Lexploria

Application No. 11581/85

Peter DARBY

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 9 May 1989)

11581/85

- i -

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-15) ............................ 1

A. The application

(paras. 2-4) ...................................... 1

B. The proceedings

(paras. 5-11) ..................................... 1

C. The present Report

(paras. 12-15) .................................... 2

II. ESTABLISHMENT OF THE FACTS (paras. 16-40) ............ 3

A. Particular circumstances of the case

(paras. 16-27) .................................... 3

B. Relevant domestic law

(paras. 28-40) .................................... 5

III. OPINION OF THE COMMISSION (paras. 41-76) ............. 8

A. Points at issue

(para. 41) ........................................ 8

B. Article 9 of the Convention

(paras. 42-61) .................................... 8

C. Article 14 of the Convention in conjunction with

Article 9 of the Convention

(paras. 62-71) .................................... 11

D. Article 14 of the Convention in conjunction with

Article 1 of Protocol No. 1 to the Convention

(paras. 72-75) .................................... 13

E. Recapitulation

(para. 76) ........................................ 13

Partly dissenting opinion by Mr. Trechsel ................... 14

Dissenting opinion of Mr. Schermers and Sir Basil Hall ...... 15

Opinion dissidente de M. Martinez ........................... 16

APPENDIX I : HISTORY OF THE PROCEEDINGS .................... 18

APPENDIX II: DECISION ON THE ADMISSIBILITY ................. 19

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Finnish citizen of British origin, born in

1926. He is resident in Åland, Finland, since 1966. The applicant is

a medical practitioner by profession.

3. The application is directed against Sweden. The respondent

Government are represented by their Agent, Mr. Hans Corell,

Ambassador, Under-Secretary at the Ministry for Foreign Affairs,

Stockholm.

4. The case relates to the applicant's complaint of the

obligation to pay, as part of the general taxes, a church tax, to a

church of which he is not a member. His only way of obtaining an

exemption from the church tax is to become registered as domiciled in

Sweden. The applicant considers that this disregards his individual

civil rights and it discriminates against him as a Finnish citizen

resident in Åland and working in Sweden. He alleges violations of

Articles 9 and 14 of the Convention.

B. The proceedings

5. The application was introduced with the Commission on 20

November 1984 and registered on 18 June 1985. On 5 May 1986 the

Commission decided, in accordance with Rule 42 para. 2 (b) of its

Rules of Procedure, to give notice of the application to the

respondent Government and to invite them to present before 18 August

1986 their observations in writing on the admissibility and merits of

the application.

6. The Government's observations were, after an extension of the

time-limit, dated 8 September 1986 and the applicants' observations in

reply were dated 6 October 1986.

7. On 7 October 1987 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application.

At the hearing, which was held on 11 April 1988, the

Government were represented by their Agent, Mr. Hans Corell,

Ambassador, Under-Secretary for Legal and Consular Affairs at the

Ministry for Foreign Affairs, and as advisers Mrs. Christina Westerling,

Legal Adviser at the Ministry of Finance, and Mr. Carl Henrik Ehrenkrona,

Legal Adviser at the Ministry for Foreign Affairs. The applicant

presented his case himself.

8. On 11 April 1988 the Commission decided to declare admissible

the applicant's complaints under Articles 9 and 14 of the Convention.

The remainder of the application (complaints under Article 6 of the

Convention and Article 1 of Protocol No. 1 to the Convention) were

declared inadmissible.

9. The parties were then invited to submit any additional

observations on the merits of the application which they wished to

make.

10. The Government submitted further observations by letter of 13

October 1988 and the applicant submitted further observations on 3

October 1988. The observations of each party were communicated to the

other party for information.

11. After declaring the case admissible the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement of

the case. In the light of the parties' reactions the Commission now

finds that there is no basis on which a friendly settlement can be

effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

The text of the Report was adopted by the Commission on

9 May 1989 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is:

(1) to establish the facts, and

(2) to state an opinion as to whether the facts disclose a

breach by the State concerned of its obligations under the

Convention.

14. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application forms Appendix II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF FACTS

A. The particular circumstances of the case

16. In 1977 the applicant started to work at Gävle in Sweden as an

industrial physician to the Swedish State Railways. He rented a flat

at Gävle, but spent the weekends with his family in Åland. From the

end of 1981 he worked as a physician at Norrtälje, Sweden. As from

August 1986 he has been working in Ã…land.

