Bridging a Sea: Human Rights and Supranational Limits to Tax Law

Abstract

Human rights have demonstrated an ever increasing importance amongst the various limitations to taxing powers of the sovereign States. Under a purely legal point of view, however, the concept of Human rights and their extension blurs, depending on the Treaty mentioned, the agreement concluded, and even on the territorial or social context they're applied (or should be applied) in. Being this research focused on the Mediterranean experience, Human rights should be intended as a sort of bill of fundamental rights and freedoms attributed to the taxpayer, both during the procedure of the tax reassessment and during the tax application. In this respect, the following paper shall be focused on the bill of rights, which have potentially an influence both on European and on Middle East countries in an attempt, provocative as the title is, to set a bridge across the Mediterranean sea. More to the point, the attention shall be given to the International Covenant on Human rights signed by the UN Countries and, only in a second stage to the European Convention on Human rights that, even if it is applicable to European countries, nonetheless is extended to all the countries participating the Council of Europe and therefore to the EU only. The results discovered differ.

Under a UN perspective a number of cases involving the Covenants was recorded, but in non of them the taxpayer was successful in his defense. Nonetheless their study and their application is important insofar the Human Rights Committee (HRC a sort of Judge of the rights) implicitly admitted that taxation must be consistent with non discrimination, protection of family life, etc. It could be argued that a 'Human rights' test is possible in tax law and that taxation can't be arbitrary in this respect but has to be exercised in ways and means respectful of these basic rules.

For what concern the (purely) European perspective, the European Court of Human rights has further developed this conclusion, setting up a more efficient and binding system of protection of the individual taxpayer.

It's not so easy to extend these result to the Middle east countries: of course they are not bound to the ECHR decisions, and in the case law of the HRC no Middle East county was ever involved. Moreover, cultural and religious differences and peculiarities could also work, prima facie, against a reciprocal understanding in taxation law.

However, the basic thesis of this brief paper is that starting from the HRC interpretation of taxation as a social phenomenon a dialogue is possible and the two different sided of the Mediterranean sea are closer than what it seems: perhaps closer enough to build a bridge.

Keywords: Eu tax law, human rights, human rights and taxation, zakhat, dhimmi, deprivation of property, taxation

JEL Classification: K34