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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
Philip Baker paid minor attention to this article. Analyzing case of L-GR v. Sweden 37 he concluded that
necessary elements of the offence may be described in the existing case law (not in the statute) and it is in
conformity with the Convention.
The text of part 1 of the article 6 contains some uncertainties, one of which (what is "law" under this
article?) was discussed in the chapter concerning Article 1 of Protocol 1.
Another important uncertainty arise potential questions: "What is the moment of tax offence?", "Can the
retroactive validity of the criminal law concerning tax offence be justified?" and others similar issues
about legal validity of law during the time and its possible interference with this Article. The answers on
these questions are not obvious. Of course all civilized lawyers recognize very important principle which
strictly forbids retroactive validity of criminal law. Nevertheless, the criminal responsibility for tax
offences very often is a result of breach of those rules, that come not from the text of Criminal Code (or
another analogous document) but from other supplemental documents - for example, different bookkeeping
regulations, accounting standards and so on. As we remember from the discussion above on
Article 1 of Protocol 1, the Courts tend to consider retroactive validity of tax legislation itself compatible
with the provisions of the Convention. 38 What will happen, if the criminal responsibility is a result of
breaching some rule containing in the sub-legislative act with a retroactive force? There are no cases yet,
where such circumstances were dealt with.
Concerning the question about determining the precise moment of tax offence and possible "ongoing"
character of tax offences, we should take a closer look on the very recent (decision delivered 21.04.2003)
and interesting case "Veeber v. Estonia (No. 2)" 39 . During relatively long period of time (about two years,
1993-1995) the applicants have made some fictitious documents concerning calculating of taxes.
Domestic prosecutors considered them as "...having intentionally, continuously and on a large scale
concealed objects of taxation and submitted distorted data on the companies’ expenditures." During this
time period Estionia's legislation concerning criminal responsibility was changed dramatically. In the
beginning of the period one important necessary condition for criminal responsibility has existed: the tax
offence may guide to the criminal responsibility only if charged person was previously Administratively
punished for (other) tax offence. In January 1995 this condition was dismissed. Domestic courts held that
the applicant have done "continuous" ongoing crime and convicted him according to the 1995 Law.
ECTHR stated: "...The question to be determined is whether the extension of the law to acts committed
prior to that date infringed the guarantee set forth in Article 7 of the Convention.
32. In this connection the Court recalls that it is not its task to rule on the applicant’s criminal
responsibility, that being primarily a matter for the assessment of the domestic courts, but to consider,
from the standpoint of Article 7 § 1 of the Convention, whether the applicant’s acts, at the time when they
were committed, constituted offences defined with sufficient accessibility and foreseeability by the
national law (references omitted) .... 37. In these circumstances the Court finds that the domestic courts
applied retrospectively the 1995 law to behaviour which previously did not constitute a criminal offence.
38. It follows there has been a violation of Article 7 § 1 of the Convention."
37 Application No. 27032/95, case decided by the ECNHR.
38 See, for example, ABCD v. United Kingdom ( app. No. 8531/79, resolved by Commission), Building Societies v. United
Kingdom (app. Nos. 21319/93, 21449/93, 21675/93, resolved by Court), Voggenberger Transport GMBH v. Austria (app. No.
21294/93, Commission), Nap holdings UK Ltd v. United Kingdom (app. No. 27721/95, Commission), mentioned by Baker. In
all of these cases was not found violation of Article 1/1 by retrospective validity of tax legislation. Nevertheless, we should
remember, that they are relatively earlier cases.
39 Application no. 31827/96
ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
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