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Abstract
The right to a fair hearing is one of the most invoked articles during appeals relating to taxation laws. The varied nature of this provision makes it diverse enough to support grounds that may be presented for the rejection of particular rulings and time and again a clause in the article may be used to illustrate an infringement of the law. The varied nature of this article also makes it fit in most legal presentations covering both criminal and civil cases. The clause however, has no direct application in cases involving taxation infringements. The article can however be technically used to complement rights accorded by the law to individuals irrespective of the nature of their case.
This essay seeks to illustrate how the right to a fair hearing clause applies to taxation cases. To this end, an analysis of the provisions accorded by the article shall be discussed followed by case examples illustrating how the provision can be used to lay grounds of appeal in taxation cases. The cases presented are actual cases that took place in various courts in Malta. The cases have been presented in the same way they appeared in the courts.
Introduction
The right to a fair hearing is entrenched in Article 39 of the Constitution of Malta. It is also wholesomely encompassed in Article 6 of the European Convention on Human Rights (ECHR). This article is considered an autonomous right and is also one of the principle guarantees for the respect of the democratic rights of an individual. This part of the law is very appropriate in the distinction of the powers accorded to the state by the constitution and helps guide how these authority can be exercised when the state is involved in a legal tussle with individuals who fall under its general supreme authority. This article serves to steer the state towards the positive application of the law in order to reduce incidences of the state having an upper hand when faced with a case against an individual. This right to fair trial as applicable in the law involves both criminal and civil cases.
The Constitution is considered to be the supreme law of the land and as stated in Article 6 of the European Convention (EC), “…if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void” (Mowbray 2007). This merely means that the provision has more legal authority than statutory legislation.
Components of the right of fair hearing
The right to a fair trial includes the right to access a court, the right to be present at proceedings, the right to reasoned judgment, equality of arms, admissibility of evidence, presumption of innocence, the right to timely and appropriate notification, the right to adequate time and preparation facilities, the right to access an interpreter and the right to seek legal representation among others (Youngs 1998). These are explained in brief below:
Access to court. Though this not exactly an absolute right, it is generally accepted recommendation in law. According this provision and especially in European law, individuals are accorded the right to present their claims and dissatisfaction associated with certain decisions that infringe on their civil rights to a court of law (Mensah 2002).
Presence at proceedings. If an individual stands accused for one reason or other, it is his or her fundamental right to be present during the court proceedings. Under some exceptional cases, the court may permit the hearing of a case without the presence of the accused party (Šikuta, & Hubálková, 2007). This includes circumstances such as where the person is taken ill or the court has not been able to reach the accused and summon him or her to court.
Reasoned judgment. In both civil and criminal trials, individuals reserve the right to demand the court to give adequate reasons for the judgment arrived at. This is a provision that mostly comes into play when the individual intends to use his or her right of appeal (Staples 2001). Individuals are allowed to file appeals on the basis of nullity especially in cases where the judge appears to have misled the jury in regards to the law.
Equality of arms. Under article 6 which accords individuals the right to a fair hearing, all persons involved in the case must be given reasonable opportunities to present their arguments. The conditions under which the individual cases are presented should be able to place the opponents at par so that none of the parties involved is seen to be disadvantaged.
Admissibility of evidence. As much as the presentation of evidence obtained in ways that contravene the law may not directly affect Article 6, the usage of such evidence in the case may result in unfairness of facts (Terra, & Wattel 2008). According to article 15 of the United Nations convention against torture, evidence obtained by maltreatment of the individual cannot in any way be used in a court of law. This clause is applicable under the European convention via article 53 of the convention.
Presumption of innocence. Article 6(2) of the general fairness in hearing demands that an individual be regarded as innocent until guilt has been established beyond reasonable doubt. This generally applies to both criminal and civil cases (Šikuta, & Hubálková, 2007). If after the trial the individual is found to be innocent, this clause provides that the presumption of innocence that was applied as the case was proceeding be upheld.
Notification. According to article 6(3), any individual charged in a court of law, should be informed of the case on time and using a language that he or she is well conversant with (Romano 2002). The charge against him should be explained in detail and the nature of the case well elaborated until the person confirms that he or she had clearly understood the legal procedure that he or she is facing.
Adequate time and facilities. According to this article, individuals charged in court with criminal offences have the absolute right to enough time and facilities to help them adequately prepare for the case (Terra, & Wattel 2008). This right is applicable for civil cases as well and it is presented as part of the general fairness clause. The judge should ensure that the time accorded to an individual for preparation is sufficient enough to enable the case be concluded on time without one party appearing to have been advantaged in terms of both the facilities and time allowed for the case.
