Communicated on 12 January 2015
FIRST SECTION
Application no. 21682/11
Torill SAGVOLDEN
against Norway
lodged on 1 April 2011
STATEMENT OF FACTS
1. The applicant, Ms Torill Sagvolden, is a Norwegian national, who was born in 1929 and lives in Oslo. She is represented before the Court by L. Mørk, an Attorney practicing in Oslo.
A. The circumstances of the case
1. Factual background
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 26 March 2004 the applicant acquired an apartment as part owner and resident in Housing Cooperative (“borettslag”) X. In her request for approval it was indicated that her household would consist of one person. On 29 March 2004 its Governing Board (hereinafter “the Board”) approved the applicant’s acquisition. Shortly thereafter, the Board was made aware that the applicant’s son, Mr A, had caused serious problems in Housing Cooperative Y, where she 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, reference was made to the above-mentioned household information.
4. 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 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 of the Housing Cooperative maintained its earlier approval of the applicant as a part owner.
5. 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. In a letter of 2 June 2006 Attorney B disputed inter alia that Mr A had an address in Z Street 14 C.
6. On 2 September 2008, the Board held a meeting. According to the minutes it was decided that its “[s]ecretary [was] to inform Attorney [K.] of the new situation and to request him to initiate case proceedings against Sagvolden”.
7. 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). K. referred to his previous correspondence and to Mr A’s conviction by the City Court of 23 June 2008 and sentence 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. 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.
8. Upon expiry of the three month time-limit set pursuant to section 5-22 of the Housing Cooperative Act (see paragraph 70 below), Attorney M., who had succeed 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.
2. Particulars of Mr A’s convictions
(a) The Oslo City Court’s judgment of 10 March 2006
9. In the meantime, on 29 December 2005 Mr A had been indicted under Article 390 A 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 chuck him around making him fall on a bicycle. Thereafter he again grabbed him and pushed him into a wall.”
10. 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 Gamleveien 88, Lørenskog, 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’.”
11. 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.
12. In meting out the sentence, the City Court attached considerable weight to the fact that Mr A had twice 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 well-being 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.
13. Mr A did not lodge an appeal against his above conviction and sentence which thus became final. According to the indictments and the judgment Mr A’s address was Z Street 14C.
(b) The City Court’s judgment of 23 June 2008
14. On 22 January 2008 Mr A was (leaving aside one count for which he was acquitted) indicted under Article 228 (1) (violent assault) of the Penal Code:
“(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.”
15. 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.”
16. By a judgment of 23 June 2008, the City Court convicted Mr A in relation to 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 (item (a)); that he had pushed Mr H.F. or hit him in his chest but not that he had hit him hard (item (b); 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 H.F. (additional charge) 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 on this occasion 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.
17. Mr A did not lodge an appeal against the above judgment which thus became final.
3. Judicial order of compulsory sale
(a) The City Court
18. 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.
(i) The applicant’s pleadings
19. 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.
20. 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 6 above).
21. 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.
22. 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 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.
23. The applicant requested the City Court, before conducting any procedure on the merits, to first decide on her request that the case be dismissed.
(ii) The City Court’s decision
24. 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).
25. 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 rules 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.
26. 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.
27. No valid arguments had been raised by the applicant suggesting that the Housing Cooperative’s demand ought to be dismissed (see paragraph 23 above). Nor was there anything to indicate that Attorney K had exceeded the powers conferred on him by the Board.
28. 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).
29. 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”.
30. 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.
31. 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.
32. 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.
33. 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.
34. It was unclear at what time Mr A had moved into the applicant’s apartment. In the Oslo City Court’s judgment of 10 March 2006, Mr A had informed that he was living in Z Street 14 C. From the same judgment it appeared that the criminal offences for which he was convicted had occurred in Z Street 14 B and 14 C in July 2005. It was also undisputed by the applicant the 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.
35. 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 14 B and 14 C. 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 (for further details see paragraph 52 below) 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. 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 well-being 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 judgment were still prevailing.
36. 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.
37. 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.
38. 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.
39. Whether the conditions for ordering compulsory sale had been fulfilled essentially concerned 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).
40. 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.
41. 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.
42. 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.
43. 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.
44. 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.
(b) The High Court
(i) The applicant’s pleas
45. The applicant appealed against the City Court’s decision to the Borgarting High Court (lagmannsrett), complaining of the latter’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.
(ii) The High Court’s decision
46. 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).
47. 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.
48. 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. 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.
49. 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 in question could be the addressee. It could not be assumed that any other intention lay behind the Board’s decision.
50. 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.
51. 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.
52. 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.”
53. 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 with this description.
54. 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.
55. 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 a sinister atmosphere and insecurity in the near environment.
56. 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.
57. Nor could the applicant succeed with her argument that the conditions had subsequently improved.
58. 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 (see paragraph 39 above) 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.
59. The argument that the applicant’s high age should influence the assessment could not lead to any other conclusion. Whilst 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, 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.
60. 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.
61. Against this background the High Court rejected the applicant’s appeal.
(c) The Supreme Court
62. 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.
63. On 1 October 2010, the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg), 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.
4. Further proceedings
64. The assistant appointed to implement the compulsory sale, Mr F., Attorney, subsequently advertised the applicant’s apartment for sale. The highest bid was 2,200,000 Norwegian kroner (NOK) (approximately 270,000 euros (EUR)) 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.
65. By a decision of 1 July 2011 the relevant section of the Oslo City Court (byfogdembete) validated the above-mentioned bid.
66. 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 appal could not succeed (again its jurisdiction being limited to the High Court’s procedure and interpretation of the law).
67. 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 Execution and Enforcement Officer’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 office of the Execution and Enforcement Officer; 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; and 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.
68. On 5 December 2012 the Execution and Enforcement Officer 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.
B. Relevant domestic law
69. The Housing Cooperatives Act 2003 (burettslagslova) contained the following provisions that were referred to above City Court e:
Section 4-8 Compulsory Sale
“(1) If a part has been acquired in breach of section 4-1 or of rules of statue 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, objections have been expressed against compulsory sale which are not clearly groundless, 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, 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, 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.”
COMPLAINTS
70. The applicant complained under Article 6 § 1 of the Convention that she had not been afforded a fair and public hearing before the domestic courts. She further complained under Article 8 that the decision authorising the compulsory sale of her flat had violated her right to respect for private life and home under this provision. Since no incidents between Mr A and neighbours had occurred since the commencement of the proceedings on compulsory sale, the said measure could not be considered to have been “necessary”.
QUESTIONS TO THE PARTIES
1. Did the omission to hold an oral hearing in the proceedings relating to the decision to order compulsory sale of the applicant’s apartment, ending in the Appeals Leave Committee of the Supreme Court’s decision of 1 October 2010, give rise to a violation of her right to a fair and public hearing under Article 6 § 1 of the Convention (see, inter alia, Jussila v. Finland [GC], no. 73053/01, §§ 40 to 41 and 43, ECHR 2006‑XIV, with further references)?
2. Did the order compelling the applicant to sell her apartment entail an interference with her rights under paragraph 1 of Article 8 of the Convention that was not “necessary” within the meaning of its paragraph 2 (see, for instance, Connors v. the United Kingdom, no. 66746/01, §§ 81–84, 27 May 2004; McCann v. the United Kingdom, no. 19009/04, §§ 45-55, 13 May 2008; Ćosić v. Croatia, no. 28261/06, §§ 20-23, 15 January 2009; Orlić v. Croatia, no. 48833/07, §§ 63-72, 21 June 2011; Gladysheva v. Russia, no. 7097/10, § 95, 6 December 2011)?
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