CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 mars 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 31 March 2025   FOURTH SECTION Application no. 19853/23 Thomas LEONHARTSBERGER against Austria lodged on 15 May 2023 communicated on 11 March 2025 SUBJECT MATTER OF THE CASE The application concerns a complaint that the applicant had not been properly informed about proceedings under the Insolvency Act ( Insolvenzordnung ) against him as a natural person (the applicant was self ‑ employed) which had breached his rights of access to court and to a fair hearing under Article 6 § 1 of the Convention. On 22 July 2022 the Austrian tax authority ( Finanzamt ) filed a request for the opening of insolvency proceedings against the applicant in accordance with section 70 of the Insolvency Act due to tax arrears in the amount of 17,997.56 euros (EUR). On 29 July 2022 the St Pölten Regional Court summoned the parties to a hearing scheduled for 22 August 2022 and ordered the applicant to bring a list of assets. The summons to the hearing was sent to the applicant’s known address in St Pölten. The court letter was deposited at the nearby post office and an information notice about the deposit was left in the mailbox ( Zustellung durch Hinterlegung ). However, the applicant had moved to Vienna in the meantime and had placed a forwarding order with the Austrian Post. The deposited summons was not collected from the post office and was therefore returned to the court with a corresponding note on 23   August 2022. As the applicant did not appear to the hearing, the St Pölten Regional Court ordered the tax authority to pay an advance on the costs of the insolvency proceedings in the amount of EUR 4,000. The order was also sent to the applicant’s address in St Pölten and the Austrian Post forwarded it to the applicant’s new address in Vienna. The tax authority refused to pay the advance. On 30 August 2022 the St Pölten Regional Court decided that insolvency proceedings would not be opened due to lack of cost coverage and determined that the applicant was insolvent. On 1 September 2022 the decision was published on the publicly accessible insolvency file ( Insolvenzdatei ). Further, the decision was also sent to the applicant’s address in St Pölten and the Austrian Post forwarded it to the applicant’s new address in Vienna where it was deposited at the nearby post office on 8 September 2022 and an information notice about the deposit was left in the mailbox. The applicant did not collect the deposited decision which was eventually returned to the court with a corresponding note. On 28 November 2022 the applicant applied to the St Pölten Regional Court to be served with the tax authority’s request for the opening of insolvency proceedings and for summons to a new court hearing. The applicant alleged that he had only learnt about the insolvency proceedings against him due to a bank appointment on 25 November 2022 and that he had not received any court letters or notices of deposit concerning the proceedings at issue. On 6 December 2022 the St Pölten Regional Court dismissed the applicant’s request and held that the decision of 30 August 2022 had been published on the insolvency file on 1 September 2022 and became legally binding. Therefore, a further decision in these completed proceedings was not possible. An appeal by the applicant to the Vienna Court of Appeal ( Oberlandesgericht ) was dismissed. The Vienna Court of Appeal held that the time limit for lodging an appeal against the decision of 30 August 2022 had begun to run on 1 September 2022 when it had been published on the insolvency file and that the applicant’s knowledge of the decision was irrelevant in accordance with section 257 § 2 of the Insolvency Act. Further, the possibility of a request for reinstatement into the insolvency proceedings ( Wiedereinsetzungsantrag ) was excluded by law in accordance with section   259 §   4 of the Insolvency Act. QUESTIONS TO THE PARTIES 1.     Did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see Wallishauser v. Austria , no. 156/04, 17 July 2012)? In particular, did the applicant have appropriate means to secure a fresh adversarial hearing, once he had learnt of the decision against him (see Bartaia v. Georgia , no. 10978/06, § 29, 26 July 2018)?   2.     Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, (a)     have the domestic courts been diligent in informing the applicant of the proceedings (see Zavodnik v. Slovenia , no. 53723/13, § 71, 21 May 2015), and (b)     did the domestic courts assess the necessity to adjourn or reschedule the hearing so that to allow the applicant to attend it if he wished to do so (see Gankin and Others v. Russia , nos. 2430/06 and 3 others, §§ 27-42, 31 May 2016)?