Available in Russian
Author: Ilya Lifshits
DOI: 10.21128/2226-2059-2024-4-50-68
Keywords: taxes in international tribunals; taxpayer’s rights protection; protection of property; right to a fair trial; prohibition of discrimination; European Court of Human Rights; UN Human Rights Committee
Taxation is the most frequent and obvious intervention in the property of individual. Such an intervention may be accompanied by a deprivation of property and an infringement of other taxpayer’s rights: right to respect for one’s private and family life, one’s home, right to non-discrimination and others. Consequently, European Court of Human Rights in almost all of its tax cases has to respond to the same question: has the deprivation of possession been executed in the public interest, and has the balance between the protection of the public interest in securing the payment of taxes and applicant’s rights been upset. Such a weighing of different values is always a complicated task for the Court which has developed several tests applicable in almost all of the Court’s cases: firstly, the Court reviews lawfulness of the intervention while assessing not only the existence of the law applied but also its quality; secondly, the Court reviews whether the procedure was followed in the course of intervention; thirdly, it assesses the presence of the public interest and its materiality. With regard to the latter test, the Court established a rule that there is always a public interest assumed if a tax is established, and the states have a lot of discretion when it comes to deciding how to collect taxes. Obviously, the Court created rather effective tools to scrutinize state power, its ability to deprive people of their private property and assess the procedure of such a deprivation. For its part, the UN Human Rights Committee taxation jurisprudence is based on the two main articles: non-discrimination and a right to a fair trial, since the International Covenant on civil and political rights does not enshrine a guarantee to protect property rights. However, these legal grounds provide ample scope for the Committee’s involvement in reviewing tax enforcement practice. The author believes that approaches developed by the European Court of Human Rights and the UN Human Rights Committee should become determinant not only in the domestic tax agenda, but also in the development of international legal instruments in the framework of tax cooperation.
About the author: Ilya Lifshits – Doctor of Sciences in Law, Professor, , Department of International Law, Russian Foreign Trade Academy, Moscow, Russia.
Citation:
Lifshits I. (2024) “Nezvanyy gost'”: nalogooblozhenie v praktike Evropeyskogo Suda po pravam cheloveka i Komiteta po pravam cheloveka OON [“Uninvited guest”: Taxation in the jurisprudence of the European Court of Human Rights and of the UN Human Rights Committee]. Mezhdunarodnoe pravosudie, vol.14, no.4, pp.50–68. (In Russian).
References
(2024) Taxation at the European Court of Human Rights. Human Rights Law Review, vol.24, no.1. Available at: https://academic.oup.com/hrlr/article-abstract/24/1/ngad041/7512016 (accessed: 15.10.2024).
Attard R., de Albuquerque P.P. (2023) Taxation at the European Court of Human Rights, Alphen aan den Rijn: Wolters Kluwer.
Baker P. (2023) Tax Treaties and Human Rights Law. In: Haase F., Kofler G. (eds.) The Oxford Handbook of International Tax Law, Oxford: Oxford University Press, pp.417–432.
Baker P. (2024) Literature Review: Robert Attard and Paulo Pinto de Albuquerque, Taxation at the European Court of Human Rights, Wolters Kluwer, 2023. Intertax, vol.52, no.6/7, pp.517–517.
Baker P. (2001) Taxation and Human Rights. GITC Review, vol.1, no.1, pp.1–14.
Carinci A., Tassani T. (eds.) (2022) I diritti del contribuente: Principi, tutele e modelli di difesa, Milano: Giuffrè.
Gribnau H.L.M. (ed.) (2003) Legal Protection against Discriminatory Tax Legislation: The Struggle for Equality in European Tax Law, London; New York: Kluwer Law International.
Hongler P. (2021) International Law of Taxation, Oxford: Oxford University Press.
Kokott J., Pistone P. (2022) Taxpayers in International Law: International Minimum Standards for the Protection of Taxpayers’ Rights, München: C.H.Beck.
Lifshits I. (2023) Transgranichnoe nalogooblozhenie: “Zolushka” mezhdunarodnogo prava, kotoraya mechtaet stat' korolevoy [Transboundary taxation: “Cinderella” of international law who dreams to become a queen]. Zhurnal VShE po mezhdunarodnomu pravu (HSE University Journal of International Law), vol.1, no.1, pp.39–52. (In Russian).
Pijl H. (2007) Human Rights and Admissibility in Trivial Tax Matters. European Taxation, vol.47, no.6, pp.299–300.
Vorob'yova N. (2013) Nalogooblozhenie i pravo sobstvennosti: pozitsii Evropeyskogo Suda po pravam cheloveka [Taxation and property rights: the European Court of Human Rights’ approach]. Mezhdunarodnoe pravosudie, vol.3, no.4, pp.32–39. (In Russian).
Yatsenko I., Pak V. (2004) Praktika Evropeyskogo Suda po pravam cheloveka v otnoshenii del, svyazannykh so sporami fiskal'nogo kharaktera [Jurisprudence of the European Court of Human Rights сoncerning fiscal disputes]. Sravnitel'noe konstitutsionnoe obozrenie, vol.13, no.4, pp.113–118. (In Russian).
Zimnenko B.L. (2023) O znachenii dlya sudov Rossiyskoy Federatsii praktiki mezhdunarodnykh dogovornykh organov OON [On the importance for the courts of the Russian Federation of the practice of international treaty bodies of the United Nations]. Pravosudie, no.1, pp.54–90. (In Russian).