17. As from 1977 when the applicant worked in Sweden he was taxed

in Sweden according to Swedish tax legislation. The convention with

Finland for the avoidance of double taxation (SFS 1977:812) stated no

exemption in this case. The applicant was granted tax deduction for

the cost of maintenance of two houses as well as for travelling

expenses to and from Åland. As his stay in Sweden was regarded as

non-permanent he was until 1980 taxed in the Common District

(gemensamma distriktet) and his municipal tax was consequently

reduced. The disadvantages were that the applicant was not entitled

to full social benefits, inter alia, sickness benefits and old age

pension benefits.

18. Following amendments to the taxation laws in 1978 (1978:812)

which came into force on 1 January 1979, the applicant was, for tax

purposes, regarded as domiciled in Sweden and tax deductions of a kind

which had previously been allowed were no longer allowed. As a

further result the applicant's municipal tax was no longer reduced.

He thus had to pay full municipal tax, including church tax. The

applicant was informed by the tax authorities that he could not claim

exemption from the church tax unless he was formally registered as

resident in Sweden. The applicant states that although he was

regarded by the tax authorities as domiciled in Sweden the social

insurance office regarded him as domiciled in Finland and he was

accordingly excluded from full social benefits.

19. Subsequently the applicant obtained, on 19 February 1982, a

decision from the National Tax Board (riksskatteverket) to the effect

that if he travelled daily from Ã…land to his work in Sweden he would be

taxed as a non-resident in Sweden. However, the applicant submits

that daily commuting to Gävle was impossible and as a result he took a

less responsible job with less pay at Norrtälje, in respect of which

daily commuting was just possible.

20. As regards the taxation for his income for the year 1979, the

applicant brought an appeal through the Swedish Administrative Courts.

Originally, he was taxed by the Tax Board (taxeringsnämnden) as if he

was a resident at Gävle. The applicant appealed to the Joint

Municipal Tax Court (mellankommunala skatterätten) claiming that he

was not to be regarded as living in Sweden. In a judgment of 25

February 1982 the Joint Municipal Tax Court rejected the applicant's

appeal.

21. The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Sundsvall which in a judgment of 22 October 1982

rejected the appeal.

22. The applicant lodged a further appeal with the Supreme

Administrative Court (regeringsrätten) which in a decision of 15

October 1984 partly refused to grant leave to appeal and partly

refused to accept that the applicant's complaints should be examined

in the special appeals procedure provided for in the Taxation Act

(taxeringslagen).

23. Parallel to the above procedure the applicant, in respect of

the income year 1979, submitted an appeal to the County Administrative

Court (länsrätten) of Gävleborg County against the order to pay church

tax. He stated that he was not a member of the Swedish Church and not

a Swedish citizen, nor was he resident in Sweden. By a judgment of 19

May 1981 the County Administrative Court of Gävleborg County rejected

the applicant's appeal. It held that the Act on Certain Reductions of

the Tax Liability for a Person not belonging to the Swedish Church

(lag 1951:691 om viss lindring i skattskyldigheten för den som icke

tillhör svenska kyrkan, hereinafter referred to as "the Dissenter Tax

Act") did not apply to the applicant.

24. The applicant appealed to the Administrative Court of Appeal

of Sundsvall, which in a judgment of 22 October 1982 confirmed the

judgment of the County Administrative Court. The applicant submitted

a further appeal to the Supreme Administrative Court, which on

9 October 1984 refused to grant leave to appeal.

25. The applicant has also submitted a complaint to the

Parliamentary Ombudsman (justitieombudsmannen) concerning the issue of

a limitation of the obligation to pay tax for a person who does not

belong to the Swedish Church. As a result of his investigation, the

Parliamentary Ombudsman, in a letter to the Government, proposed that

the Dissenter Tax Act should be amended to the effect that it should no

longer be required that a person be registered as living in Sweden in

order to obtain a limitation of his obligation to pay church tax.

From the decision of the Parliamentary Ombudsman, dated 16 April 1982,

the following appears: Section 1 of the Dissenter Tax Act requires

that the tax payer, at the beginning of the income year, does not

belong to the Swedish Church and that he is registered as living in

Sweden. The Parliamentary Ombudsman noted that this requirement had

been questioned on several occasions, inter alia, in Parliament. It

was further noted that this provision of the Act affected persons who

moved into or out of the country. The Ombudsman considered that the

provisions, while not satisfactory, were not in conflict with the

non-discrimination clauses which Sweden had adopted in the double

taxation agreements. There was no discrimination based on

citizenship. But the Parliamentary Ombudsman could understand the

applicant's complaint. The Parliamentary Ombudsman concluded that the

problem was a limited question, but an issue of a fundamental

inconsistency in the tax legislation. There were no objective reasons

which militated in favour of the rule in force and it was

understandable if it caused irritation.