Legal representation and aid. According to article 6 which covers the right to a free trial, the individual is allowed the right to defend him or herself incorporating the legal assistance of individuals of his or her own choosing(Terra, & Wattel 2008). If the individual has no financial means to acquire the services of lawyers and other individuals who are instrumental to the presentation of his case, he is accorded the right to acquire one at the expense of the state, but this is only if it is absolutely necessary that legal be provided.
Services of an interpreter. In order for a fair hearing to be seen to have taken place, the accused is allowed the use of an interpreter if he or she does not understand the language being used in court (Youngs 1998). This right is extended to people with hearing disabilities where the employment of sign language is required. This is a right that applies to each and every individual charged with a criminal offence and no payment should be made for this service.
If any of the above provisions are not met, then a breach of article six will have occurred and the individual is permitted by law to appeal against the case.
Taxation and the right to a fair hearing
Taxation cases are some of the prosecutions that demand extensive application of the right to a fair hearing. On the face of it, the right to a fair hearing does not always apply to cases involving tax (Mowbray 2007). However, because taxation cases are more often than not a function of the state suing an individual, aspects of the article can be tweaked to apply to the case.. Since governments have more machinery at their disposal it would be very easy for the case to take a one sided leaning and as such the right to a fair hearing article comes in handy to help protect the individual involved. The right to a fair hearing goes hand in hand with the income tax management act; an act that has been entrenched into the law to serve as a guide to the collection of income tax and provide the necessary administrative regulations to help undertake the collection.
In order to properly link taxation cases to the aspect of fair hearing, it is necessary to properly understand the general framework that guides taxation cases. Below are a few pointers;
First and foremost, it is necessary to understand that different from other civil cases, taxation cases are part of the ordinary law as opposed to general administrative law. This means that the burden of proof lies with the taxpayer. This is as opposed to civil cases where the state must prove beyond reasonable doubt that a crime has been committed. In taxation cases, all the facts presented in the case have to be adequately proven.
Second, for taxation cases unlike civil cases, the proceedings are generally carried out orally. The court in this case depends on all the arguments presented by all the parties during the hearing. However, in some special cases, counsel may be required to consult case law that is countering their presentation. During such circumstances, all the facts and arguments presented are given consideration but the court is under no obligation to investigate the case prior to the time of hearing. The judge is however permitted to actively question counsel’s argument of the law.
In taxation case, the judge is expected to limit his or her decision to the points argued during the case. The judge should also outline in the decision, the steps that he or she took in arriving at the conclusion.
In tax tribunal courts, a single judge can generally handle the case presented infront of the court effectively. In higher courts on the other hand, a number of judges can give dissenting judgements can be made.
The tax authorities in both the United Kingdom and the rest of Europe provide for and generally encourage the settlement of disputes involving taxes. This is the reason why most of the taxation cases tend to take a lot of time.
Case example 1
In BSC Case No: 68/85 from the inland revenue of Malta, a tax payer has been prosecuted for not properly filing his tax returns (Malta Inland Revenue 1991). In the ensuing case, he is subjected to several assessments in front of the board of special commissioners but he fails to appear on the day of hearing for some of the assessments. When he finally shows up, he has with him a medical certificate indicating that on the days of his absence he had been under temporary incapacitation and as such he was in no position to attend the hearings. Later on both the tax payer’s lawyer and financial handler give up their brief.
Board ruling
Without taking into consideration the medical certificate presented, the board proceeds to rule deliver a decision concluding that Burns has not proven that the assessments he has been subjected two in the case are more than required.
Court ruling on appeal
When the case was taken to court, a ruling was made to overrule the decision by the board on account of the fact that the tax payer has been denied the right to a fair hearing. This was a definite disregard of one of the most ideal principles of natural justice. The board proceeding to offer a ruling without querying the medical certificate presented by the tax payer was a violation of his rights and this is more-so because both his attorney and his accountant-his advisers were forced to surrender their brief. From an ideal point of law, the ruling by the board that the tax payer had not proved that the assessments were more than required was overruled on a point of law he (the tax payer) was correctly claiming that his right to a fair hearing had been denied.
Case example 2
In the case no.173 from the taxation cases of the Inland Revenue of Malta, an English-speaking tax payer had been charged in a tax tribunal court for tax evasion (Malta Inland Revenue 1994). The tax payer decided to personally conduct the case and he presented himself infront of the Board of special commissioners. Due to his incompetence in both legal and taxation mattes, he was not able to prove whether his taxation returns had been filed correctly and he could not establish whether the assessments were more than required. The board appropriately advised him to seek legal advice but he refused to do so; a right that is guaranteed by law. Consequently, the board rejected his appeal because he did not convincingly argue whether the assessments were excessive and he had admitted that he was not sure on how to go about the procedure.
