.F.] and told him that ‘he ought to watch out’ and ‘that he would keep an eye on him’. These affirmations were in the circumstances frightening to Mr [H.F.].

(b) On Saturday, 30 July 2005, at [Z Street] 14C, Oslo, he told Mrs [T.L.B.]: ‘The vengeance is sweet, the vengeance is best cold, it may happen anytime and anywhere, it may not necessary be me directly.’ This statement was in the circumstances frightening to Mrs [T.L.B.].

(c) On Monday, 12 September at [Z Street] 14C, Oslo, he contacted Mrs [T.L.B.] and stated amongst other things: ‘Watch out, you have not seen anything yet’. This statement was in the circumstances frightening to Mrs [T.L.B.]”

He was also indicted under Article 228(1) (later changed to Article 282(2)) of the Penal Code for having committed violent assault against another person or in any other way having assailed him bodily:

“At 16h00, on Sunday, 13 November 2005 at [Z Street] 14C, Oslo, he grabbed the arms of Mr [C.B.] [son of Mrs T.L.B.] and flung him around making him fall on a bicycle. Thereafter he again grabbed him and pushed him into a wall.”

12. By an additional indictment of 10 February 2006, Mr A was indicted with another offence under Article 390A of the Penal Code:

“At around 11.30 a.m. on Wednesday, 21 December 2005, outside the shopping mall in [Y Road], he went towards Mr [E.L.] as the latter came out of the shopping mall carrying a full shopping basket on his way to his car. He followed Mr [E.L.] while talking to him loudly and went up to his face while stating inter alia ‘I will beat the shit out of you ... you fat donkey’, or similar. He placed himself in front of the car, thus preventing Mr [E.L.] from putting his shopping items inside his car, while affirming ‘I won’t move’.”

13. In a judgment of 10 March 2006, the City Court, after holding an oral hearing at which Mr A was represented by a lawyer and witnesses were heard, convicted Mr A of the charges and sentenced him to 120 days’ imprisonment. The sentence included the conditional part of a sentence imposed by the City Court in a judgment of 31 October 2003 by which Mr A had been convicted of an offence under Article 390A of the Penal Code.

14. In meting out the sentence, the City Court attached considerable weight to the fact that Mr A had twice (last time in 2003) been convicted for a number of offences of a similar nature, that he had actively approached the victims, and that his conduct to a great extent affected people in their homes and closest environment, thereby destroying the victims’ and their families’ feeling of safety and wellbeing at their homes and in the near vicinity. A further aggravating factor was the extent, the intensity and duration of his conduct and Mr A’s inability and unwillingness to cease his criminal conduct.

15. Mr A did not lodge an appeal against his above conviction and sentence which thus became final.

2. The City Court’s judgment of 23 June 2008

16. On 22 January 2008 Mr A was inter alia indicted under Article 228(1) of the Penal Code for having committed the following violent assaults:

“(a) At around 12h00, on Wednesday, 25 April 2007, at Z Street 14C, Oslo, he took a strangulation grip on T.L.B.

(b) At around 21h15 on Wednesday, 12 September 2007, outside Z Street 14B, Oslo, he punched Mr H.F. in his chest with a clenched fist. ...”

17. In an additional indictment of 14 April 2008, Mr A was charged under the same provision as follows:

“At around 18h15 on Saturday, 12 January 2008, in the staircase of the garage building of Z Street 14C, Oslo, he hit and/or pushed Mr D.H. in the chest with clenched fists so that the latter fell backward towards a wall, whereupon he pulled Mr D.H. by his arm/or jacket into the building.”

18. By a judgment of 23 June 2008, the City Court convicted Mr A of the above charges. It found proven, not that he had taken a strangulation grip on Mrs T.L.B., but that he had intentionally pushed her against a door or a wall with one hand; that he had pushed Mr H.F. or hit him in his chest but not that he had hit him hard; and that he had held around Mr D.H.’s chest and had pushed him against the wall, both in the staircase and in the garage but that he had not hit Mr D.H. The City Court observed that, while all three offences would normally warrant the imposition of fines, Mr H.F.’s advanced age and frailness were an aggravating factor as were the number of the offences adjudicated as well as the fact that Mr A had been convicted in the past for similar and in part more serious offences. He had moreover not understood the gravity of his actions. The City Court sentenced Mr A to eighteen days’ imprisonment.

19. Mr A did not lodge an appeal against the above judgment which thus became final.

C. Judicial order of compulsory sale

1. The City Court

20. On 2 September 2009 the Housing Cooperative issued a warning of compulsory sale (section 4-18 of the Enforcement Act, tvangsfullbyrdelsesloven) and on 1 October 2009 it instituted proceedings against her before the relevant section (Oslo byfogdembete) of the Oslo City Court (tingrett), to obtain an order of compulsory sale of her apartment, from a specialised judge entrusted inter alia with such matters.

(a) The applicant’s pleadings

21. The applicant, represented by the same lawyer as before the European Court, reiterated that according to section 4-8 of the Housing Cooperative Act the case ought to be examined under an ordinary procedure (i søksmåls former - which in principle included an oral hearing if the respondent’s objections against compulsory sale was not “clearly groundless”). In her written pleadings she sought to address this question legally and factually, while pointing out that a complete presentation of evidence would be made at a later stage (i behandlingen av søksmålet). She submitted notably as follows.

22. In the first place the applicant requested the City Court to dismiss the case on the ground that the Board’s decision had not provided a legal basis for Attorney K. to initiate proceedings against her for compulsory sale. The decision had stated “Sagvolden”, not Torill Sagvolden, and “eviction”, not compulsory sale (see paragraph 8 above).

23. She also argued that it would create an unreasonable situation if the Housing Cooperative X’s interest in her removal were to carry more weight than her needs at the age of eighty in not being put on the street. She had previously moved from the previous Cooperative Y to Cooperative X and had left old disputes behind her. However, because of a warning system within the OBOS system (a cooperative building association owned by its 330.000 members and which included both Cooperatives), already before moving into X she had been persecuted by allegations related to Y. There would hardly be any alternative for her. The situation had evolved over time and she ought to be entitled to admit Mr A in her household. Due to her age, she had become increasingly dependent on his assistance.

24. The criminal matters pertaining to Mr A dated far back in time and could not justify compulsory sale, especially since the situation had improved and both the applicant and Mr A were open to negotiate on other appropriate default measures. The most recent offence dated from January 2008. The decisions on restraining orders (see paragraph 38 below) could not carry any weight since the threshold for prohibition on contact was low and did not require a preponderance of probabilities. The alleged harassment and threats was in great part due to a paranoid perception of some of the neighbours.

25. The applicant requested the City Court, before conducting any procedure on the merits, to first decide on her request that the case be dismissed.

(b) The City Court’s decision

26. By a decision (kjennelse) of 26 April 2010, the City Court upheld the Housing Cooperative X’s request for an order of compulsory sale of the applicant’s apartment, to be carried out by an official assistant (medhjelper).

27. The City Court first dismissed the applicant’s contention that there was no decision by the Board which could constitute a basis for compulsory sale. The mention in the decision of “Sagvolden” could not be understood in any other way than as referring to the applicant. From section 5-23 of the Housing Cooperative Act, it clearly followed that it was the applicant, as the owner of the apartment in question, who was the person whom the Housing Cooperative ought to address in all cases concerning the owner’s duties and responsibilities. It was the owner’s breach of such that could justify an eviction order. It followed from the case-law and legal doctrine that the owner was to be identified with the members of his or her household, both in the sense that faults on their part were relevant and that an eviction measure would also concern them; it was not possible to limit a request for an eviction order to concern only one or some of the members of a given household or to concern only the owner and not the other occupants.

