SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47129/99

by Edithe VAUGHAN

against Italy

The European Court of Human Rights ( Second Section) sitting on 24 August 1999 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr B. Conforti ,

Mr G. Bonello ,

Mrs V. Strážnická ,

Mr P. Lorenzen ,

Mrs M. Tsatsa-Nikolovska , Judges ,

with Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 December 1998 by Edithe Vaughan against Italy and registered on 29 March 1999 under file no. 47129/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United States national, born in 1947 and currently residing in London.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The particular circumstances of the case

In 1976 the applicant opened a clothes shop in Florence and in 1980 she engaged a certain Mrs P. as a trainee sales assistant. In February 1982 Mrs P. was employed as a full time shop assistant.

In June 1992 the applicant informed Mrs P. that she no longer required her services as she had sold the shop and was moving to London. The applicant left Italy on 24 September 1992. She returned to Florence on three occasions, in November 1992, January 1993 and May 1994.

On 31 August 1993 Mrs P. summoned the applicant to appear before the Florence Labour Magistrate. She claimed, inter alia , that the training contract was null and void and that she was entitled to a higher severance payment. Mrs P. requested the bailiff to serve the summons at the applicant’s address in Florence. As the applicant was absent, the bailiff, acting in accordance with Rule 140 of the Code of Civil Procedure (hereinafter referred to as the “CPC”), left a notice on her letterbox and sent her a registered letter, informing her that a copy of the summons had been deposited at the Town Council’s registry.

A number of witnesses were heard before the Florence Labour Magistrate on 12 and 28 January 1994. Neither the applicant nor her lawyer took part in these hearings.

In a judgment of 28 January 1994, filed with the registry on 4 February 1994, the Florence Magistrate accepted Mrs P.’s claim and ordered the applicant to pay to her former employee the total sum of 16,314,971 ITL (approximately 55,250 FF). This judgment was served on the applicant on 8 April 1994 at her address in Florence in accordance with Rule 140 of the CPC.

The applicant took cognisance of this judgment only on 23 May 1994, when she was on holiday in Florence.

On 15 September 1994 the applicant lodged an appeal with the Florence District Court, challenging the lawfulness of the serving of the summons and of the first-instance judgment. She alleged, inter alia , that as she had moved to England in September 1992,  the summons should have been served on her at her address in London. In this respect, the applicant requested the examination of a number of witnesses who could testify that Mrs P. knew her new address and telephone number in England. Observing that she had been unaware of the action brought against her and had taken cognisance of the Magistrate’s judgment only on 23 May 1994, the applicant requested the District Court to declare that the first-instance proceedings were null and void.

In a judgment of 15 March 1995, the Florence District Court held that the first-instance decision had became final on 8 May 1994 and rejected the applicant’s appeal as being out of time. It observed that, as appeared from the certificates issued by the Chamber of Commerce and the Registry Office, at the relevant time and at least until 1 October 1994 the applicant had her official address in Florence. Even assuming that Mrs P. was aware that the applicant had left Florence for London, nothing suggested that this moving had a definitive character. As the applicant’s name was still written on the letterbox placed in front of her house, the serving of the summons and of the Magistrate’s judgment was valid and lawful.

On an unspecified date, the applicant appealed on points of law, reiterating the objections raised before the District Court. In a memorial of 19 January 1998, she recalled that the competent authorities had refused to hear the witnesses who could have testified that she had sold her business and that Mrs P. knew her address and telephone number in England.

In a judgment of  27 January 1998, filed with the registry on 12 June 1998, the Court of Cassation , considering that the lower court’s decision was logical and well-reasoned, rejected the applicant’s claim. It recalled that a person was presumed to reside in the place of his or her official residence and that this presumption could be overruled only by very substantial elements. The relevant parts of this judgment read as follows:

“... the allegations of the applicant, aimed at obtaining a declaration that the serving ex Article 140 CPC was null and void, are based on three assertions:

a. that Mrs Vaughan moved to London;

b. that this moving had a definitive character;

c. that it is up to Mrs P. to show that her moving was not definitive ...

The District Court just considered the fact that the applicant’s residence was still in Florence, via Sdrucciolo dei Pitti no. 3, as this was evident not only from the bell and the letterbox, but also from the documents issued by the Town Council and the Chamber of Commerce. The applicant’s official address after her (alleged) moving remained unchanged ...

Even assuming that there had been a moving, it is not clear why it should be up to Mrs P. to prove that this moving “was not definitive”. The objection has been raised by Mrs Vaughan. It is up to her to prove the facts on which her objection is based...”.

The Court of Cassation noted that Mrs Vaughan did not produce any relevant document proving her moving to London, then continued as follows:

“In her appeal, Mrs Vaughan requested the District Court to examine a number of witnesses who should have testified that Mrs P. was aware of her moving to London ... On this point, the Court shares the District Court’s finding that “even assuming that [Mrs P.] was aware that Mrs Vaughan had left Florence ... this does not mean that she should have inferred that this moving was a definitive one...”. The District Court’s reasoning is clear: two facts should be proved, the moving and its definitive character. This second element has not been proved and could not have been proved by the witnesses sought by the applicant ... This confirms that ... no moving has been proved, neither temporary, nor definitive. Therefore, the serving of the summons and of the first-instance judgment is lawful and the decision of the Florence Magistrate has now become final...”

