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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
The answer to the first question is not clear yet. It was discussed in the decision in the case No. 25449/95
"Spacek sro vs. Czech Rebublic". The applicant claimed the lack of accessibility and foreseeability of the
one of book-keeping regulations, that was published only in specialized journal, but not in the Official
Gazette. ECTHR held that there has been no violation of Article 1 of Protocol 1. There is no clear
statement about legal force of sub-legislative acts, and the ground of this decision are complex legal
conclusions, as following:
“59...It considers therefore that, even assuming that the Rules and Regulations published in the Financial
Bulletin did not constitute legislative or regulatory instruments binding on citizens and legal entities in
general, within the meaning of the national law then in force, Špaček SW had accepted the Financial
Bulletin as an official public source of binding regulations, and had followed it for the purposes of
keeping its accounts “in compliance with accounting principles”, pursuant to section 25 of the Private
Business Activities Act."” and: "...In addition, taking into consideration that the applicant company as a
legal entity, contrary to an individual taxpayer, could and should have consulted the competent specialists,
the publication of the Regulations in the Financial Bulletin was sufficient."
Thus, we can only imagine, what kind of decision might be achieved if the applicant would have been a
natural person or if the case had been involving criminal charges and, consequently, possible violation of
Article 7 of the Convention.
Regarding the applicability of case law, the answer is clear: yes. In the same case "Spacek sro vs. Czech
Republic" the ECTHR stated: "...the Court considers that when speaking of "law", Article 1 of Protocol
No. 1 alludes to the same concept to be found elsewhere in the Convention, a concept which comprises
statutory law as well as the case law. It implies qualitative requirements, notably those of accessibility and
foreseeability."
This general principle of "wide margin" and also its general limitations lead to some specific consequent
issues, that were considered as a breach of Article 1 of Protocol 1.
One of the most important questions is: does the "wide margin" include rules providing the enforcement
of taxation? The general answer is "yes". ECTHR refused the number of claims concerning possible
breach of Article 1 of Protocol 1 by measures of the enforcement of taxation. 4 There are only few cases
where enforcement measures were considered as disproportional. 5
The second important question is the question about retroactive validity and invalidity of tax legislation.
The ECTHR encompasses only few cases rising the question: Is the retroactive force of tax legislation is
the breach of Article 1 of Protocol 1? The answer is: "no". In all of these cases retroactive validity was
considered as compatible with the Convention under conditions of proportionality and legality. Thus we
may assume that the lack of foreseeability of tax legislation as such is not considered by ECTHR as a
breach of the Convention. 6 Nevertheless, sometimes the lack of foreseeability of tax legislation may
stipulate criminal charges and create a danger of breach of article 7 of the Convention in connection with
retroactive validity of law, imposing criminal responsibility for tax offences. One recent and very
interesting case will be discussed later, during the examination of Article 7.
4 Baker, 2000, pp.305-306
5 For example: Lemonie vs. France, application No. 25242/95; Hentrich vs. France, application No. 13616/88.
6 Baker, 2000, pp.304-305
ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
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