28. The City Court further rejected the applicant’s argument that the Board’s decision did not concern compulsory sale (“tvangssalg”) but only eviction (“utkastelse”). The Housing Cooperative’s lawyer had stated that the Board was of the view that the conditions for eviction had been fulfilled but that the Cooperative had opted to limit its demand by initiating proceedings for compulsory sale. Since the Board’s decision on eviction implied compulsory sale, to proceed with the latter and less extensive measure first clearly fell within that decision. This did not exclude that a request for an eviction order be made subsequently.

29. No arguments had been raised by the applicant suggesting that the Housing Cooperative’s demand ought to be dismissed. Nor was there anything to indicate that Attorney K. had exceeded the powers conferred on him by the Board.

30. Moreover, no objection had been made as regards the contents of the plaintiff’s claim for an order of compulsory sale or about the requirements as to warnings. The formal requirements for seeking an order of compulsory sale had been fulfilled (sections 5-22 and 5-23 of the Act).

31. The condition for requiring sale was that the owner of the part in question had “substantially defaulted” his or her obligations (“misheld pliktene sine vesentleg”). The request for compulsory sale ought to be referred for examination according to the ordinary procedure applicable to ordinary appeals (which in principle include an oral hearing) if, within the statutory time limit, objections had been raised against compulsory sale that could not be regarded as “clearly groundless”.

32. The assessment of whether “substantial default” had occurred concerned not only the owner’s conduct but also that of other members of his or her household, as the owner undoubtedly ought to be identified with them. In the instant case, the circumstances that could justify enforcement measures related to the conduct of Mr A.

33. In this regard, the City Court observed that it was undisputed that the reason why the applicant had been obliged to leave her apartment in Housing Cooperative Y had been the serious problems that her son had caused there. In applying to the Board of Housing Cooperative X for its approval to become a new part owner, she had requested approval for one person only. Accordingly, it ought to be assumed that only she would occupy the apartment. Before moving in, she had confirmed through her lawyer that her household consisted of one person. Previously she had written to the Housing Cooperative X without replying to questions of whether her son would move in. It was only after the Housing Cooperative X’s request to the applicant of 19 May 2004 for confirmation that Mr A would not move to the estate that Attorney B. had responded in the affirmative by letter of 26 May 2004. She was then well informed that it was precisely the matters regarding her son which was the reason for the Board’s request for confirmation that he would not move into the flat.

34. According to section 16 of the then applicable Housing Cooperative Act, an approval of a new part owner could be withdrawn within a year if the owner had provided inaccurate, or withheld, substantial information and the owner ought to have been aware of this. In view of the situation at the material time and the applicant’s confirmation, the Housing Cooperative X could assume that the applicant had committed herself to moving in alone and in any event without her son. Both the Board’s approval and her confirmation had dated approximately six years back in time and it was only at present that she for the first time had alleged that the Housing Cooperative had forced her to make the said declaration by threatening to take unlawful action. On this point, the City Court observed that the only measure which the Housing Cooperative X contemplated was to refuse approval of the applicant as a new part owner and there was nothing to indicate that it had been unlawful to envisage such a measure.

35. Furthermore, where the board of a Housing Cooperative had become aware that problems with a part owner had occurred in another Housing Cooperative, it ought to be able to take the matter into account in its assessment of whether or not to approve that person as a new part owner. There were no elements to suggest that the information received by Housing Cooperative X had been obtained in an unlawful manner. Whether and to what extent any outsiders had acted unlawfully was not for the City Court to consider in the present case.

36. It was unclear at what time Mr A had moved into the applicant’s apartment. According to the Oslo City Court’s judgment of 10 March 2006, Mr A had stated that he was living in Z Street 14C. From the same judgment it appeared that the criminal offences for which he was convicted had occurred in Z Street 14B and 14C in July 2005. It was also undisputed by the applicant that she had been cohabiting with Mr A in her apartment for an extended period. However, since the applicant, as a part owner, was responsible for the conduct by members of her household as well as her visitors, it was not decisive when Mr A had moved in.

37. The City Court noted that it was clearly established that Mr A, by the judgments of 10 March 2006 and 23 June 2008 respectively, had been convicted of having committed violent assault and frightening behaviour against three neighbours at Z Street 14B and 14C. The episodes in the 2006 judgment had occurred on 29 and 30 July, 12 September and 13 November 2005. The 2006 judgment described inter alia Mr A as a person who perceived everyone in respect of whom there was a contradiction or a disagreement as being part of a conspiracy against him (for further details see paragraph 54 below). His use of violence was perceived as unprovoked. He had infringed people at their homes, in such a way as to destroy the victims’ and their families’ sense of safety and wellbeing at their homes and nearby. According to an assessment of Mr A made by a court appointed expert in 2003, he extensively and systematically had perceptions and experiences of conspiracy which were almost impossible to influence and which according to the 2006 judgment were still prevailing at that time.

38. The judgment of 23 June 2008 had concerned episodes from April and September 2007 and January 2008 involving violations of Article 228(1) of the Code of Penal Procedure. Also in this judgment it had been found proven that Mr A had generally behaved in an intensive and intrusive manner. He was tall and strong, went very close to the person with whom he wanted to discuss and shouted to them with a load and aggressive voice. He was moreover inclined to block the passage of people he wanted to talk to and had a low threshold for taking one step further and grab or push people. This he did in a manner which was so aggressive as to make people anxious of the possibility of further and more serious violence being perpetrated.

In addition to the above-mentioned judgments, he had been imposed restraining orders by the police prohibiting him from visiting the following neighbours:

- Ms T.L.B. and her children, for the period from 3 May 2007 to 3 May 2008;

- Mr H.F., from 20 September 2007 to 20 September 2008;

- Mr D.H., from 22 February to 22 August 2008; and

- Mr J.-E.S., from 5 November 2008 to 5 April 2009.

39. All these matters showed a person who over a long period had displayed frightening and disturbing behaviour vis-à-vis a number of neighbours in the Housing Cooperative where he was living with his mother, and where the incidents had led to convictions and prohibitions on contact over longer periods. It was also undisputed that Mr A had reacted with a particularly high degree of intensity vis-à-vis the Board and some of its members.

40. As regards the applicant’s allegation that the conditions had improved and that both she and Mr A were prepared to negotiate on alternative default measures, the City Court noted that the Housing Cooperative’s communications to the applicant had led to tirades of phone calls and e-mails with accusations against members of the Board and complaints to different public institutions. This was also supported by the description made by the City Court in its judgment of 10 March 2006. As the applicant had failed to indicate what other appropriate default measures could consist of, the respondent Housing Cooperative could not be required to take further initiatives in this case.

41. Whether the conditions for ordering compulsory sale had been fulfilled essentially depended on whether substantial default and conduct in breach of section 5-23 had materialised at the time when the order of sale was issued (namely 14 April 2009).

42. Considering the circumstances of the case as a whole, the City Court found that by reason of her admission of Mr A as a member of her household and of his conduct over a longer period, the applicant had substantially defaulted on her obligations as a part owner. Furthermore, Mr A’s conduct had caused serious disturbance to other occupants and had violated section 5-23 of the Housing Cooperative Act. For this reason, the issuing of a warning before compulsory sale had not been a requirement.

43. In the City Court’s view the applicant’s interests on account of her old age ought not to carry more weight than those of other occupants in the Housing Cooperative. It found it established that her obligations as a part owner had been seriously defaulted, in any event since 2005. Whilst it was understandable that it was more difficult for a person aged eighty to find and move to a new home, this could not be decisive in this case where neighbours had been harassed over a number of years. Despite her own confirmation that she moved in alone, the applicant had let her son live in the apartment with all the problems this had caused to other occupants. Therefore, she ought to bear the consequences of her own choice even though this were to make it problematic for her to find another house within the OBOS Housing Cooperative system.

