VAUGHAN v. ITALY
Inadmissible
Christos Rozakis
The applicant is a United States national, born in 1947 and currently residing in London.  A. 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”.