26. The applicant paid church tax in the amount of 1.336 SEK for

the income year 1979. If the applicant had been exempted from the

obligation to pay full church tax in accordance with the Dissenter Tax

Act he would have had to pay 401 SEK.

27. For 1980 and 1981 the applicant paid church taxes in the

amount of 1.717 SEK and 1.325 SEK respectively. If he had been

exempted from part of the church tax under the Dissenter Tax Act he

would have paid 515 SEK and 397 SEK respectively.

B. Relevant Domestic Law

28. The provisions regarding municipal income taxation in general

are included in the 1928 Municipal Tax Act (kommunalskattelagen). This

Act has been amended several times through the years.

29. As to the liability to pay tax in Sweden Section 53

sub-section 1 of the Municipal Tax Act provides that a person

resident in Sweden is liable to pay tax in Sweden on all his income.

A person not resident in Sweden is liable to pay tax in Sweden on,

among other things, income derived from employment in the Swedish public

service, including a county council or a parish.

30. Under Article 19 of the then applicable tax agreement with

Finland for the avoidance of double taxation, the right to tax income

derived from public service - with certain exceptions not relevant

here - falls to the State from which the remuneration is paid.

31. As to the place of taxation in Sweden, Section 59

sub-sections 1 and 3 of the Municipal Tax Act provides, in the

wording applicable during the period in question, that income from

employment earned by an individual when resident in Sweden is taxed

in his place of domicile. Income from employment earned by an

individual when not resident in Sweden is taxed in Stockholm for

common municipal purposes. For this purpose a special taxation

district is established, the Common District.

32. Provisions regulating which persons may be considered to be

resident in Sweden and the definition of "place of domicile" are, as

applicable to tax assessment for the tax year 1980, found in Section

68, Section 66 and sub-section 1 of the instructions to Section 66 of

the Municipal Tax Act.

33. Since 1978 these provisions have been amended twice. Before

1979 a person with temporary abode in Sweden was, as far as income

from employment was concerned, taxed in the Common District which also

meant a lower tax rate than if taxed elsewhere. From 1979 such a

person was taxed on the same basis as a resident of Sweden and also at

the same tax rates. From 1987 such a person is again taxed in the

Common District but not only for income from employment, but also for

income from capital (e.g. interest) or from real estate.

34. A small part of the municipal taxes consists of the church

taxes, the rate of which is determined by the relevant parish council.

This system has old traditions and is based on the fact that the

Lutheran Church of Sweden is what is commonly described as a "State

Church"; its parishes have municipal status according to the

Constitution including the right of taxation. Since the population

records (folkbokföringen) were introduced in the sixteenth century

they have been administered by the parishes. The parishes are also

entrusted with the administration and upkeep of churchyards and other

public burial-grounds, not only for church members but for the whole

population.

35. Under the 1951 Dissenter Tax Act, as subsequently amended, the

church tax may be reduced. Section 1 of the Act reads as follows:

(Swedish)

"Sådan församlingsskatt enligt lagen (1961:436) om

församlingsstyrelse, som efter kyrkofullmäktiges beslut eller

eljest debiteras efter samma grunder som gälla för debitering

av kommunalskatt, skall påföras den, som vid ingången av

inkomståret icke tillhörde svenska kyrkan och som är

mantalsskriven här i riket för inkomståret, efter endast

trettio procent av det för debiteringen bestämda beloppet."

(English translation)

"Pursuant to the Act (1961:436) concerning the parish

administration, such church tax as is imposed according to the

decision of a parish council or is otherwise imposed according

to the same provisions as apply to the imposition of a

municipal tax, shall be levied on a person who was not a

member of the Church of Sweden at the beginning of the income

year and who is registered in this country for the income

year, at only thirty per cent of the determined amount."

In order to benefit from the tax reduction it is thus required

that the person liable to tax was not a member of the Church of Sweden

at the beginning of the income year and that he was registered in

Sweden for the income year. This means that the Dissenter Tax Act does

not apply to those who are taxed in the Common District. According to

the travaux préparatoires of the Act the reasons for this were that

the demand for reduction could not be argued with the same force in

regard to persons who are not resident in Sweden as to those who are,

and that the procedure would be greatly complicated if tax reduction

was to apply to such persons.