44. The Board’s decision on eviction had been taken on 2 September 2008, around two months after Mr A’s conviction of 23 June 2008 and eight months after his commission of one of the offences. This was his second conviction for offences committed against neighbours while the first had concerned offences committed in 2005. The Board had taken and followed up its decision with reasonable expedition.

45. Moreover, the applicant’s contention that the police had acted in breach of their duty of confidentiality, by providing information to Housing Cooperative X concerning Mr A in relation to Z Street 14 C, could have no bearing on the present case.

46. Considering all of the applicant’s pleas against compulsory sale as being “clearly groundless” in the sense of sections 5-22, cf. section 4-8(2) of the Act, the City Court upheld the Housing Cooperative’s claim and ordered that sale take place by an assistant.

2. The High Court

(a) The applicant’s pleas

47. The applicant appealed against the City Court’s decision to the Borgarting High Court (lagmannsrett), complaining of the former’s assessment of the evidence, its application of the law and procedure. Maintaining in the main her arguments before the City Court, she requested that the Housing Cooperative X’s action be dismissed; in the alternative, she argued that the request for compulsory sale was unlawful in that no evidence had been adduced to show that she had defaulted her obligations vis-à-vis the Housing Cooperative or, in any event, that any such default had been substantial. In the further alternative, she submitted that, after refusing to dismiss the suit, the City Court had failed to refer her case for examination according to the ordinary procedure (involving in principle an oral hearing) and had wrongly considered her objections against compulsory sale as being clearly groundless; therefore, she asked the High Court to quash the City Court’s decision and to refer the case back for re-examination in accordance with the ordinary procedure. The applicant submitted that she could not cope with the thought of having to move house again and that she never believed that she would have to do so. The apartment really suited her and the fact that her son lived with her had made her feel that she received the help and care she needed in daily life.

(b) The High Court’s decision

48. By a decision of 5 August 2010 the High Court rejected her appeal. From the outset it observed that sufficient light had been shed on the case for it to determine the appeal on the basis of the written case-file (Article 29-15(1) of the Code of Civil Procedure).

49. As regards the applicant’s allegations that the imposition of compulsory sale suffered from deficiencies, the High Court found it clear that the Board’s decision provided an adequate basis for notifying her of the measure in accordance with section 5-22 of the Housing Cooperative Act.

50. The High Court did not find it necessary to take a stance on whether the terms “eviction case” ought to be read as relating to the vacating of premises (compare paragraph 28 above). In that event, as also assumed by the City Court, it was obvious that there was a possibility to opt for the less intrusive measure, namely the imposition of an order to sell the flat. The above decision most probably was an acknowledgment of a request by the Board to its attorney to take the necessary steps to bring the Cooperative’s relationship with the applicant to an end. More than this could not be required, bearing in mind especially the long historical background to the case.

51. Nor could the applicant succeed with her argument that she had not been sufficiently identified because the Board only used her surname. As also pointed out by the City Court, as for proceedings concerning eviction it was also the situation for those on compulsory sale that only the owner of the part of the Housing Cooperative in question could be the addressee. It could not be assumed that any other intention lay behind the Board’s decision.

52. Finally, the High Court shared the City Court’s view that a prior warning had not been a prerequisite for obliging her to sell her part. Since, in accordance with the findings below, the conditions of serious disturbance and nuisance had been fulfilled for obliging her to vacate the flat pursuant section 5-23(1) of the Act, the requisite of prior warning under section 5-22(1) of the Act did not apply.

53. Like the City Court, the High Court found it established that the applicant’s son, Mr A, for years had displayed conduct vis-à-vis the household’s neighbours constituting serious disturbance and nuisance to them. The City Court judgments of 10 March 2006 and 23 June 2008 concerned several offences under Articles 228 and 390A of the Penal Code, all of which, but one, had been aimed at neighbours in the Housing Cooperative.

54. The High Court further considered that the matters in respect of which Mr A had been charged and convicted did not give the full picture of the conduct that had prompted the Housing Cooperative to react with default measures in regard to the applicant. In this connection the High Court pointed to the findings made by the City Court in its 2006 judgment, which stated:

“Both from previous judgments and the statements given in this case, it emerged that the accused over many years had repeatedly contacted a number of neighbours and other persons with whom he considered he was in conflict. He had repeatedly levelled new accusations and more or less veiled threats against these persons and had in part made very serious and degrading remarks and descriptions. His conduct beyond this had also been perceived as disturbing, frightening and wholly unreasonably intense, both in form, extent and frequency. For instance, amongst other things, at times he was positioning himself more or less in the background in order to suddenly ambush by getting very close to and to some extent hindering the passage of the person he was talking to, while raising his voice and using threating body language and mimicking.”

55. The City Court had further referred to the fact that Mr A in connection with a criminal case in 2003 had undergone a thorough expert examination, which had inter alia concluded that he had extensive, systematic perceptions and experiences of conspiracy that were almost impossible to influence. Also the judgment of 2008 had described acts and conduct by Mr A that clearly corresponded to that description.

56. The High Court also noted that, during the period from 3 May 2007 until 5 November 2008, Mr A had been imposed restraining orders prohibiting him from contacting altogether four of his neighbours, the last such order having expired on 5 April 2009.

57. In the High Court’s assessment, the matters for which the applicant’s son had been convicted constituted by their nature, their number and the extent of the period in which they had been committed - namely from 29 July 2005 until 12 January 2008 - when seen as a whole, such default as fulfilled the conditions for requiring that the flat be vacated according to section 5-23(1) and the imposition of compulsory sale pursuant to section 5-22(1). This conclusion was further strengthened by the information that the incidents ought to be considered as a pattern of behaviour that was capable of creating an atmosphere of insecurity in the near environment.

58. Having reached this conclusion, the High Court found it unnecessary to examine whether Mr A’s moving into the applicant’s flat contrary to the declaration made on her behalf by Attorney B on 26 May 2004 amounted to serious default in the sense of the Housing Cooperative Act.

59. Nor could the applicant succeed with her argument that the conditions had subsequently improved.

60. The High Court found that the conditions for the imposition of default measures under sections 5-22 and 5-23 had in any event been fulfilled on 14 April 2009 when the order of sale was sent to the applicant, which - as also held by the City Court - was the decisive time for the assessment (see paragraphs 9 and 41 above).

61. The argument that the applicant’s high age should influence the assessment could not lead to any other conclusion. It was not difficult to see the sad side to hers having to move and, for that matter, even in the situation of her son. However, it was their own acts that had led to forcible sale of the apartment pursuant to section 5-22(2), cf. section 4-8(2) of the Act.

62. Thus, none of the grounds of appeal had succeeded and the High Court agreed with the City Court that they ought to be considered to be “clearly groundless” (section 4-8(2)). Her contention that the City Court should not have determined the case without holding an oral hearing could not be upheld either.

63. Against this background the High Court rejected the applicant’s appeal.

3. The Supreme Court

64. The applicant appealed against the High Court’s decision. She pointed out that the proceedings threatened her right to housing and that it was a serious case especially in view of her advanced age, eighty years. As regards the procedure, she submitted that the question was whether compulsory sale ought to occur under a written procedure or an ordinary procedure comprising an oral hearing. Her very considerable interest in keeping her apartment ought to be weighed against the Housing Cooperative’s limited interest in carrying out compulsory sale without an oral hearing. The competing interest in the case ought to have implications in the assessment of questions of procedure and the application of the law. The High Court’s reasoning had been summary; it had failed to deal with all her arguments and had omitted to comment on the interpretation of the terms “clearly groundless” and “substantial default”. The applicant requested the Supreme Court to quash the High Court’s decision and to refer her case back to the City Court for fresh examination under the ordinary procedure with an oral hearing.

