Convenzione europea dei diritti dell'uomo e tassazione

Although in many people’s opinion the European Convention on Human Rights has nothing to do with taxation, the evidence of its involvment comes out as a matter of fact. Actually, in the last years the European Court on Human Rights have heard an increasing number of tax cases, so that we could say it has become almost a “regular” tax court. The ECtHR has achieved more and more importance in tax matters, especially since its rulings are taken into account by national courts and arguably also influence tax policies of member States of the Council of Europe. Anyway, since from a tax perspective we have not any specific provision in the ECHR, we must look for which of its provisions can be more involved in taxation issues. The ECtHR’s jurisprudence is very helpful in this research. For example, Article 1 of the First Protocol to the European Convention of Human Rights is the most important one, as it defines the right to property as well as the right of States to tax their citizens. Over the last few years, on various occasions the Court has heavily criticized States which refuse to grant VAT refunds. In the Court’s opinion, the right to a VAT refund is a possession protected by a citizen’s right to property. Nevertheless, rulings by the ECtHR have also had an impact on tax policy, including direct taxes. The ECtHR’s decisions are also important with regard to the right to a fair hearing in tax disputes (Article 6 — Right to a fair trial). According to its case law, the right to a fair hearing applies exclusively to criminal charges and to the determination of civil rights and civil charges. At the same time, for its purpose of interpreting the European Convention of Human Rights, the ECtHR has classified many tax disputes as “criminal charges”. Case law by the ECtHR has also upheld citizens’ rights in various other relevant tax issues; the ECtHR has expressed views on important tax related issues such as discriminatory taxation, the right to privacy and freedom of conscience and religion. Last, but not least, the Court has decided that in tax disputes the principle of ne bis in idem, dealt with in Article 4 of Protocol 7 to the European Convention of Human Rights, applies, i.e. a citizen should not be punished twice for the same tax offence.