Free_Law_Journal-Vol.. - Free World Publishing Inc.

FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
As we can see from the first part of the Article 6, the "Right to fair trial" covers two types of disputes
concerning:
- determination of civil rights and obligations
- criminal charge.
Can the tax proceedings be considered as "determination of civil rights and obligations"? The general
answer of ECTHR is clearly "no"; but the reasons for this approach are unclear at least in two dimensions.
The first of these two dimensions has to do with the interpretation of terms "civil law" and "civil rights
and obligations". The first case, where the position of ECNHR was set by very clear manner, was the case
of "X vs. Belgium" 9 , application No. 2145/64. ECBHR stated: "That the rights and obligations on which
the local tax tribunal had to rule arose, however, out of one of the areas of public law, tax law, and not
from civil law;...". This position was repeated many times, but during almost 30 thereafter there have not
been more detailed or clarified explanations from ECNHR and ECTHR, why "civil rights and
obligations" should be considered only as a close interpretation of "rights and obligations, generated from
the area of civil law".
This critical approach was discussed in the important recent case "Ferrazzini v. Italy" 10 The major
importance of this case is that ECTHR made an attempt to reconsider its own "well-established" case law
concerning the general inapplicability of Article 6 to the general tax proceedings. In their dissenting
opinion judges P. Lorenzen, C.L. Rozakis, G. Bonello, V. STRÁŽNICKÁ, C. BÎRSAN, M. FISCHBACH stated:
"...The Convention does not contain any definition of what is meant by “civil rights and obligations”.
Even if the Convention institutions have ruled on this issue several times over the years and more than
once revised earlier case-law, such a definition is not to be found in the case-law. The Convention
institutions have ruled on the applicability of Article 6 in that respect on a case-by-case basis, although
some important general elements have been identified.
3. In order to understand the present case-law and the possible need to revise it, it is in my opinion
essential to recall the historical background for introducing the concept “civil” into Article 6 § 1 – a
concept which is not found in the English text of the corresponding Article 14 of The International
Covenant on Civil and Political Rights. Article 8 of the American Convention on Human Rights, on the
contrary, expressly covers tax disputes (“rights and obligations of a civil, labour, fiscal or any other
nature”).
The travaux préparatoires relating to Article 6 of the Convention – closely linked to those of Article 14 of
the Covenant – demonstrate in my opinion the following: (1) it was the intention of the drafters to exclude
disputes between individuals and governments on a more general basis mainly owing to difficulties at that
time in making a precise division of powers between, on the one hand, administrative bodies exercising
discretionary powers and, on the other hand, judicial bodies; (2) no specific reference was made to
taxation matters, which are normally not based on a discretion but on the application of more or less
precise legal rules; (3) the exclusion of the applicability of Article 6 should be followed by a more
detailed study of the problems relating to “the exercise of justice in the relations between individuals and
governments”; accordingly, (4) it seems not to have been the intention of the drafters that disputes in the
field of administration should be excluded forever from the scope of applicability of Article 6, §1"
9 Baker, 2000, p.307
10 App. No. 44759/98.
ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
87