Appeal court ruling
When the above case was presented in the court of appeal, the appeal court judge chose to let the decision by the Board of Special Commissioners stand. The tax payer was allowed the opportunity to have the case be presented afresh if he or she finds it necessary. In the ruling, the judge also emphasized the need for the tax payer to solicit the services of an attorney.
Case example 3
In BSC Case No: 8/50, a tax payer had been suspected of tax illegalities and subjected to assessment by the Revenue (Malta Inland Revenue 1951). The tax payer was not impressed by the way the assessment was carried out and he chose to give an objection notice directed at the revenue expressing his dissatisfaction. In the notice he declared that he was not capable of providing the basis for his objection until he had been furnished with information detailing a step by step procedure for the raising of the assessment. In addition, he requested a copy of the departmental computation which would allow him declare in detail the grounds for his objection. The revenue never answered the letter but instead chose to have extensive discussions with the tax payer. In the end the Revenue served a notice of refusal of objection to the tax payer. They however advised him to appeal to the Board of Special Commissioners if he so wished. During the appeal, the Revenue came out declaring that the tax payer had not submitted nor filed a notice of objection in the way that was acceptable by law. The Revenue wanted the appeal to be nullified as it was not valid.
The ruling
The Board of Special commissioners backed by the court threw out the Revenue’s plea. It was concluded that the Revenue could not accept, review and eventually formally turning down a notice or objection, and later turn around and purport that no objection had been raised at all. The Board and the court both agreed that the tax payer had properly submitted a request to get detailed grounds for the assessment. This goes in line with the right to a fair hearing where both parties must be accorded an equal chance to present their cases in front of the court.
Case example 4
Anthony Grech Sant had been given a three year sentence after he was declared guilty on a count of bribing judiciary members (Times of Malta 2009). He however went ahead to file a complaint with the Attorney General claiming that he had spent some time under house arrest in the period before that trial. This time was however not factored in the sentence. According to him this was not right and he argued that the law was being applied selectively because individuals who had been sent to preventive custody in prison usually had their final sentences reduced by the amount of time they had spent in prison.
The ruling
The court of appeal reduced Antony’s sentence from three years to twenty months. This was a conclusion arrived at after it was discovered there had been no justifiable cause or objective to discriminate against his case and this had infringed her right to a fair hearing.
This case is one of the many cases involving legal illegalities committed by the state in cases against individuals. This is almost identical to Greek vs. Platakou case where the Greek state was found guilty of creating a lag in the escalation of an appeal to a court; a move which led to the closing of the window period for the applicant to present the appeal. The state was found responsible for the delay due to the slow functioning of its legal organs.
Conclusion
The applicability of this article to cases involving taxation has from time been put on the spot. For instance the case Ferrazini v. Italy, the legality of the invocation of Article 6 in cases involving the public and tax authorities was put on the pedestal. The outcome was that a majority of the judges sitting on the panel voted for the approach that made Article 6 inapplicable in tax cases to be maintained. However, it was generally agreed that taxation cases should generally be handled under rules that deal with civil rights.
It has been explained in the essay above that the right of fair hearing has diverse applications in the court of law. As much as the article 39 of the constitution of Malta which is the part that encompasses this right may not be directly applicable in cases involving taxes, it has been illustrated by use of relevant examples how the article can be used to provide grounds for appeal. The essay has also served as a general review of the clauses covered by the article on the right of fair hearing.
Reference List
Malta Inland Revenue, 1951. Fresh arguments (or reasons) brought forward on appeal, as against fresh grounds of objection. Web.
Malta Inland Revenue, 1991. Whether a point of law was involved in taxpayer’s appeal. Right to a fair hearing. Web.
Malta Inland Revenue, 1994. An English speaking appellant conducted his own case. Invited to take legal advice but declined to do so. Assessment not proved to be excessive. Web.
Mensah, B., 2002. European human rights case summaries 1960-2000. Britain: Routledge.
Mowbray, A., 2007. Cases and materials on the European Convention on Human Rights, Oxford: Oxford University Press.
Romano, C., 2002. Advance tax rulings and principles of law: towards a European tax rulings system? Amsterdam: IBFD.
Šikuta, J. & Hubálková, E., 2007. European Court of Human Rights: Case-Law of the Grand Chamber 1998-2006. England: Cambridge University Press.
Staples, R., 2001. Taxation, Volume 147. Britain: Taxation Pub. Co.
Terra, B. & Wattel, P., 2008. European tax law. Netherlands: Kluwer.
Times of Malta, 2009. Court dismisses complaint on violation of right to fair hearing. Web.
Youngs, R., 1998. English, French and German comparative law. Britain: Routledge.
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