The part of the church tax that remains after reduction

relates to the costs which the parishes bear for keeping the

population records and administering the burial-grounds and which

are evaluated at 30 per cent in average of the total parish budget.

36. As from 1 January 1987, Section 1 of the Dissenter Tax Act has

been amended to the effect that it is no longer required that the

individual be registered as living in Sweden in order to benefit from

the reduction of the church tax.

37. In the case of tax assessment for common municipal purposes,

the tax amounts to 10 per cent pursuant to the Act Concerning Tax for

Common Municipal Purposes (lagen om skatt för gemensamt kommunalt

ändamål). This tax is not divided into municipal tax, county tax and

church tax but is used for levelling out the burden of taxation

between different municipalities or other administrative entities.

38. A Swedish child born by parents who are members of the Church

of Sweden is registered as a member unless the parents decide otherwise.

As soon as a person has come of age he can choose whether he wants to

remain a member or not. In case he does not, he simply has to announce

his resignation to the parish of which he is a member. A person who

is not a member can apply for membership.

39. Section 6 para. 1 of the Freedom of Religion Act

(religionsfrihetslagen) provides that only a Swedish citizen or a

person domiciled in Sweden may be a member of the Church of Sweden.

40. In order to inform people how different tax provisions are to

be interpreted in special cases the National Tax Board may give so

called advance rulings (förhandsbesked). Such rulings must be

complied with by the taxation authorities and the tax courts.

III. OPINION OF THE COMMISSION

A. Points at issue

41. The issues to be determined are:

- whether there has been a violation of Article 9 (Art. 9)

of the Convention;

- whether there has been a violation of Article 14

of the Convention in conjunction with Article 9

(Art. 14+9) of the Convention;

- whether there has been a violation of Article 1

of Protocol No. 1 to the Convention in conjunction

with Article 14 (P1-1+14)of the Convention.

B. Article 9 (Art. 9) of the Convention

42. The applicant complains that the obligation to pay a special

tax to the Swedish State Church, although he is not a member of that

Church, violates his right to freedom of religion as guaranteed by

Article 9 (Art. 9) of the Convention.

The Government submit that the complaint is ill-founded. The

applicant could have avoided the tax by becoming a resident in Sweden.

Moreover, the church tax was only a minor aspect of the applicant's

disagreement with the Swedish authorities and the tax he had to pay

was insignificant. The State must be free to use the taxes for

purposes which the individual may object to.

43. Article 9 (Art. 9) of the Convention reads:

"1. Everyone has the right to freedom of thought, conscience

and religion; this right includes freedom to change his

religion or belief and freedom, either alone or in community

with others and in public or private, to manifest his religion

or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be

subject only to such limitations as are prescribed by law and

are necessary in a democratic society in the interests of

public safety, for the protection of public order, health or

morals, or for the protection of the rights and freedoms of

others."

44. Paragraph 1 of Article 9 (Art. 9-1) can be divided into two

parts. The first limb of paragraph 1 (Art. 9-1) guarantees a general

right to freedom of religion. Under the second limb of paragraph 1

(Art. 9-1) a more specific right to change and manifest one's religion

is protected. Paragraph 2 of Article 9 (Art. 9-2) only permits

limitations of the freedom to manifest one's religion. Consequently,

under Article 9 para. 1 (Art. 9-1), a Contracting State is obliged to

respect everyone's general right to freedom of religion and that right

may not be restricted.

45. A State Church system cannot in itself be considered to

violate Article 9 (Art. 9) of the Convention. In fact, such a system

exists in several Contracting States and existed there already when

the Convention was drafted and when they became parties to it.

However, a State Church system must, in order to satisfy the

requirements of Article 9 (Art. 9), include specific safeguards for

the individual's freedom of religion. In particular, no one may be

forced to enter, or be prohibited from leaving, a State Church.

46. The Commission has previously been faced with cases where a

member of a church has been obliged to pay contributions to that

church. In one case (No. 9781/82, Dec. 14.5.84, D.R. 37 p. 42) the

Commission stated:

"The obligation (to pay church contributions) can be avoided

if they choose to leave the church, a possibility which the

State legislation has expressly provided for. By making

available this possibility, the State has introduced

sufficient safeguards to ensure the individual's freedom of

religion."

