Fourth International Conference on War Tax Resistance and Peace Tax Campaigns - Brussels, Belgium 1992

Court Cases

Introductory text - Court cases: facts, evolutions

Introductory text to workshop number 8 of the IVth International Conference on War Tax Resistance and Peace Tax Campaigns - a non-limitative journey. 

Canada 

I will make a short journey around the world and will start in Canada. From Canada came an application of Jerilynn Prior to the UN-Human Rights Committee in Geneva. This committee has its base in the Optional Protocol to the International Covenant on civil and Political Rights. This committee is not the UN-Human Rights Commission, the commission of government-representatives meeting each year in February/March.

Dr. Prior is a Quaker and because of her religious convictions she has refused to participate in any way in Canada's military efforts. Accordingly she has refused to pay a certain percentage of her assessed taxes, equal to the amount of the Canadian Federal budget earmarked for military appropriations. Taxes thus withheld have instead been deposited with the Peace Tax Fund of Conscience Canada, Inc., a non-governmental organisation. The Canadian tax and judicial authorities denied her the right to do this. The same did the UN-Human Rights Committee in its decision d.d. November 7, 1991. The committee noted that Dr. Prior sought to apply the idea of conscientious objection to the disposition by the State of the taxes it collects from persons under its jurisdiction. The committee considered that article 18 of the Covenant (freedom of conscience and religion) certainly protects the right to hold, express and disseminate opinions and convictions, including conscientious objection to military activities and expenditures, but that the refusal to pay taxes on grounds of conscientious objection clearly falls outside the scope of protection of this article. The UN-Committee therefore declared the application inadmissible.

In my opinion is this decision ill founded: The facts as submitted in the application of Dr. Prior did raise issue under article 18 of the international Covenant of Civil and Political Rights. Article 18 of the Covenant certainly protects the right to hold, express and disseminate opinions and convictions, including conscientious objections to military activities and expenditures. The refusal to pay taxes on grounds of conscientious objection clearly falls within the scope of protection of article 18. Paying taxes is a personal act. A part of the taxes being used for military expenditure, a person can have conscientious objections against paying that part of the taxes. Tax diversion is the only method in which pacifists can manifest their beliefs. Refusal to entertain such a notion does those involved a great injustice.

It would be absurd and perverse to argue that war tax resistance is not a manifestation of pacifist beliefs. The right of war tax resistance has to be regarded as deriving logically from the fundamental rights of the individual in democratic rule of law states, which are guaranteed in article 18 of the Covenant. War tax resistance is the most direct and only method by which a pacifist can express his ideas and the position that this does not come within the ambit of Article 18 would be absolutely illogical. The Covenant has the function to assist minorities and protects them from being overlooked and trampled on; it is a barrier to utilitarian oppression. Restrictions may be justified on the grounds listed in Article 18 paragraph 3. Of the justified derogations under Article 18 only three are relevant. The protection of rights and freedoms of others, protection of public order and the protection of public safety. Under the heading public safety we must deal with what is commonly known as the floodgates argument. Applying this idea to the case of the tax resister we are faced with the dilemma that if pacifists could divert their taxes away from purposes they found morally abhorrent, then this would give rise to a multitude of other claims by others who found expenditure on other purposes objectionable. Or would it?  War tax resisters have argued that they are generally willing to pay the full amount of tax due, and therefore they are not being accorded any unfair privilege. Of course Article 18 prescribes states to respect all sorts of conscientious objections. 

Netherlands

Herewith I come to the case of Jan and Corry van Kerkwijk in the Netherlands. The van Kerkwijks had objections to pay taxes ad ƒ 572, - in 1983, symbolically for the 572 cruise missiles planned to be based in Europe.

The Dutch Supreme Court decided on December 7, 1988 that because there is no legal CO provision, it is not possible to accommodate conscientious objections in this field. The van Kerkwijks went to the European Commission of Human Rights in Strasbourg and this Commission rejected the application on July 3, 1991. The Commission found that the matters complained of do not disclose any appearance of a violation of the rights and freedoms set out in the European Convention on Human Rights and its Protocols. The van Kerkwijks are persistent and after the Decision of the European commission they went to Geneva, to the UN-Human Rights Committee on November 20, 1991. In that procedure in Geneva they argued that their refusal to pay taxes clearly falls within the scope of the freedom of conscience protected by Article 18 of the Covenant on Civil and Political Rights. Let us hope that the UN-Human Rights committee will not decide as in the Prior-case. You never know. When a deciding-body as the commission or committee wants to change the line of jurisprudence, mostly this happens by differentiating. An example of this is the decision of the European Commission d.d. May 9, 1989 in the Darby-case. In that decision the Commission referred explicitly to the decision in the Crofts-case d.d. December 15, 1983. In the Crofts-case the Commission considered that the obligation to pay taxes is a general obligation which has no specific ethical implications in itself.

But in the Darby-case the Commission came to a differentiation. Darby did not want to pay taxes to the Swedish. State Church. The Commission considered that Darby was not a member of that church and that his complaint was not that the destination of a part of the taxes was against his conviction. The difference with the Crofts-case was that is was not a general tax at issue. The importance of the Darby-case is especially that the European Commission has decided that paying of taxes can fall within the scope of the freedom of conscience (article 9 of the European Convention of Human Rights).

Germany

In Germany there was on December 6, 1991 a very important decision of the Federal Finance Court in Munich in the case of Klausmartin and Christa Voigt. The matter concerned was the tax year 1983, the same as in the case of the van Kerkwijks. The Voigts refused to pay 8,33% of the tax assessment, the part of the defence-budget to the total budget. They paid this 8,33% on a special blocked bank account awaiting the definitive judicial decisions. They refuse on the basis of article 4 of the German Constitution, guaranteeing freedom of conscience without limitations. In practice however jurisprudence has made all sorts of limitations, some of them clearly against the spirit of article 4. The Higher Finance Direction rejected the claim of the Voigts in October 30, 1985. The Finance Court of the State of Baden-Würtemberg declared the claim inadmissible. The Court saw the fundamental interest of the case and gave a leave of asking revision. The decision of the Federal Finance Court in Munich d.d. December 6, 1991 decided also negative, but at least it considered that the claim was admissible, that there is a right to complain at a reasonable interest to do that. The Court in Munich decided that the claim was ill founded: the taxpayer has no right to decide on the destination of tax money. Article 4 of the German Constitution does not change that in the view of the Munich Court: Article 4 can only exist within the constitutional order which has decided that only Parliament can decide about the destination of tax money.

United States

Last but not least I want to mention the case of Randy Kehler and Betsy Corner in Massachusetts. Randy and Betsy refuse since 1977. The Government took their home and Randy got a 6-month prison sentence on December 3, 1991.

Erik Hummels, June 10, 1992.