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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others."
The composition of this article is similar to article 1 of Protocol 1: The Right is declared in the first part of
the article and possible limitations of this right mentioned in the second part. Analyzing Courts' practice
we can see the Court Organs' approach, similar to the approach of the Article 1 of Protocol 1: States'
organs may interfere the right, mainly during investigation and information-seeking activities of special
bodies, but these interferences need adequate judicial safeguards. The most important of the cases raised
under this article is the case "Funke, Miaihe and Cremeux v. France" (apps. No. 10828/84; 12661/87 and
11471/85). All of these applications have dealt with the search of premises of applicants by the officers of
French Custom and seizure of documents. The Court found the Violation of Article 8 because of the lack
of judicial safeguards preventing abuse of the rights to search and seizure by State Bodies.(Baker,2000, p.
319)
Article 9 provides as follows:
"Article 9 – Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in community with others and in public or private,
to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of public safety, for the protection of public
order, health or morals, or for the protection of the rights and freedoms of others."
On the first thought, there is no link between this freedom and the taxation at all. The Court organs have
the same opinion: there have not been successful for applicants cases defended under this article. The
main idea of Courts' organs can be expressed as "The freedom of religion does not mean the freedom from
taxation". (Baker, 2000, p. 321). In the decision on the case of "Sivananda de Yoga Vedanta" v. France
(App. No. 30260/96) the ECNHR told: "...Commission cannot read in Article 9... a right under which all
of the activities of an association having a religious or cultural character would be totally exempt from tax
..." and "...no way implies that churches or their members should be granted a different status from that of
other taxpayers."
We should also pay some attention to the Article 4 of the Protocol 7 (Article 4/7):
"Article 4 – Right not to be tried or punished twice
1 No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the
same State for an offence for which he has already been finally acquitted or convicted in accordance with
the law and penal procedure of that State." 43
Recently ECTHR considered few cases concerning this article, but not involving taxation matters. In these
cases 44 applicants were punished first by Administrative fine and then by fines under the Criminal code
43 The quotation is the part 1 of the Article, that may be important for discussing issues.
44 CASE OF FRANZ FISCHER v. AUSTRIA, (Application no. 37950/97), CASE OF FRANZ FISCHER v. AUSTRIA,
(Application no. 37950/97), CASE OF W.F. v. AUSTRIA, (Application no. 38275/97)
ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
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