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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
Thus, we can draw a conclusion that ECTHR considers repeating tax offences as separate acts 40 , not as
ongoing crime and retroactive validity of law, imposing criminal responsibility for tax offences is
incompatible with Article 7.
6. Additional articles
Some articles of the Convention produced relatively small amount of cases. There were only few cases,
where applicants challenged tax issues based on this articles and succeeded.
Article 4 provides as follows:
"Article 4 1 – Prohibition of slavery and forced labour
. . .
2 No one shall be required to perform forced or compulsory labour.
3 For the purpose of this article the term “forced or compulsory labour” shall not include:
d any work or service which forms part of normal civic obligations." 41
Only two cases were raised under this article 42 . In these cases applicants claimed that necessity to
calculate and withhold tax without any compensation is the forced labor, as it recognized by Article 4.
Both of these cases were resolved by the Commission, and in both of cases applications were rejected on
the ground of paragraph 3b. The Commission considered this work as the "part of civic
obligations".(Baker, 2000, p. 323)
There are some questions still exist after examining the decisions of the Court organs on these cases. Why
were not carefully examined the quantitative characteristics of this work? It is obvious, that necessity to
calculate and withhold tax certainly implies the necessity for the obliged person to spent his/her/its money
for this work, which is absolutely useless for the person. Sometimes the amount of work may be
enormous, and that may guide interference with this article and the Article 1 of Protocol 1. The most
possible answer is that these decisions were guided by the arguments of practice rather that the
arguments of principle.
We may also find some minor controversies inside the provisions of the Article 4. Part 3b may easily
undermine the whole article, because there is no formal limitations for "normal civic obligations" and the
imagination of the officials may invent some very unpleasant forms of forced labor.
Probably, the text of the article 4 should be clarified and extended.
Article 5 of the Convention "Right to Liberty and Security" contains detailed conditions under which the
detention of a person might be recognized as lawful. This article has been examined in small number of
cases involving criminal investigations concerning tax evasion.
Article 8 provides as follows:
"Article 8 – Right to respect for private and family life.
40 See more about definition of "Continuing offence in Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, § 33, ECHR
2001-II.
41 The quotation is the part of the Article, that may be important for discussing issues.
42 For example, "Four companies v. Austria, app. No. 7427/76 and Borghini v. Italy, app. No. 21568/93.
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ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?