Published on 7 July 2025
FIRST SECTION
Application no. 8411/22
Salvatore GARGIULO
against Italy
lodged on 28 January 2022
communicated on 20 June 2025
SUBJECT MATTER OF THE CASE
The application concerns the alleged unfairness of proceedings on account of overly rigid requirements for the burden of proof in order to reverse the presumption provided by Article 139 of the Code of Civil Procedure, as well as of the legal prohibition of witness evidence in judicial proceedings before tax courts.
In April 2009, the applicant was notified by the Cosenza Tax Collection Agency of two mortgage registrations (iscrizioni ipotecarie) on his properties pursuant to Article 77 of Presidential Decree no. 602 of 29 September 1973. The mortgages concerned the applicant’s tax debts and the sanctions applied for failure to pay such debts within sixty days from being served the tax collection notices (cartelle esattoriali di pagamento).
The applicant challenged the mortgage registrations before the Cosenza Provincial Tax Commission, arguing that he had never been served the tax collection notices, and accordingly the alleged debts they referred to should be considered time barred. The Provincial Tax Commission upheld the decision, finding that, according to the acknowledgment of receipt of the registered letters notifying the tax collection notices by postal service (avviso di ricevimento), the latter had been served on R.P., who declared to be authorised to receive them on the applicant’s behalf.
The applicant lodged an appeal before the Calabria Regional Tax Commission, arguing, inter alia, that he had never given any authorisation to R.P., who merely ran a butcher store in the building where the applicant had his residence. The Regional Tax Commission dismissed the applicant’s appeal, stating that he had failed to reverse the presumption, provided by Article 139 of the Code of Civil Procedure, that the recipient was authorised to receive documents on his behalf. In this regard, the Regional Tax Commission stated that the applicant could have obtained notarised written statements from R.P. and submitted them to the tax courts in order to reverse the presumption. Through order no. 22132 of 3 August 2021, the Court of Cassation rejected the applicant’s appeal. It found that the applicant had “the burden of proving the absence of an authorisation for R.P. to receive documents on his behalf”. According to the Court of Cassation, the applicant’s argument that he did not have any connection with R.P. did not in itself mean that there could not have been such an authorisation, which absence had to be specifically proven.
Relying on Article 6 § 1 of the Convention, the applicant complains of the alleged violation of the principle of equality of arms and the right to have a fair hearing. In particular, he argues that the burden of proof imposed on him to reverse the presumption provided by Article 139 of the Code of Civil Procedure was set too high. He further claims that pursuant to Article 7 § 4 of Decree no. 546 of 1992, which establishes a legal prohibition of witness evidence in judicial proceedings before tax courts, he could not obtain the attendance of R.P. as a witness before the competent courts.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings in the present case?
2. If applicable, was the presumption provided by Article 139 of the Code of Civil Procedure, that the person to whom the tax collection notices had been served was authorised to receive them on the applicant’s behalf, excessively difficult to rebut? In particular, was the presumption against the applicant confined to reasonable limits which took into account the importance of what was at stake for the applicant and maintained the rights of the defence (see, mutatis mutandis, Kangers v. Latvia, no. 35726/10, §§ 56-58, 14 March 2019, and Krebs v. Germany, no. 68556/13, § 47, 20 February 2020)?
3. Was the applicant prevented, in breach of Article 6, from requesting the examination of the R.P. who had made statements directly decisive for him, because of the provision enshrined in Article 7 § 4 of Decree no. 542 of 1992 (see, with regard to the criminal head of Article 6, Chap Ltd v. Armenia, no. 15485/09, §§ 41-53, 4 May 2017, and, a contrario, Jussila v. Finland [GC], no. 73053/01, § 46, ECHR 2006 XIV)?