65. On 1 October 2010, the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), whose jurisdiction was limited to reviewing the High Court’s procedure and interpretation of the law, rejected the appeal, finding it obvious that it could not succeed.

D. Subsequent events

1. Further proceedings at the domestic level

66. The assistant appointed to implement the compulsory sale, Attorney F., subsequently advertised the applicant’s apartment for sale. The highest bid was NOK 2,200,000 (currently corresponding to approximately EUR 240,000) from Mrs G. On 16 June 2012 Mr F. communicated the bid to the City Court for validation (stadfestelse), following which all interested parties were given two weeks for expressing objections. Before the expiry of the time-limit, the applicant and Mr A objected to the sale.

67. By a decision of 1 July 2011 the relevant section of the Office of the City Recorder (byfogdembete) validated the above-mentioned bid.

68. On 16 December 2011 the High Court rejected an appeal by the applicant and her son against the City Court’s decision to validate the bid, as did the Appeals Leave Committee of the Supreme Court on 18 July 2012 finding it obvious that the appeal could not succeed.

69. In conjunction with the above proceedings, the applicant and/or Mr A unsuccessfully pursued multiple other matters regarding the sale of the applicant’s apartment (request for replacement housing; miscellaneous complaints regarding the office of the Execution and Enforcement Commissioner’s (namsmannen) handling of the sale; a demand of access to documents in the possession of OBOS; disqualification of all police officers employed at the Court of the Office of the City Recorder; Mr A’s compensation claim against the State on account of the police having communicated information about him to OBOS allegedly in breach of their duty of confidentiality; his compensation claim against OBOS for its manner of processing information pertaining to him; his demand that OBOS remove from its archives and destroy a police report related to him; and his request for access to a file in OBOS’s possession) as well as a request for the joinder of these proceedings and an oral hearing. All these claims were rejected as being groundless by the relevant sections of the Oslo City Court (18 May and 1 July 2011), the High Court (14 and 16 December 2012) and the Appeals Leave Committee of the Supreme Court (18 July 2012). On 16 November 2012 the applicant was notified that the new owner had demanded that the applicant vacate the apartment following the implementation of compulsory sale.

70. On 5 December 2012 the Court of the Office of the City Recorder warned the applicant that, as previously announced on 22 October 2012, he had decided to take the necessary steps to have her evicted from the flat on 18 December 2012 at 10 a.m., should she not voluntarily vacate the premises.

2. Developments in the Convention proceedings

71. On 10 March 2015, the Government forwarded a copy of a handwritten note, dated 10 February 2015, by which the applicant instructed her then lawyer Mr Mørk to withdraw her application immediately. She stated that any enquiries should be addressed to her son Mr T. or to her daughter Ms G. and emphasised that her son Mr A was not entitled to represent her. The Government also suggested that the application be struck out. On 31 March 2015, Mr Danielsen of the same law firm as Mr Mørk, replied that he had replaced the latter and that the applicant wished to maintain her application.

72. On 30 March 2015 Mr A, represented by Mr Marius Reikerås, sought leave to intervene as a party or as a third-party in the proceedings (Articles 34 and 36 § 32 of the Convention). On 20 May 2015, having examined the matter in the light of Rule 44 § 3 of the Rules of Court, the President of the First Section (to which the application was allocated at the time) decided to refuse the request as she considered, having regard to the state of the proceedings in the case, that the intervention requested would not be in “the interest of the proper administration of justice”. Thereafter the President decided to resume the proceedings, which had been temporarily suspended pending consultation of the parties on the afore-mentioned.

73. On 2 November 2015 the applicant died.

74. Following the applicant’s death, on 4 November 2015, Mr A, represented by Mr M. Reikerås, informed the Court that he wished to pursue the application. On 16 December 2015 the Government asked the Court to strike the application out of its list of cases. On 12 January 2016, Mr Danielsen, the lawyer acting for the deceased applicant, informed the Court that her two other heirs, Mr T. and Ms G., wished to pursue the application. On 2 and 3 February 2016 the Court received further observations on these matters from Mr Reikerås and the Agent of the Government.

II. RELEVANT DOMESTIC LAW

75. The Housing Cooperatives Act 2003 (burettslagslova) regulates inter alia the conditions on which part owners may use a specific part of the property, owned by the cooperative, as their home (section 1-1). The Act contained the following provisions that were referred to above by the City Court:

Section 4-8 Compulsory Sale

“(1) If a part has been acquired in breach of section 4-1 or of rules of statute under section 4-4, the cooperative may order the acquirer to sell the property. The order must be conveyed in writing and inform that compulsory sale of the part may be demanded unless the order is complied with within a time-limit which shall not be shorter than three months.

(2) If the order has not been complied with within the time-limit, a demand may be made to have the property sold by the execution and enforcement authorities in so far as appropriate under the rules on compulsory sale.

The provisions in sections 4-18 and 4-19 apply correspondingly. If, within the time-limit applicable according to section 11-7(1) of the Enforcement Act 1992 (tvangsfullbyrdelsesloven), objections have been expressed against compulsory sale which are not clearly groundless (“klart grunnlause”), the request for compulsory sale shall not be accepted without examination according to ordinary procedure [i søksmåls former].”

(3) ...”

Section 5-22 Order of sale

“(1) If despite being warned the part owner defaults his or her obligations substantially (“misheld pliktene sine vesentleg”), the Housing Cooperative may order the part owner to sell his or her part. The requirement of warning does not apply in the event that a vacating the premises can be imposed under section 5-23(1). A warning shall be done in writing and shall inform that the substantial default will give the cooperative a right to order that the part be sold. An order of sale shall be done in writing and shall inform that an order to sell the part at compulsory sale may be imposed if the order has not been complied with within a time-limit which shall not be shorter than three months from when the order was received.

(2) If the order has not been complied with within the time-limit, the cooperative may impose sale of the part pursuant to section 4-8(2).”

Section 5-23 Vacating of premises

“(1) If the part owner behaves in such a way that there is danger of destruction or substantial depreciation of the property, or in such a way that there is serious disturbance or nuisance to other users of the property, the cooperative may demand that the residence be vacated pursuant to Chapter 13 of the Enforcement Act. Proceedings relating to a demand to vacate may be instituted at the earliest at the same time as an order of sale pursuant to section 5-22. The demand must be brought before above City Court. If, within the time-limit under section 13-6 of the Enforcement Act, objections which are not clearly groundless have been raised, the demand for the residence to be vacated shall not be upheld without examination according to the ordinary procedure.”

76. According to section 4-8 (2) of the Housing Cooperatives Act, the procedural rules on compulsory sale embodied in the Enforcement Act 1992 apply in so far as appropriate. Pursuant to its section 2-1(1), the execution and enforcement authorities (namsmyndighet) were the Execution and Enforcement Commissioner (namsmannen) and the Court of the Office of the City Recorder (tingretten/byfogdembetet). From section 11-3(1) cf. section 2-8, it followed that in matters concerning the compulsory sale of real estate and shares in Housing Cooperatives, petitions for enforcement ought to be submitted to the Court of the Office of the City Recorder as the competent execution and enforcement authority.

77. Section 4-1(1) of the Enforcement Act stipulated that a petition for the enforcement of a claim could be submitted provided that a legal ground for enforcement of the claim existed. Such a ground could either be general or specific; an order of compulsory sale under section 4-8 of the Housing Cooperatives Act being considered to fall within the latter category.

78. Section 4-18 of the Enforcement Act stated that a petition for enforcement based on a specific enforcement ground might be filed two weeks after the claimant had sent the respondent a written warning notifying the latter that, should he or she fail to honour the claim, a petition for enforcement would be filed.

