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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. 97 ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) Bibliography 1. Philip Baker. Taxation and the European Convention on Human Rights. IBFD "European Taxation". Augues 2000, page 298, (Baker, 2000). 2. Marjaana Helminen. Finnish International Taxation, Helsinki, WSOY, 2002, page 3, 15 (Helminen,2002) 3. Ben J.M. Terra, Peter J. Wattel, European tax law, 2nd edition, 1997 4. T. Viherkenttä. Tax Incentives in Developing Countries and International Taxation. Kluwer, Finnish Lawyer's Publishing Company, 1991 ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW? 98
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