B. Relevant national law

Article 140 of the CPC reads as follows: “If the actual delivery of the act is not possible because of the absence, lack of capacity or refusal of the persons indicated in Article 139 [the consignee, a member of his or her family, a person charged of his or her house or business], the bailiff deposits a copy of the act to be served at the Town Council ..., puts a notice ... on the front door of the consignee’s house or office and informs him or her by means of a registered letter”.

COMPLAINTS

1. Invoking Article 6 §§ 1, 2 and 3 of the Convention, the applicant complains about the unfairness of the labour proceedings.

2. The applicant claims to be a victim of a discrimination contrary to Article 14 of the Convention, taken in conjunction with Article 6.

THE LAW

1. Invoking Article 6 §§ 1, 2 and 3 of the Convention, the applicant complains about the unfairness of the proceedings before the Italian labour courts.

In so far as relevant, Article 6 reads as follows:

"1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...

  2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

  3. Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b. to have adequate time and facilities for the preparation of his defence;

c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... "

The applicant alleges that the summons and the first-instance decision were served on her at her former address and that she was not allowed to prove that the other party was aware of her real whereabouts. She considers that by “using the letter of the law” the national courts deprived her of the opportunity of defending herself in person and of her rights to attend the hearings and to have access to a tribunal. The Italian labour courts could not be seen as “independent and impartial” tribunals, as they wrongly assessed the witnesses’ statements and the facts on which Mrs P.’s claim was based. Under paragraphs 2 and 3 of Article 6, the applicant complains that she was judged “automatically guilty” because of her absence at the hearings, that she was not informed promptly, was denied any defence and was unable to examine or have examined witnesses.

The Court first notes that paragraphs 2 and 3 of Article 6 of the Convention refer to persons “charged with a criminal offence” and are therefore not applicable in the present case, which concerns a dispute over the applicant’s “civil rights and obligations” and therefore falls within the scope of paragraph 1 of this same provision.

The Court furthermore recalls that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. As a general rule, the assessment of evidence is a matter for the jurisdiction of the domestic courts (see, inter alia , the Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports of Judgments and Decisions 1999, § 28) and cannot be examined by the Court unless there is reason to believe that the tribunals drew arbitrary or grossly unfair conclusions from the facts submitted to them. In the present case, there is nothing to suggest that the Florence Magistrate assessed the evidence in an arbitrary or otherwise unfair manner.

As to the decision rejecting the applicant’s appeals, the Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among many other authorities, the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports 1997-VIII, p. 2955, § 31, and the Edificaciones March Gallego S.A. v. Spain judgment of 19 February 1998, Reports 1998-I, p. 290, § 33). The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. This applies in particular to the interpretation by courts of rules of a procedural nature such as servings of legal documents or time-limits governing the lodging of appeals (see, the Pérez de Rada Cavanilles v. Spain judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 43).

Further, it is apparent from the Court’s case-law that the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, the Pérez de Rada Cavanilles judgment cited above, p. 3255, § 44).

The rules on the serving of legal documents and on the time-limits for appeals are undoubtedly designed to ensure the proper administration of justice. In particular, the rule according to which a person is presumed to reside in the place of his or her official address is aimed at guaranteeing compliance with the principle of legal certainty. Those concerned must expect this rule to be applied. However, the rule in question, or the application of it, should not prevent litigants from taking part in the trial or making use of an available remedy.

In the instant case the summons and the first instance judgment were served on the applicant at her address in Florence. The applicant alleges that she could not take cognisance of these legal documents as from September 1992 she was residing in London. Therefore, she was unable to lodge her appeals before the expiry of the time-limits under Italian law.

However, the Court observes that the above situation is a mere consequence of the applicant’s failure to comply with the relevant national rules, notably to communicate her changes of address to the competent authorities, i.e. the Chamber of Commerce and the Registry Office. Such a duty cannot be seen as an excessive burden imposed on the applicant or be considered disproportionate vis-à-vis the legitimate aim sought to be achieved, having regard also to the fact that the presumption of residence was not an irrefutable one. Moreover, by leaving her name written on her former letterbox, the applicant confirmed that the legal presumption of her residence was correct. 

In the light of the foregoing, the Court considers that the applicant was not unduly hindered in her right of access to a tribunal and, accordingly, the essence of her right guaranteed by Article 6 § 1 was not impaired.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected according to § 4 of this same provision.

2. The applicant claims to be a victim of a discrimination contrary to Article 14 of the Convention, taken in conjunction with Article 6.

Article 14 of the Convention reads as follows:

" The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status ."

The applicant points out that judgments in labour disputes are executive in the first degree and that the Italian courts “rarely find for the employer”.

The Court considers that the applicant has failed to show that she has been treated differently from other persons in similar situations. The applicant’s allegations are therefore unsubstantiated.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected according to § 4 of this same provision.

For these reasons, by a majority, the Court

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis

  Registrar       President