79. Pursuant to section 11-7 (1), where the court found a petition for enforcement acceptable, it was to notify the respondent accordingly, who then had one month for filing comments on the implementation of the enforcement measure. The same time-limit applied to making objections to compulsory sale under section 4-8 (2). Other adult persons in the respondent’s household were also to be notified (section 11-8(2)) and be given an opportunity to comment (section 11-9(1)).

80. After the respondent and other adult persons in his or her household had commented on the enforcement issue or after the expiry of the one month time-limit for making such comments, the court was to decide whether settlement by distraint should be put to effect, cf. section 11-9 (1). In cases concerning compulsory sale pursuant to the Housing Cooperatives Act, “settlement by distraint” (tvangsdekning) meant “compulsory sale”.

81. According to section 5-16 of the Enforcement Act, anyone affected by an enforcement measure had a right to complain to the court about conduct and decisions of the Execution and Enforcement Commissioner. The complaint was to be submitted to the Commissioner, who would decide first whether the complaint ought to have suspended effect on the enforcement proceedings. If the Commissioner found the complaint unjustified, it was to be submitted to the competent court for considerations according to the applicable rules on judicial procedure.

THE LAW

I. THE LOCUS STANDI OF THE APPLICANT’S CHILDREN

82. Following the applicant’s death on 2 November 2015, Mr A declared on 4 November 2015 his wish to pursue the application as a heir of the applicant, as did her heirs Mr T. and Ms G. on 12 January 2016 (see paragraph 74 above).

83. In the meantime, on 16 December 2015, the Government maintained that Mr A had no right to pursue the application. They pointed to the applicant’s letter of 10 February 2015 to her then lawyer Mr Mørk, instructing him to immediately withdraw the application before the Court and emphasising that her son Mr A was not entitled to represent her. Although the applicant later upheld her application (see paragraph 72 above), the contents of her letter gave reason to doubt whether it would be appropriate for Mr A to purse the application on her behalf.

84. Moreover, the Government argued that the applicant’s claim under Article 8 of the Convention was of a personal and non-transferable nature, and that, in line with the approach taken in Vääri v. Estonia ((dec.) no. 8702/04, 8 July 2008), her claim under Article 6 § 1 of the Convention should be considered likewise.

85. Against this background, the Government invited the Court to strike the application out of its list of cases, the Court’s continued examination being no longer justified nor required by respect for human rights (Article 37 § 1 (c) and § 1 in fine).

86. The Government maintained these arguments after learning of the wish of Mr T. and Ms G. to pursue the application on the applicant’s behalf.

87. The Court first notes that the applicant’s death occurred after she had lodged her application, a situation which according to its case-law is viewed differently from those instances where the applicant has died beforehand (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references). It further reiterates that, where the original applicant has died after lodging the application, the Court normally permits the next-of-kin to pursue an application, provided he or she has a legitimate interest (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 XII, and Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016, with further references). The Court therefore does not agree with the Government’s submission that the nature of the applicant’s complaints is a material factor rendering them non-transferable for the present purposes.

In any event, even assuming that the nature of the complaints is relevant in the kind of situation at hand, the Court first observes that at the heart of the applicant’s complaints, not only under Article 6 § 1 but also under Article 8 of the Convention, lay a grievance of due process stemming from the alleged failure of the national courts to hold an oral hearing in her case. The applicant further requested the Court to make a pecuniary award of damages on account of the alleged violations. Therefore, even on this assumption, the Court cannot agree with the Government’s submission that the complaint was of such eminently personal and non-transferable nature as could prevent the applicant’s children from showing a sufficient interest in pursuing the application on her behalf after she passed away (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], cited above, § 97, with further references).

88. Accordingly, the Court accepts that Mr T. and Ms G. have standing to pursue the application on the applicant’s behalf.

89. As regards Mr A, however, the Court deduces from the applicant’s statement of 10 February 2015 (see paragraph 71 above) that she did not wish him - unlike Mr T. and Ms G. - to be involved in the pursuit of her application under the Convention. The Court finds no reason to assume that her wishes in this respect changed later or that it could otherwise be assumed that he has a legitimate interest in pursuing her case.

90. In view of its above conclusion regarding the standing of Mr T. and Ms G., the Court dismisses the Government’s request to strike the application out of its list of cases.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

91. The applicant complained that in the national proceedings relating to the decision to order compulsory sale of her apartment (see paragraphs 20-65 above), she had not been afforded a fair and public hearing, in breach of Article 6 § 1 of the Convention. In so far as is relevant, this provision reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

92. The Government contested that argument.

A. Admissibility

93. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions of the parties

(a) The applicant’s arguments

94. The applicant, Mrs. Sagvolden, emphasised before the national appellate courts that her objections against the compulsory sale of her flat had not been “clearly groundless” for the purposes of section 4-8 of the Housing Cooperative Act and that, accordingly, the omission to hold an oral hearing in her case had been unjustified. She further stressed the seriousness of the interest at stake for her in having to leave her apartment, especially in view of the fact that she had reached the age of eighty and the assistance and care provided by her son who was cohabiting with her.

95. The applicant complained that she was deprived of her right to appear before the court in order to state her own version of the events and to explain the consequences that she faced. The question before the national court was how to strike a fair balance between the interests of the Housing Cooperative and those of the applicant. By omitting to hold a hearing, the Court of the Office of the City Recorder got to know neither of the parties nor the real interests at stake. The latter judicial authority had deprived the applicant of her right to have examined the Board’s real interest in the rescission of the contract (if that had been the intention, the protocol does not state this clearly), and the circumstances pertaining to the applicant’s compliance with the contract, which had made it necessary to have recourse to the ultimate remedy for breach of contract without having at least discussed alternate remedies.

96. Since the applicant had never been in direct contact with the Board, her last chance for meeting a person representing it would have been when appearing as an opposing party at an oral hearing. Such direct personal contact with the assistance of a judge would also have facilitated the possibility of making pleas for solutions less extreme than forced sale and eviction and for reaching a compromise.

97. The Court’s judgment in Salomonsson v. Sweden, no. 38978/97, 12 November 2002 served as a reminder of even the tiniest factual dispute would occasion the need for an oral hearing even within an administrative procedure concerning social security benefits. By comparison, the factual disputes between the parties before the Court of the Office of the City Recorder in the instant case had concerned a large number of issues and were serious.

98. The response of 16 November 2009 to the petition for enforcement had listed nine objections to the enforcement. The objections all addressed facts invoked in the sale order or in the petition for enforcement. The main objections of factual nature included the following:

- the real intention behind the Housing Cooperative’s decision to address an order of compulsory sale to the applicant;

- the evidence pertaining to the alleged “new incidents” mentioned in the protocol from the board of the Housing Cooperative of 2 September 2008;

- the applicant’s old age and her expectations to live on the property outweighing the Housing Cooperative’s interests in forcing her out of her home;

- the applicant’s argument that the 2004 agreement was a nullity in that she had signed it under circumstances that constituted illegal coercion, the particulars of which could not be illuminated without hearing the persons involved;

- the applicant’s contestation of the veracity and relevance of episodes referred to in restraining orders against her son; a kind of injunctions which can be obtained without proving that the person concerned had done anything wrong or would do so in the absence of an injunction, but the court had ignored that the facts were disputed and that witnesses could shed light on what had happened. Instead it had decided the case on the basis of facts as described in the injunctions.

99. Had an oral hearing been held, the applicant would have had the opportunity to clarify a legal issue before the judge, namely that from section 7-1 (2) of the Law of Housing Cooperatives it followed that the general assembly was the competent body to decide on whether to issue an order of compulsory sale.

100. Against this background, it was evident that the case before the Court of the Office of the City Recorder was not a case where oral hearings could be dispensed with because it involved “no issues of credibility or contested facts” as formulated in the Court’s case-law (see paragraph 111 below). On the contrary, a number of such issues were raised and, even if the case had belonged to an administrative jurisdiction, an oral hearing would have been necessary for resolving these issues.

