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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
The sixth is the right to legal aid. This right is mentioned explicitly in the text of Article 6 and widely
recognized 25 . There might be one more recent case where the question about lack of legal aid could be
examined (among other legal issues) 26 , but the applicants lost their interest in the case, and according to
the article 37, § 1 of the Convention ECTHR decided that the case should be struck out of the list.
The article 6 of the Convention determines some other rights, which are not mentioned in the text of the
article explicitly, but are recognized as important principles being under coverage of "The right to fair
trial".
Probably the one of the most interesting and the most controversial is the right to silence. It means the
right not to incriminate oneself. This right is not explicitly mentioned in the text of article 6 of the
Convention, but recognized as a general principle, being an important part of fair trial. 27 The problem
concerning the right to silence is very important for tax disputes because tax authorities depend
significantly on the information provided by taxpayer himself. It is obvious that if taxpayers decide to
exercise their right to silence and refuse to submit their tax reports on the ground, that submitting these
reports may guide criminal charge, this act will paralyze the whole tax system. Thus, the Courts should
limit this right, based on arguments of principle, by recognition of the corresponding right of tax
authorities, based on the arguments of policy. The Courts decided to use the same approach as was used in
the question of applicability of the whole Article 6 to tax proceedings. The Courts' position is: taxpayers
may use their right to silence only within the tax procedures involving the criminal charges. The moment
of starting these proceedings should be determined in the same way as in the question of length of the
proceedings - when the person is "substantially affected". The leading case in this particular issue is,
probably, Funke v. France 28 . In this case Customs officers obliged applicant to deliver the statements of
his bank accounts in other countries. ECTHR considered this obligation as a breach of Article 6. This
position was upheld in relatively recent case J.B. v. Switzerland 29 , as described in Baker. 30
The next interesting question is the question of heritability and non-heritability of the tax fines. The
position of the Court organs is clear: in cases when tax fines may be considered as criminal charges
(according to the principles mentioned earlier concerning applicability of article 6), the principle of
personal character of criminal responsibility should be applied. Thus, these tax fines are not heritable 31 .
4. Article 14: Prohibition of discrimination.
Article 14 provides:
"Article 14 – Prohibition of discrimination
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status."
First of all, it is necessary to say that the Courts tend to interpret this article as "non-free-standing" rule.
According to the same principle of closed interpretation of the text of the Convention, as in the questions
of applicability of Article 6, the Courts consider this article as prohibiting discrimination in enjoyment of
25 Baker, 2000, p. 315
26 Case CASE OF M.C. AND OTHERS v. THE UNITED KINGDOM (Applications nos. 25283/94, 25690/94, 26701/95,
27771/95 and 28457/95)
27 Baker, 2000, pp. 314-315
28 Application No. 10828/84
29 Application no. 31827/96
30 Baker, 2000, pp. 314-315
31 Baker, 2000, pp. 312-313
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ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?