47. In another type of case, the Commission has been seized with

complaints that the fact that tax money is used by the State for a

specific purpose violates the Convention rights of the tax payer. For

example, in one case where it was alleged that the obligation to

contribute through taxation to arms procurement was in breach of

Article 9 (Art. 9), the Commission held (No. 10358/83, Dec. 15.12.83,

D.R. 37 p. 142):

"The obligation to pay taxes is a general one which has no

specific conscientious implications in itself. Its neutrality

in this sense is also illustrated by the fact that no tax

payer can influence or determine the purpose for which his or

her contributions are applied, once they are collected.

Furthermore, the power of taxation is expressly recognised by

the Convention system and is ascribed to the State by Article 1

(of Protocol No. 1 (P1-1) to the Convention).

It follows that Article 9 (Art. 9) does not confer on the applicant

the right to refuse, on the basis of his convictions, to abide

by legislation, the operation of which is provided for by the

Convention, and which applies neutrally and generally in the

public sphere, without impinging on the freedoms guaranteed by

Article 9 (Art. 9)."

48. The present case differs from both these types of cases on

important points. First, the present applicant was not a member of

the Swedish State Church to which he was obliged to contribute by

paying a tax. Secondly, the applicant's complaint is not that part

of the tax money is used for a purpose which is contrary to his

convictions but that he is obliged to pay a specific tax to the

Church. In fact, the church tax is imposed by virtue of the

taxation power which the Church itself enjoys in Sweden. It is paid

to the tax authorities as a small but identifiable part of what is

called "municipal taxes" and then transferred to the Church.

49. Consequently, the issue which the Commission must examine is

whether the applicant's obligation to pay a church tax to a church of

which he is not a member is compatible with his right to freedom of

religion protected by Article 9 (Art. 9) of the Convention.

50. The Commission considers that the applicant's payment of

church tax, on the basis of the legal obligation incumbent upon him,

cannot be characterised as a "manifestation" of his religion. What is

at issue here is thus the applicant's general right to freedom of

religion under the first limb of Article 9 para. 1 (Art. 9-1).

51. In the Commission's view, this right protects everyone from

being compelled to be involved directly in religious activities

against his will without being a member of the religious community

carrying out those activities. The paying of taxes to a church for its

religious activities in the circumstances described above (para. 48)

must be seen as such involvement.

52. The Government argue that the applicant could have avoided the

full church tax by becoming resident in Sweden. The Commission is not

persuaded by this argument. It cannot be accepted that an individual

should be forced to move from his home and take up residence in the

State concerned before he could enjoy the right to have his freedom of

religion respected by that State.

53. The Government also argue that the applicant disagreed with

the Swedish authorities mainly on whether he should at all be

considered to be resident in Sweden for tax purposes. The question of

the church tax was, in the Government's submissions, a subsidiary

point. The Commission finds it sufficient to point out that the

applicant already at the domestic level raised the question of the

church tax. Whether this aspect was more or less important than the

question of his obligation to pay general taxes in Sweden is not

decisive for the question whether there has been a violation of

Article 9 (Art. 9).

54. The Government also argue that, when examining whether the

applicant's rights under Article 9 (Art. 9) of the Convention have been

violated, regard must be had to the fact that the complaint is related

to the tax legislation which is of a complex nature, which is to be

applied to a variety of situations and which may in specific

situations reveal inadvertencies. They also argue that regard must be

had to the fact that the effects on the applicant of the church tax

were of a minor nature pointing out that, if the applicant had been

exempted from the church tax in 1979, he would have paid 401 SEK

instead of 1.336 SEK, which means that the financial effect was only

935 SEK.

55. The Commission cannot accept these arguments. The fact that

the tax legislation is complicated cannot absolve the State from its

obligation to respect the right to freedom of religion. Moreover,

leaving aside that the applicant has been obliged to pay church tax

not only for 1979 but also for 1980 and 1981 (cf. paras. 26 and 27

above), the right to freedom of religion does not lend itself to an

assessment in financial terms.

56. The Government further argue that the State must be free to

use the taxes collected for purposes which the individual may object

to. This argument is, in the Commission's view, relevant with regard

to general taxes (cf. decision No. 10358/83, quoted above). The duty

to pay general taxes which are not ear-marked for a specific religious

purpose cannot, in the Commission's view, be considered to raise any

problem in regard to the freedom of religion, even if the State uses

money, collected by way of taxes, to support religious communities or

religious activities. As regards general taxes there is no direct link

between the individual taxpayer and the State's contribution to the

religious activities.