101. In conclusion; whatever exceptions one might find in the Court’s case-law as to the right to an oral hearing, they did not apply to the case at hand. As pointed out in Jussila v. Finland [GC] (no. 73053/01, § 40, ECHR 2006-XIV), an oral, and public, hearing constituted a fundamental principle enshrined in Article 6 § 1. By having been denied the right to appear before the domestic court and the opportunity to have the parties and witnesses heard, as well as to contest the facts held against her in the order of compulsory sale and the petition for enforcement, she had been the victim of a violation of Article 6 § 1 of the Convention.

(b) The Government’s arguments

102. The Government reiterated that, whilst section 9-15(1) of the Code of Civil Procedure stated that appeals against interlocutory orders and decisions should normally be determined following a written procedure, section 9-15(2) provided: “An oral hearing shall be held if required out of regard to the need to ensure sound and fair legal proceedings” [emphasis added]. In the present case, after having considered whether an oral hearing was required by the fair hearing guarantee in Article 6 § 1 of the Convention, the High Court decided to determine the applicant’s appeal on the basis of the written case-file.

103. The applicant had failed to meet the specific requirement in the 2004 agreement with the Housing Cooperative that only she, and not also her son Mr A, would inhabit the apartment. The fact that Mr A had moved into the apartment, in breach of the agreement, was not disputed by the applicant and was not at issue in the domestic court proceedings. There was further no dispute as to the correctness of the background for the Housing Cooperative’s asking the applicant to confirm in writing that she only would move into the apartment in question, notably the prior behaviour of Mr A as co-resident with the applicant in another Housing Cooperative. This was the background against which the Board decided to sell her part in accordance with section 5-22 of the Housing Cooperative Act of 2003.

104. What was disputed by the applicant was essentially three matters: 1) the interpretation of the name “Sagvolden” in the Board’s decision; 2) whether the Board’s decision only concerned the more intrusive measure of eviction and not the less intrusive measure of compulsory sale; and 3) that the applicant’s interests in living in this particular apartment outweighed the Housing Cooperative interests in forcibly selling her part.

105. It was not apparent that an oral hearing regarding these matters would in any way be conducive to the domestic courts reaching different findings on the essential facts and legal issues. The first two objections were clearly without merit and the third, which related to the argument that the applicant was of an advanced age and was in need of assistance from her son, Mr A, were also evident from the case file.

106. The applicant had knowingly agreed not to let Mr A cohabit with her and must have understood when agreeing to the clause in question that this was a fundamental condition for staying in the Housing Cooperative. Advanced age or need for assistance were not factors to be taken into account by domestic courts in determining whether the requirements for compulsory sale had been met.

107. In the view of the Government, the case raised no questions of facts and law that could not adequately be resolved on the basis of the documents and parties written arguments. The fact that Mr A’s conduct had been considered and affirmed in judgments previously rendered in criminal proceedings against him also suggested that an oral hearing was not required by Article 6 § 1 of the Convention in the present case.

108. It was unclear what in the applicant’s case ought to be regarded as tantamount to “considerable personal significance” (see Jussila, cited above, § 44, quoted at paragraph 111 below). Her advanced age, considered on its own or in combination with her purported need to being looked after by Mr A, could not suffice for it to be mandatory to hold an oral hearing. The compulsory sale of her apartment clearly did not entail that she was “being put on the street”, as she suggested. The domestic courts’ acceptance of the Board’s decision merely had the consequence that she had to move elsewhere. The applicant was not forced to live in an accommodation owned by the OBOS Housing Cooperative: the general housing market was open also to her. She was entitled to apply for assistance from the generous social services that Norwegian society offered to its citizens. Her situation was clearly different from the considerably more serious one that was at issue in Göç v. Turkey [GC](, no. 36590/97, §§ 50-52, ECHR 2002-V). The applicant’s personal situation could not be a decisive factor in the Court’s assessment under Article 6 § 1 of the Convention case.

109. The disagreement between the applicant and the Housing Cooperative on the facts and the law had been the subject of consideration by three judicial instances - the Court of Court of the Office of the City Recorder, the High Court and the Appeals Leave Committee of the Supreme Court. This factor also supported the view that an oral hearing was not called for.

110. In sum, the Government invited the Court to hold that there had been no violation of Article 6 § 1 of the Convention in the instant case.

2. Assessment by the Court

(a) General principles

111. In assessing whether the absence of an oral hearing in the proceedings in question amounted to a failure to comply with Article 6 § 1, the Court will have regard to the principles in its case-law. It reiterates that in Jussila, cited above, §§ 40 to 44, it stated:

“40. An oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 § 1. This principle is particularly important in the criminal context, where generally there must be at first instance a tribunal which fully meets the requirements of Article 6 (“see Findlay v. the United Kingdom, 25 February 1997, § 79, Reports of Judgments and Decisions 1997-I), and where an applicant has an entitlement to have his case ‘heard’, with the opportunity, inter alia, to give evidence in his own defence, hear the evidence against him, and examine and cross-examine the witnesses.

41. That said, the obligation to hold a hearing is not absolute (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A). There may be proceedings in which an oral hearing may not be required: for example where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties’ submissions and other written materials (see, for example, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002, and Pursiheimo v. Finland (dec.), no. 57795/00, 25 November 2003; compare Lundevall v. Sweden, no. 38629/97, § 39, 12 November 2002, and Salomonsson v. Sweden, no. 38978/97, § 39, 12 November 2002; and see also Göç v. Turkey [GC], no. 36590/97, § 51, ECHR 2002-V, where the applicant should have been heard on elements of personal suffering relevant to levels of compensation).

42. The Court has further acknowledged that the national authorities may have regard to the demands of efficiency and economy and found, for example, that the systematic holding of hearings could be an obstacle to the particular diligence required in social security cases and ultimately prevent compliance with the reasonable-time requirement of Article 6 § 1 (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263 and the cases cited therein). Although the earlier cases emphasised that a hearing must be held before a court of first and only instance unless there were exceptional circumstances that justified dispensing with one (see, for instance, Håkansson and Sturesson, cited above, § 64; Fredin v. Sweden (no. 2), 23 February 1994, §§ 21-22, Series A no. 283-A; and Allan Jacobsson v. Sweden (no. 2), 19 February 1998, § 46, Reports 1998-I), the Court has clarified that the character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005). The overarching principle of fairness embodied in Article 6 is, as always, the key consideration (see, mutatis mutandis, Pélissier and Sassi v. France [GC], no. 25444/94, § 52, ECHR 1999-II, and Sejdovic v. Italy [GC], no. 56581/00, § 90, ECHR 2006-II).

43. While it may be noted that the above-mentioned cases in which an oral hearing was not considered necessary concerned proceedings falling under the civil head of Article 6 § 1 and that the requirements of a fair hearing are the most strict in the sphere of criminal law, the Court would not exclude that in the criminal sphere the nature of the issues to be dealt with before the tribunal or court may not require an oral hearing. Notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any substantial degree of stigma. There are clearly ‘criminal charges’ of differing weight. ...

44. It must also be said that the fact that proceedings are of considerable personal significance to the applicant, as in certain social insurance or benefit cases, is not decisive for the necessity of a hearing (see Pirinen v. Finland (dec.), no. 32447/02, 16 May 2006).”

(b) Application of the above principles to the instant case

112. Turning to the specific circumstances of the present case, the Court notes from the outset that the complaint concerned the absence of an oral hearing in civil proceedings, rather than criminal ones where, as stated above, a stricter requirement in this respect applies.

113. As already mentioned above, whether it is justified to dispense with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national courts (see Jussila, § 42, quoted at paragraph 111 above).

