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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
etc. before the actual notification from the authorities about possible charge? One might say that "if a
person does not know about these procedures, she/he cannot feel himself/herself suffered". However, the
situation is possible when the person feels himself/herself suffered, but cannot recognize the source of this
suffering because of the secret character of operations. The second question is: What about the case, when
authorities start investigation in fact but do not fix the start of this investigation officially? An individual
can not simply ignore some kinds of unofficial invitations to tax officials, when officers inform him about
possible charges without any official notification, and still enjoy his rights. Anyway, I hope that the
answers on these questions will be delivered in future.
The second right is the right to a court. It means that nobody should be denied the right to a court because
of non-fulfilling some special preconditions. Concerning tax disputes it can be, for example, the
obligation to pay taxes before appeal 21 . The right was formulated by ECTHR in the relatively recent case
"Vasberga taxi aktivebolag and Vulic vs. Sweden" 22 this way:
"92. The Court reiterates that Article 6 § 1 of the Convention embodies the “right to a court” – of which
the right of access is one aspect – as a constituent element of the right to a fair trial. This right is not
absolute, but may be subject to limitations permitted by implication. However, these limitations must not
restrict or reduce a person's access in such a way or to such an extent that the very essence of the right is
impaired. Furthermore, they will not be compatible with Article 6 § 1 if they do not pursue a legitimate
aim or if there is not a reasonable relationship of proportionality between the means employed and the aim
sought to be achieved [refernces omitted]."
The third is the right to independent and impartial tribunal. The possible violation of this right was
disputed only in small number of cases, and in all of these cases the Court could not find the breach.
Considering these examples we may see that the independence of a tribunal was derived primarily from
the analysis of formal characteristics of the tribunal such as the competence of this tribunal (e.g. does is
possess necessary power to resolve the factual and judicial issues) without examining other relevant
problems 23 .
The fourth is the right to public hearing. This is relatively rarely raising issue. It was discussed by ECTHR
in two very similar cases, "SALOMONSSON v. SWEDEN, (App. no. 38978/97)" and "LUNDEVALL
v. SWEDEN, (Application no. 38629/97)". These cases concerned with not taxes themselves but Social
Security benefits. In both of these the lack of oral hearings cases was discovered during Swedish
Administrative Courts' proceedings. There was no Court practice concerning this issue established before
2002.
The fifth is the guaranty set up by paragraphs No. 3a and 3d concerning the right to use the language that
an individual speaks and understands. These guarantees were discussed in the case "Cuscani v. United
Kingdom". 24 The defendant was an immigrant of Italian origin and had a poor English command. But the
Court decided, that the defendant is able to understand English good enough for participating in trial.
Defendant was convicted and filed a claim to ECTHR. ECTHR held that it was a breach of Article 6 of
the Convention. Decision on this case was delivered after Mr. Baker's publication.
21 Baker, 2000, p. 312
22 Application No. 36985/97
23 Baker, 2000, p. 313
24 Application (заявка № 32771/96).
ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
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