57. The situation is different where, as in the present case, the

church is itself allowed to levy taxes. In such a situation the

individual is obliged to contribute directly to the church and its

religious activities. This distinction between general taxes and

specific church taxes is not purely formal. For the individual

concerned it may be of great significance.

58. In such cases, Article 9 para. 1 (Art. 9-1) of the Convention

requires that a State respects the religious convictions of those who

do not belong to the church, for instance by making it possible for

them to be exempted from the obligation to make contributions to the

church for its religious activities.

59. Under the Swedish system this is in principle done through the

Dissenter Tax Act which allows for exemption from part of the church

tax. However, at the relevant time the Dissenter Tax Act did not apply

to the applicant's situation on the ground that he was not registered

as resident in Sweden. This is however not a reason which can justify

a departure from the obligation under Article 9 (Art. 9) of the

Convention to respect the applicant's right to freedom of religion.

60. Consequently, Sweden has failed to respect the applicant's

right to freedom of religion as guaranteed by Article 9 para. 1 (Art.

9-1)of the Convention. No question of a justification under Article 9

para. 2 (Art. 9-2) arises (cf. paras. 44 and 50).

Conclusion

61. The Commission concludes, by 10 votes to 3, that there has

been a violation of Article 9 (Art. 9) of the Convention.

C. Article 14 of the Convention in conjunction with Article 9

(Art. 14+9) of the Convention.

62. The applicant complains that he has been discriminated against

as a Finnish citizen domiciled in Åland and working in Sweden. If he had

been registered as living in Sweden he would not have paid full church

tax. The applicant alleges a violation of Article 14 of the Convention

in conjunction with Article 9 (Art. 14+9).

The Government submit that the Dissenter Tax Act applies to

Swedish citizens and foreigners alike. The distinction between

residents in Sweden and non-residents had a legitimate aim and was

justified under Article 14 (Art. 14) of the Convention.

63. Article 14 (Art. 14) of the Convention reads:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

64. The Commission has found above (para. 61) that Article 9

(Art. 9) has been violated. It finds it necessary, in the

circumstances of the present case, also to examine the applicant's

complaint under Article 14 in conjunction with Article 9 (Art. 14+9).

65. According to the case-law of the Convention organs, Article 14

(Art. 14) of the Convention has no independent existence, but plays an

important role by supplementing the other provisions of the Convention

and the Protocols. Article 14 (Art. 14) safeguards individuals,

placed in similar situations, from discrimination in the enjoyment of

the rights set forth in those other provisions. A measure which as

such could be in conformity with the normative provision may therefore

nevertheless violate that provision taken in conjunction with Article

14 (Art. 14), if it is applied in a discriminatory manner. It is as

if Article 14 (Art. 14) formed an integral part of each of the

provisions laying down the specific rights and freedoms. The

Convention organs have furthermore constantly held that a distinction

is discriminatory if it "has no objective and reasonable

justification", that is, if it does not pursue a "legitimate aim" or

if there is not a "reasonable relationship of proportionality between

the means employed and the aim sought to be realised" (see inter alia,

Eur. Court of H.R., Belgian Linguistic judgment of 23 July 1968,

Series A no. 6, pp. 33-34, paras. 9-10).

66. The discriminatory treatment alleged by the applicant is the

difference between him, as a non-resident in Sweden, and residents in

Sweden in the enjoyment of the right to reduction of the church tax

under the Dissenter Tax Act.

67. Here the Swedish State has itself established a system of

exemption, on grounds of religion, from part of the church tax.

Such a system must not be discriminatory.

68. The reasons invoked by the Government for the distinction made

are that it was practical to connect the right of exemption to

registration in Sweden. The system had to be simple. The practical

problem that arose was how the tax authorities could obtain

information regarding those who were not members of the Church of

Sweden without imposing on them an obligation to inform the

authorities themselves. This problem was solved by requiring the

parishes, which administer the population records and also have access

to the information regarding membership of the Church, to inform the

tax authorities in this regard. For that reason those who were not

registered as resident in Sweden, according to the population records,

fell outside the system. If they were to enjoy the right of being

exempted from church tax it would mean that they had to apply for it

themselves and every such application had to be examined individually.

Such a system would have been very difficult to administer at a time

when the taxation control system had not yet been computerised. The

Government have not referred to any other reason for the difference in

treatment complained of by the applicant.

69. The Commission considers that the question of the distinction

between residents and non-residents is an essential and most striking

feature in the present case. The reasons invoked by the Government are

not such as to justify the distinction in the enjoyment of the right

to freedom of religion.