114. In this regard, it is to be noted that the applicant’s objection that Attorney K. had acted without mandate when commencing proceedings for compulsory sale (see paragraphs 22 and 47 above), raised questions which were straightforward and was rejected, both by the City Court and by the High Court, on a mere textual interpretation of the Board’s minutes and the relevant statutory provisions (see paragraphs 29 and 49 to 51 above).

115. Similar observations could be made about her objection that she had not received a prior warning about compulsory sale. Thus, from a plain reading of section 5-22(1) it followed that no requirement of prior warning applied where the conditions for eviction in section 5-23(1) had been fulfilled (see paragraph 75 above). Nor does the applicant seem to have disputed the national courts’ interpretation that the owner ought to be identified with the other members of his or her household and might thus be held accountable for their conduct (see paragraphs 27, 32, 49 and 57 above).

116. In the light of the above considerations, there is nothing to indicate that the admissibility of the Housing Cooperative’s suit could not be adequately dealt with on the basis of the written case-file.

117. The central question in the proceedings concerned rather the merits of the suit, whether the applicant as a part owner had seriously defaulted on her obligations vis-à-vis the Housing Cooperative, which constituted the material ground for ordering compulsory sale under section 5-22(1) of the Act. In this regard, the Court observes that in its decision of 5 August 2010, the High Court, like the City Court, held that it was decisive whether the conditions for the imposition of default measures under sections 5-22 and 5-23 had been fulfilled on 14 April 2009, at the time when the Board communicated its order of compulsory sale to the applicant (see paragraph 60 above).

118. In answering this question in the affirmative, the High Court relied decisively on facts that had been judicially established in the previous criminal proceedings against Mr A on account of repeated offences of assault and frightening and disturbing behaviour committed against the applicant’s neighbours in Housing Cooperative X during the period from 29 July 2005 until 12 January 2008 (see paragraphs 52 to 58 above). In this context it is of interest to note that the trial courts in those proceedings, after hearing evidence from Mr A, who was legally represented, and from witnesses, had convicted him on nearly all of the charges and had sentenced him to imprisonment of 120 days and eighteen days, respectively by judgments of 10 March 2006 and 23 June 2008 which had not been subject to appeal and had gained legal force (see paragraphs 11 to 19 above).

119. It was essentially on this clearly established factual basis (compare Buterlevičiūtė v. Lithuania, no. 42139/08, § 64, 12 January 2016) that the High Court concluded that the impugned conduct (for which the applicant’s son had been convicted) constituted by their nature, their number and the extent of the period in which they had been committed - when seen as a whole, default fulfilling the legal conditions for requiring that the flat be vacated according to section 5-23(1) and the imposition of compulsory sale pursuant to section 5-22(1). This conclusion, the High Court observed, was further strengthened by the information that the incidents ought to be considered as a pattern of behaviour capable of creating an atmosphere of insecurity in the close environment. And having reached this conclusion, the High Court found it unnecessary to examine whether Mr A’s moving into the applicant’s flat contrary to the declaration made on her behalf by Attorney B. on 26 May 2004 (see paragraphs 5 to 7 above) amounted to serious default in the sense of the Housing Cooperative Act.

120. Thus, the Court observes that the crux of the matter to be determined by the national courts, whether there had been such substantial default as could warrant compulsory sale, involved what seems to be a direct application of national law to a set of facts that had already been clearly and finally established after adversarial hearing in the previous criminal proceedings against Mr A. By following this approach, the domestic courts did not need to determine any issue of fact raised by the applicant in the proceedings concerning the order of compulsory sale (see Allan Jacobsson v. Sweden (no. 2), 19 February 1998, § 48, Reports of Judgments and Decisions 1998-I), or any issue of credibility (Schädler-Eberle v. Liechtenstein, no. 56422/09, §§ 103-105, 18 July 2013).

121. Indeed, the applicant’s appeal against the High Court’s procedure and interpretation of national law was rejected by the Appeals Leave Committee of the Supreme Court on the ground that it was obvious that it could not succeed.

122. It is also to be noted that in reaching the conclusions which they did, the national courts had regard to the interests at stake for the applicant on account of her old age in maintaining her ownership in the flat in question (see paragraphs 43 and 61 above). However, the national courts were entitled to consider that their personal significance for the applicant were not decisive for the necessity of a hearing (see Jussila, cited above, § 44, quoted at paragraph 111 above).

123. Against this background, the Court does not find on the evidence before it that the applicant’s claim was capable of giving rise to any issue of fact or of law which was of such a nature as to require an oral hearing for the determination of the case and which could not be adequately dealt with on the basis of the written case file. It sees no reason to call into question the national courts’ having opted for the more expeditious written procedure (compare Madaus v. Germany, no. 44164/14, § 27, 9 June 2016) and is satisfied in view of the limited nature of the issues to be determined in the case that there were such exceptional circumstances as could dispense them from the obligation to hold an oral hearing.

124. Accordingly, the absence of an oral hearing did not render the proceedings unfair for the purposes of Article 6 § 1 of the Convention, which provision has not been violated in the instant case.

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

125. The applicant further complained that the order compelling her to sell her apartment entailed an unjustified interference with her right to respect for private life and home, in violation of Article 8 of the Convention, which reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

126. The Government contested that argument.

A. Admissibility

127. The Court notes that this complaint is linked to the one examined above. It finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and further considers that it is not inadmissible on any other grounds. The complaint must therefore be declared admissible.

B. Merits

1. Submissions of the parties

(a) The applicant’s arguments

128. The applicant invited the Court to have regard to her arguments under Article 6 § 1 in its examination of her complaint under Article 8. At issue here was the summary treatment given to the applicant’s objections to the compulsory sale. Had she instead been afforded a main hearing (“hovedforhandling”), as was her right under Norwegian law and under the Convention, a variety of other outcomes might have been possible.

129. The omission to observe the Article 6 fair hearing guarantee had led to a failure to respect for her right to a home. The interference by the Government had consisted in turning the tables so that due process was short-circuited in favour of the Housing Cooperative. The Government made no comment on why it had been uniquely necessary to go ahead with the enforced sale without awaiting final judgement despite the fact that it involved the applicant’s fundamental right to a home. Under the relevant national law she clearly had a right to a “main hearing” at first instance and again on appeal. She ought to have enjoyed the protection of her home and property afforded to her by the relevant domestic law, with a right to raise and argue her objections in oral proceedings; there was nothing to justify denying her this protection.

130. Since her objections to the compulsory sale could not be regarded as clearly groundless (see paragraph 75 above) the decision to dispense with an oral hearing had been unlawful. Thus, the applicant argued, the proceedings in question had not been “in accordance with the law” in the sense of Article 8 § 2 of the Convention.

131. Moreover, the impugned interference had clearly not been “necessary” for the purposes of Article 8 § 2.

132. In sum, there had been violation of Article 8 of the Convention on account of the applicant’s loss of her home following the order of its forcible sale without the Convention fair hearing guarantees having been respected.

(b) The Government’s arguments

133. The Government maintained that the decision authorising the compulsory sale of the apartment was “necessary” within the meaning of Article 8 § 2 of the Convention. The decision answered to a “pressing social need” in that it was “proportionate to the legitimate aim pursued” according to the norm as understood by the Court’s case-law. In assessing proportionality the Court confirms that a margin of appreciation must “inevitably” be left to national authorities who are in principle better placed than the Court to evaluate particular needs and conditions in a given case.

