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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
challenged the practice, that French internal law was applied for the calculating of VAT instead of
European Community Directive. After detailed explanations ECTHR stated:
"...1. In the light of the foregoing, the Court finds that the interference with the applicant company's right
to the peaceful enjoyment of its possessions was not required in the general interest...."
Thus, we may draw a conclusion that the interest of European Community is recognized by the ECTHR as
"General interest" being more important than the interest of a Contracting State. This conclusion is not
surprising for those specialists who well know the practice of European Court of Justice, but can be lightly
confusing from the point of view of pure theory of law, because European Community is not mentioned in
the text of the convention as a "carrier" of "General interest" while Contracting State does. Here we may
see a good example how ECTHR interpreted fifty-years old Convention in accordance with the real needs
of present days.
The second legal problem needed additional discussion is a concept of "law". Court organs stated many
times that the term "Law" has exactly the same meaning in all the articles of the convention. This
approach, being reasonable in theory, in practice may create a lot of difficulties. The main problem
existing within this approach is the absence of legal definition, what is "law". Each country has own legal
system and own system of legal reasoning. For example, in Finland travaux preparatoires may be used in
the courts with relatively high degree of importance for legal reasoning, and in neighboring Russia
travaux preparatoires are not recognized as a source of law at all. These huge differences between
Contracting States' legal system guide consequent differences in legal practices. And then, when these
legal practices disputed in ECTHR in accordance with equal for all of Member States concept of law, it
may lead to conflicts and misunderstandings. Nowadays, as was mentioned before, ECTHR tend to
determine the "law" as "Statutes plus case law". The main problem within such approach is that in some
European countries case law is recognized as a source of law with a low degree of importance, especially
in Eastern Europe.
The applicability of this approach to criminal charges may guide to serious violation of Human Rights 46 . I
can easily imagine that, for example, in one of the former Soviet Union's republics an absolute adequate
provision of the Criminal Code will be "adjusted" by the case law in accordance with some political desire
resulting in an absolute incompatibility with basic Rights and Freedoms.
Courts organs' practice have great achievements as well as problems need to be resolved. On the current
stage of European integration these problems do not constitute serious danger, because they are
"compensated" by the extremely high level of general legal culture in the "old" European countries. But
some of these flaws I tend to consider as potentially dangerous. Even within the few following years they
may have a serious negative impact on situation with Human Rights, mainly in those countries where
general legal culture is not at the very high level. My concerns are based primarily on the assumption that
in countries of former "Socialistic camp" the adherents of the principle "Rights of the State more
important than Human Rights" are still powerful.
46 More about the question about criminal responsibility set up by case law see above, in the case L-GR v. Sweden", (app. No.
27032/95). It is interesting to note, that the most of the relatively old Court organs' decisions, that nowadays look controversial
and unconvincible, delivered by Commission, not by Court. Sometime the Court and the Commission directly contradict each
other, for example, Funke v. France, discussed above.
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ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?