70. Consequently, there has also been a violation of the

applicant's right under Article 14 of the Convention in conjunction

with Article 9 (Art. 14+9) of the Convention.

Conclusion

71. The Commission concludes, by 9 votes to 4, that there has

been a violation of Article 14 of the Convention in conjunction with

Article 9 (Art. 14+9) of the Convention.

D. Article 14 of the Convention in conjunction with

Article 1 of Protocol No. 1 (Art. 14+P1-1) to the Convention

72. Article 1 of Protocol No. 1 (P1-1) to the Convention protects the

right to peaceful enjoyment of possessions. The obligation to pay

taxes, consequently, falls within the scope of this Article 1 (P1-1).

73. The question could arise whether, on the facts of the present

case, there has been a violation of Article 14 of the Convention in

conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).

74. The Commission considers, however, that in view of its

conclusions above under paras. 61 and 71, it is unnecessary to

investigate the case also in this regard.

Conclusion

75. The Commission concludes, by 11 votes to 2, that it is not

necessary to examine whether there has been a violation of Article 14

of the Convention in conjunction with Article 1 of Protocol No. 1

(Art. 14+P1-1) to the Convention.

E. Recapitulation

76. - The Commission concludes, by 10 votes to 3, that there has

been a violation of Article 9 (Art. 9) of the Convention

(para. 61).

- The Commission concludes, by 9 votes to 4, that there

has been a violation of Article 14 of the Convention in

conjunction with Article 9 (Art. 14+9) of the Convention

(para. 71).

- The Commission concludes, by 11 votes to 2, that it is not

necessary to examine whether there has been a violation

of Article 14 of the Convention in conjunction with

Article 1 of Protocol No. 1 (Art. 14+P1-1) to the Convention

(para. 75)

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

Partly dissenting opinion by Mr. Trechsel

While generally in agreement with the majority of the

Commission, I have voted against finding a violation of Article 9 in

conjunction with Article 14 (Art. 9+14) (para. 71). In my view,

Article 14 (Art. 14) forms an integral part of other Convention

Articles. If there has been a violation of such an Article, there is

no room for a separate examination of Article 14 (Art. 14) in

conjunction with that same Article.

Dissenting Opinion of Mr. Schermers and Sir Basil Hall

We do not agree with the opinion of the majority of the

Commission that there was in this case a violation of Article 9 (Art. 9)

of the Convention. The fact that the applicant had to pay a tax to

defray expenditure incurred by church parish councils does not in our

opinion infringe a right conferred on him by Article 9 (Art. 9). He

continued to have freedom to practise a religion, to manifest a

religion, or to refrain from practising a religion.

We do not think that the facts at issue fall within the ambit

of Article 9 (Art. 9) and conclude that Article 14 (Art. 14) is

therefore inapplicable in conjunction with that Article (Art. 9).

It is then to be considered whether there is a violation of

Article 14 in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1)

to the Convention. According to the jurisprudence of the Commission,

taxation falls within the general scope of Protocol No. 1 (P1), and is

in principle an interference with the right conferred by its first

paragraph (P1-1). The prohibition in Article 14 (Art. 14) of the

Convention accordingly applies to taxation.

It is plain that there is a differentiation in the treatment of

persons working in Sweden in respect of their liability to church tax

between those registered as living in Sweden and those not so

registered.

The Swedish Parliamentary Ombudsman has concluded that there

were no objective reasons in favour of the rule. We too conclude that

no objective and reasonable justification for the differentiation has

been shown.

Accordingly in this case there has been a violation of

Article 14 in conjunction with Article 1 of Protocol No. 1

(Art. 14+P1-1) to the Convention.

Opinion dissidente de M. Martinez

A mon très grand regret je ne partage pas l'avis de la

majorité de la Commission.

La majorité voit dans le cas d'espèce un problème de liberté

de religion, alors que je n'y vois qu'une question fiscale.

Pour le problème qui nous concerne, c'est-à-dire la taxe de

l'Eglise, il y a en Suède deux catégories de contribuables: les

résidents et les non-résidents.

Les premiers (nationaux ou étrangers) sont soumis à l'impôt

sur tous leurs revenus, qu'ils soient acquis en Suède ou à l'étranger;

les non-résidents ne sont soumis à l'impôt que sur certains revenus

notamment sur ceux qu'ils acquièrent en Suède d'un emploi public (voir

rapport de la Commission, par. 29).