134. Regard ought to be had to the concrete objections against enforced sale raised by the applicant. The Government referred in this respect to its submissions under Article 6 § 1 of the Convention summarised in paragraphs 104-108 above, where the contested issues were enumerated and commented upon. The applicant had not submitted convincing arguments that an oral hearing was the only mode of procedure which could ensure fair proceedings in her case: Her objections were simply not conducive of leading to another outcome if the proceedings had been oral. In these circumstances it was “understandable that the national authorities should have regard to the demands of efficiency and economy”, see in particular Schuler-Zgraggen v. Switzerland (24 June 1993, § 58, Series A no. 263).

135. The Government argued that the applicant’s case ought to be distinguished from a number of cases previously decided by the Court where violation of Article 8 has been found. In Gladysheva v. Russia (no. 7097/10, 6 December 2011), for instance, the Court had found a violation having regard to the domestic courts’ automatic handling of the applicant’s eviction case with no analysis of whether the eviction had been permissible and emphasised that the State had taken possession of the applicant’s home (§§ 94-95). These issues had clearly not been present in the case of Ms Sagvolden. In Orlić v. Croatia (no. 48833/07, 21 June 2011), the domestic courts had also merely formally scrutinized the grounds for eviction without having regard to the individual facts of the case (see § 64). In other cases, too, such as McCann v. the United Kingdom (no. 19009/04, ECHR 2008) and Ćosić v. Croatia (no. 28261/06, 15 January 2009), it was the lack of substantive judicial review of the disputed interference - more precisely a lack of a proportionality assessment - which had led the Court to conclude that the “necessity” criterion in Article 8 § 2 had not been complied with.

In its decision of 26 April 2010 the Court of the Office of the City Recorder had indeed carried out a substantive assessment of all the relevant circumstances of the applicant’s case. While it did not phrase its assessment in terms of proportionality as such, it was in fact a proportionality assessment that had been undertaken, as the central criteria of the judicial reasoning were whether the applicant had “substantially defaulted” her obligations and whether her objections were “not clearly groundless” (see paragraph 75 above). The decision was accordingly made after a consideration of the circumstances of the case as a whole, having regard also to Mrs Sagvolden’s old age.

2. Assessment by the Court

136. The Court considers that the impugned order of compulsory sale gave rise to an interference with the applicant’s “right to respect for ... home” within the meaning of Article 8 § 1 (see Orlić, cited above, §§ 56-59, with further references) and sees no need to pronounce any view on whether it also entailed an interference with her right to respect for “private life.”

137. The Court is satisfied that the measure was in accordance with law in the sense of Article 8 § 2, namely sections 5-22 and 5-23 of the Housing Cooperative Act. It also reiterates that it is not its task to substitute itself for the domestic courts as regards the assessment of the facts and their legal classification, provided that these are based on a reasonable assessment of the evidence (see, mutatis mutandis, Florin Ionescu v. Romania, no. 24916/05, § 59, 24 May 2011). More generally, the Court points out that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Its role is thus confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I; Korbely v. Hungary [GC], no. 9174/02, §§ 72-73, ECHR 2008; and Rohlena v. the Czech Republic [GC], no. 59552/08, § 51, ECHR 2015).

138. The Court is further of the view that the measure pursued the legitimate aim of protecting “the rights and freedoms of others”.

139. As regards the necessity of the interference, the Court will have regard to the principles in its case-law, enunciated in Connors v. the United Kingdom, (no. 66746/01, §§ 81-84, 27 May 2004, and relied on in a number of subsequent judgments (see McCann, cited above, §§ 46-55, Ćosić, cited above, §§ 20-23; Orlić, cited above, §§ 63-72; Zehentner v. Austria, no. 20082/02, §§ 56-65, 16 July 2009; and Bjedov v. Croatia, no. 42150/09, §§ 64-72, 29 May 2012), as follows:

“81. An interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention ...

82. In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights ... . On the other hand, in spheres involving the application of social or economic policies, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that ‘[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation’ ... . The Court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation ... . It may be noted however that this was in the context of Article 1 of Protocol No. 1, not Article 8 which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community ... . Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant ... .

83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 ...”

140. While the above-mentioned principles were formulated with a view to eviction cases, the Court considers them pertinent for its consideration of the present instance since the measure complained of, an order of compulsory sale, produced similar effects as an eviction order on the applicant’s enjoyment of her right to respect for home. Thus, like in the above-cited cases, when examining whether the procedural safeguards available to the applicant in this case afforded due respect to her Article 8 interest in keeping her home, an important factor will be whether the national courts reviewed not only the lawfulness of the measure but also its reasonableness and proportionality (McCann, § 50; Ćosić, § 22; Orlić, § 65; see also Gladysheva, § 95; Bjedov, § 68; and Zehentner, § 63, all cited above).

141. In this regard, the Court notes that the lawfulness of the decision to order compulsory sale of the applicant’s flat was examined in detail both by the City Court and by the High Court, and that the reasonableness of the measure was indeed an issue in their assessment of whether the statutory condition of “substantial default” had been fulfilled in her case (see paragraphs 26 to 46 and 48 to 63 above). These courts had particular regard, on the one hand, to other neighbours and users at Housing Cooperative X’s interest in the applicant being ordered to sell her flat (see paragraphs 36 to 42 and 53 to 57 above) and, on the other hand, her interest in being able to stay with her son in the dwelling, and reached conclusions to the effect that the former clearly outweighed the latter (see paragraphs 43 and 61 above). Thus, unlike in the above-cited cases, in the present case, the applicant had the possibility of having the reasonableness as well as proportionality of the measure reviewed in the light of the principles under Article 8 of the Convention.

142. It is noteworthy that the domestic courts took account of the fact that Mr A had moved into the flat with the applicant contrary to her declaration through Attorney B of 26 May 2004 (see paragraphs 33 and 58 above). The High Court found decisive that, after she had moved in, Mr A had repeatedly caused serious harassment and nuisance to her neighbours, according to the facts established in the criminal judgments from 10 March 2006 and 23 June 2008 (see paragraphs 53 to 55 above). Also, he had been imposed restraining orders prohibiting him from seeking contact with four of the applicant’s neighbours, running over different periods between May 2007 and April 2009 (see paragraph 56 above). The High Court considered the applicant’s submission that the situation had since improved but found decisive that the conditions for ordering compulsory sale had been fulfilled at the time when the Board notified her of its decision. Due to the number of incidents and to the length of the period in which they had occurred, the matters for which Mr A had been convicted constituted such substantial default as could warrant compulsory sale of her flat. The incidents drew a pattern of behaviour capable of creating an atmosphere of insecurity in the near environment (see paragraph 57 above). The High Court had regard to the applicant’s argument related to her old age and problems in moving but held that this could not lead to any different conclusion, it being her own and her son’s acts that had led to the impugned order of compulsory sale (see paragraph 61 above). The Court also notes that the applicant did not complain, nor is there anything to suggest, that there was a risk that she would be left homeless (compare Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 47, 21 April 2016).

143. In addition, the applicant was able to pursue a number of appeals concerning various other aspects of the order of compulsory sale of her apartment, such as the implementation of the sale and her claim for replacement housing (see paragraphs 66 to 70 above).

144. Against this background, the Court is satisfied that the applicant’s Article 8 interests were adequately safeguarded in the national decision-making process and that in reaching the decision which they did, the competent national authorities acted within their margin of appreciation. In sum, there has been no violation of this provision.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Holds that Mr T. and Ms G., but not Mr A, may pursue the application on the deceased applicant’s behalf and accordingly dismisses the Government’s request to strike the application out of the Court’s list of cases;

2. Declares the application admissible;

3. Holds that there has been no violation of Article 6 § 1 of the Convention;

4. Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 20 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SAGVOLDEN v. NORWAY - 21682/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 1148 (20 December 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/1148.html Cite as: CE:ECHR:2016:1220JUD002168211, [2016] ECHR 1148, ECLI:CE:ECHR:2016:1220JUD002168211