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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
There has not been any case, where an applicant has tried to ask the court to apply Article 6 to ordinary
tax proceedings basing his position on the Convention's travaux préparatoires.
Also one may look at the position of ECNHR and ECTHR from the point of view of the Heading of the
Article 6 : "The right to fair trial" 11 . Thus, if we do not recognize applicability of this article to ordinary
tax proceedings, we do not recognize tax proceedings as a trial at all; and, accordingly, we leave a
taxpayer in his dispute with tax authorities mainly without protection of the Convention . As was
mentioned before, the main reason why ECNHR and ECTHR decided to leave the ordinary tax
proceedings without protection of Article 6, was the opinion, that these proceedings are generated from
the "...areas of public law...". Thus, this approach rises the danger to leave without protection of the
Convention a lot of other potential disputes between citizens and state, for example, questions concerning
compulsory military service for young men.
In the same Ferrazzini case another judge did not agree with general principle of inapplicability of Article
6 , but on the different ground. In his concurring opinion Judge G. Ress stated:
“I consider that the aspect of immediate enforcement, which presents similarities with the effect of
penalties and can be even more severe from an economic point of view, should not be excluded a priori
from the scope of application of Article 6. Even if tax matters, at least generally speaking, still form part
of the hard core of public-authority prerogatives, there is an aspect in which the State transgresses those
prerogatives and enters a sphere in which the individual should, in a democratic society, be able to
challenge such a duty on the taxpayer by arguing that there has been an abuse of rights in immediate
enforcement proceedings.” Thus, in Ferrazzini case six of seventeen judges refused to maintain the
"inapplicability" principle.
The second of two dimensions is the interpretation of the term "tax". Let us have a closer look at the case
No. 19005/91 "Schouten and Meldrum v. The Netherlands". Deciding this case ECTHR determined that
the dispute, involving dispute concerning not taxes, but social security contributions, should be considered
as "determination of civil rights and obligations" 12 . This decision was made despite similar legal and
economic nature of taxes and social security contributions 13 . In following similar cases ECTHR has
continued to maintain such practice. 14
May tax proceedings be considered as "criminal charge"? The general answer of ECTHR is clear: yes, if
the case satisfies to three so called "Engel criteria" (Formulated in the decision of the case "Engel vs. The
Netherlands") 15 . The criteria are:
- classification of the proceedings in domestic law
- the nature of the offence
- the severity of the penalty which may be imposed. 16
11 Heading added according to the provisions of Protocol No. 11 (ETS No. 155).
12 Baker, 2000, p. 308
13 It would be very interesting to see possible future decision of ECTHR, where the respondent might be the country, where
the social security contributions just named "social security tax", and the nature of this tax is the same as "social security
contributions". How will ECTHR deal with this definitional snare?
14 See for example Salomonsson v. Sweden (Application no. 38978/97), Lundevall v. Sweden (Application no. 38629/97) and
others.
15 Baker, 2000, p. 310
16 ECTHR stated this matter in the case "Västberga taxi actiebolag and Vulic v. Sweden"(app. No. 36985/97) by this way: "
The Court reiterates that the concept of “criminal charge” within the meaning of Article 6 is an autonomous one. In
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ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?