Les résidents - qui paient l'impôt sur tous leurs revenus -

ont par ailleurs certains autres désavantages ainsi que certains

avantages. Parmi les désavantages, on peut citer une taxe locale plus

élevée. Par contre les résidents ont de plus larges avantages sociaux.

Une petite partie de la taxe locale constitue l'impôt en

faveur de l'Eglise luthérienne de Suède, considérée comme l'église

d'Etat (voir rapport de la Commission, par. 34).

Les résidents peuvent bénéficier d'une réduction (70%) de la

partie de la taxe locale dévolue à l'église s'ils n'appartiennent pas

à l' Eglise de Suède (rapport de la Commission par. 35). Cette

possibilité n'est pas offerte aux non-résidents. En d'autres termes,

les résidents qui n'appartiennent pas à l'église officielle peuvent

bénéficier d'une certaine réduction de la taxe locale, tandis que les

non-résidents ne peuvent en bénéficier, qu'ils professent ou non la

religion officielle.

C'est sur cette différence de régime que repose tout le

problème.

La majorité voit dans cette différence une atteinte à la

liberté de religion garantie par l'Article 9 (Art. 9) de la

Convention. En ce qui me concerne, je n'y vois rien d'autre qu'une

différence à porter au bilan des avantages et des inconvénients

attachés à la situation des contribuables qui sont résidents et de

ceux qui ne le sont pas.

Des allégations du requérant ne se dégage pas l'impression

qu'il déclare souffrir dans sa foi ou sa conscience. Ses soucis

semblent essentiellement financiers, car il voudrait bien pouvoir

alléger le fardeau de la taxe locale qu'il a à payer, comme peuvent le

faire les résidents qui n'appartiennent pas à l'église.

Le requérant s'en prend au système fiscal suédois. Que celui-ci

soit considéré comme bon ou mauvais, comme juste ou injuste, il n'en

est pas moins hors du domaine couvert par la Convention.

La Commission trouve une violation de la liberté de religion

proclamée par l'Article 9 (Art. 9) de la Convention parce qu'elle

considère que l'individu est protégé de l'obligation d'avoir Ã

contribuer directement aux activités religieuses d'une communauté Ã

laquelle il n'appartient pas (voir rapport de la Commission, par. 51).

Ce propos de la Commission me semble trop général. Cela dit,

je ne vois pas que le requérant soit obligé de payer une somme

d'argent déterminée en faveur des activités de l'église suédoise. Il

n'est obligé à rien d'autre qu'à payer les impôts qui correspondent

aux revenus, qui proviennent précisément des fonds publics de la

Suède, et à les payer dans les conditions que la loi suédoise établit

selon que le contribuable est résident ou non-résident.

Le requérant (qui n'est pas ressortissant suédois) est allé

travailler en Suède de son propre gré. Il y a trouvé un emploi public

avec la rétribution et les charges fiscales établies par les lois

suédoises.

S'il éprouve un conflit de conscience, rien ne l'oblige Ã

persister dans une activité rémunérée par un Etat dont les impôts ont,

dans une certaine mesure, un but ecclésiastique. (D'après les

allégations du Gouvernment - non contredites par le requérant - la

Suède contribue aussi à d'autres cultes que celui de l'église

d'Etat).

Le requérant n'a pas été forcé de changer sa résidence et

d'habiter en Suède pour avoir un emploi public en Suède.

Le requérant cherche à payer le moins d'impôts possible mais

je ne trouve pas que sa foi religieuse, sa conscience ou sa pensée

aient subi quelque violence.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

__________________________________________________________________________

20 November 1984 Introduction of the application

18 June 1985 Registration of the application

Examination of admissibility

5 May 1986 Commission's deliberations and

decision to invite the Government

to submit observations on the

admissibility and merits of the

application.

8 September 1986 Government's observations

6 October 1986 Applicant's reply

7 October 1987 Commission's decision to invite

the parties to a hearing on the

admissibility and merits

11 April 1988 Hearing on admissibility and

merits and Commission's decision

to declare the application partly

admissible and partly inadmissible

Examination of the merits

11 April 1988 Commission's deliberations on the

merits

3 October 1988 Applicant's further observations

on the merits

13 October 1988 Government's further observations

on the merits

10 December 1988 Commission's consideration of state

of proceedings

4 May 1989 Commission's deliberations on the

merits and final votes

9 May 1989 Adoption of the Report

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DARBY v. SWEDEN

DARBY v. SWEDEN

LEXI