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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
rights and freedoms, only mentioned in this convention, but not elsewhere. From this point of view, a lot
of cases of discrimination in taxation matters are considered as fair because of principle of "wide margin
of appreciation" mentioned earlier in connection with Article 1 of Protocol 1. In majority of cases where
applicants were successful relates to different taxation of men and women in similar circumstances and
the most of cases deal with obviously unreasonable and unjust discrimination, except one particularly
interesting 32 . According to the law of Land Baden-Wurtenberg (Germany), the young men (males only)
had been obliged to pay special duty instead of service in local fire brigade (similar to military service).
The ECNHR and the ECTHR considered that this practice as unjustified discrimination, because
nowadays there is no practical possibility to serve in the fire brigade and, accordingly, such duty is just a
tax imposed only on males. (Baker, p.318).
One interesting issue concerns the discrimination on the ground of residence. The general principle can be
found in special literature, that non-residents are usually not in fact in the same position as residents 33 .
This principle is well-known but, nevertheless, it is very hard to find explanations why this principle still
exists. In most of cases disputes usually arise from different domestic rules, imposing some tax
exemptions for residents and denying ones to non-residents. This idea might be recognized as an
important course of surviving for small separated countries during the last centuries, but now, in XXI
century when goods and persons may travel from one side of Europe to other side within few hours and
after a decades of building united Europe, I believe this "principle" needs serious examination, first of all
from the point of view of European Treaty.
There was only one case 34 where ECTHR discussed this practice. The applicant, resident of Finland but
working in Sweden could not "contract out" of Sweden church tax while residents of Sweden in the
similar circumstances could. ECTHR easily recognized such practice as a violation of Article 14. 35
5. Article 7 and prohibition of criminal law retroactive force.
Article 7 provides:
“Article 7 36 – No punishment without law
1 No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was
committed.
2 This article shall not prejudice the trial and punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to the general principles of law recognized by
civilized nations.”
32 Schmidt v. Germany, app. No. 13580/88
33 For example, (Baker, page 319): "...Non-residents would not normally be in an objectively comparable position to residents"
and also (Ben J.M. Terra, Peter J. Wattel, European tax law, 2nd edition, 1997) page 29 "... there is a fundamental difference in
tax treatment of residents and non-residents. This is explicitly allowed by the OECD model Income and Capital Tax Treaty.
That Model, which is widely used by the EC Member States, although containing a clause prohibiting tax discrimination based
on nationality of the taxpayer or of its shareholders (Art. 24), clearly does not regard residents and non-residents as in the same
position for tax purposes..."
34 Darby v. Sweeden, App. No. 11581/85
35 Baler, 2000, p. 319
36
Heading added according to the provisions of Protocol No. 11 (ETS No. 155).
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ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?