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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
by
ANDREI AFANASSIEV *
Despite the fact that general questions of Human rights are widely discussed not only in special
literature, but on almost all levels of the society, the interference of Human rights and taxation is
discussed far less. Amount of specific publications devoted to this topic is relatively small. More than
three years passed since in August 2000 was published Philip Baker's article "Taxation and the European
Convention on Human Rights" (Baker, 2000) [1] which is, in my opinion, is the leading work in Europe in
this particular field of study. The article suggests a very effective method for finding an answer to the
question: how wide and general provisions of the "Convention for the protection of Human Rights and
Fundamental Freedoms" signed in Rome on 4th of November, 1950 (ETS No. 5) (with following
amendments) 1 should be applied in actual cases, sometimes very tangled and complicated.
Nevertheless, three years is a relatively long time when tax law is concerned. The weight and importance
of some principles and norms of the Convention were reconsidered. The main purpose of this article is to
describe changes in the generally recognized in the Western European approach to the different questions
of Human rights in the area of taxation. This article concentrates on the analysis of relatively recent cases.
Each of the chapters first briefly describes situation before the year 2000, as found by Philip Baker article,
and then describes recent developments.
1. General overview.
The Convention determined the list of civil and political rights and freedoms. The Contracting States took
onto themselves the responsibility to maintain these rights and freedoms and set up legal mechanisms for
the enforcement of these obligations. The first mechanism is the European Commission of Human Rights
(ECNHR),(1954); than the European Court of Human Rights (ECTHR),(1959) 2 and, finally, the
Committee of Ministers of the Council of Europe composed of the Ministers of Foreign Affairs of the
Contracting States or their representatives were established.
Since 1950 twelve additional Protocols have been adopted. Protocols Nos. 1, 4, 6, 7 and 12 have imposed
additional rights and liberties guaranteed by the Convention. Protocol No. 11, which came into force on 1
November 1998, implemented the "...replacing the existing European Commission and Court of Human
Rights with a new permanent Court". For a transitional period the Commission has been continuing
resolving cases it had previously declared admissible. Other protocols contain procedural provisions.
There are some other additional documents containing Human Rights provisions and related issues in
general and dealing with taxation in particular. I tend to consider the EC treaty as the second important
document after the Convention. This long and detailed documents contains plenty of rules, some of which
set up Human rights already mentioned in the Convention, but broader and more precisely (for example,
Article 12 concerning non-discrimination) (Helminen, 2002)[2]. Some important rules concerning Human
Rights and taxation can be found in the Double tax treaties. These treaties also may be useful because they
*Doctoral student, Department of Financial Law, University of Helsinki, Finland.
1 Hereinafter - the Convention
2 Hereinafter these organs together are named "Court Organs"
ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
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