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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
clarify sometimes unclear and controversial articles of the Convention.[2;4] Let us take a closer look onto
particular articles of the Convention.
2. Article 1 of Protocol 1. "Protection of Property"
This is a very important article for the taxation matters and, furthermore, it is the only article of the
convention, that expressly deals with taxation 3 . Court practice concerning this article had no serious
changes or variations during the last three years. Thus, this chapter mainly evaluates results of Philip
Baker's research.
Article 1 of Protocol 1 provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be
deprived of his possessions except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws
as it deems necessary to control the use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The second paragraph explicitly sets up a taxation as an exemption to a right for protection of property.
And more, according to the ECTHR practice, the State can enjoy the "...wide margin of appreciation..." in
the questions tax legislation. This principle of "wide margin" has been expressed by ECTHR in the
decision on the case No. 15375/89 " Gasus Dosier and Fördertechnik GmbH vs. The Netherlands: "...case
concerns the right of States to enact such laws as they deem necessary for the purpose of securing the
payment of taxes...In passing that laws the legislature must be allowed a wide margin of appreciation...".
As we can see, the main idea of this article is the protection of property. However, we also can see that
this article justifies the "general interest" as a concept more important, than property. In other words, the
literal meaning of the text is, that this article protects the "general interest" more, than property. It might
be said, that the Convention simply can not defend the individual's property from State's "general interest"
in the very same property. Actual meaning of this norm, expressed by ECTHR in the same decision on the
case No 15375/89 "Fördertechnik GmbH v. the Netherlands", sets certain limitations on the "wide
margin". " ...the second paragraph of article 1 of protocol No. 1 must be construed in the light of the
principle laid down in the Article's first sentence. Consequently, an interference must achieve a "fair
balance" between the demands of the general interest of the community and the requirements of the
protection of individual's fundamental rights. The concern to achieve this balance is reflected in the
structure of Article 1 as a whole, including the second paragraph: there must therefore be a reasonable
relationship of proportionality between the means employed and the aims pursued..."
Thus, we can recognize the limitations on the "wide margin" set by the Convention:
- provisions of taxation legislation should be reasonable and proportionate;
- taxation should be done for the purpose of the general (public) interest.
It necessary to give a couple more detailed explanations to one of the limitations. Considering the term
"law", we should ask ourselves whether the term "law" implies only "statutes" or it also includes the
1.sub-legislative acts and 2.case law?
3 Baker, 2000, p.301
ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
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