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Observatory on the Protection of Taxpayers’ Rights
Below you will find a report prepared by Guzmán Ramírez Arrieta, a representative of Tax
Practitioners, Reporter of the OPTR Unit for the Americas.
This report contains a summary of court cases before the Inter-American Court of Human
Rights, in which issues regarding the practical protection of taxpayers’ rights were discussed
and decided in 12 relevant areas, identified by Prof. Dr. Philip Baker and Prof. Dr. Pasquale
Pistone at the 2015 IFA Congress on “The Practical Protection of Taxpayers’ Fundamental
Rights”.
© 2018 IBFD. No part of this information may be reproduced or distributed without permission of IBFD.
THE INTER-AMERICAN COURT ON HUMAN RIGHTS’ CASE LAW ON
PROTECTION OF TAXPAYERS’ RIGHTS
Report by Guzmán Ramírez
Teaching fellow of Tax Law at ORT University Business School (Montevideo, Uruguay)
Member of the Uruguayan Bar Association Tax Commission
E-mail address: [email protected]
I. Brief introduction
In the framework of the inter-American system for the protection of human
rights, there still is the belief that such system only operates in cases extremely serious
(e.g., the systematic persecution of political dissenters or the indiscriminate killing of an
indigenous people). There is still no awareness that any taxpayer whose rights are
threatened or violated by the tax authorities, is able to bring his/her case before the
Inter-American Court on Human Rights (hereinafter, the “Court” or the “Inter-
American Court”), in pursue of the protection which local courts may not provide.
Consequently, such supranational body has not developed an extensive case law in the
area of taxation. As a matter of fact, in 2018 there has been no tax ruling from the
Court, and going backwards we only found one (1) judgment (José María Cantos v.
Argentina), which is discussed below.
II. José María Cantos v. Argentina: the only judgment on merits of the Inter-
American Court on Human Rights in tax matters
In 1972, the Provincial Tax Office of Santiago del Estero (in Argentina)
committed irregularities at the time of auditing the companies owned by Mr. José María
Cantos. Furthermore, Mr. Cantos was subjected to persecutions and harassments for
more than ten (10) years.
Therefore, José María Cantos filed (in 1986) a legal action in an effort to collect
damages. More specifically, Mr. Cantos claimed the payment of USD 2,780,000,000
(approximately). The Argentine Supreme Court of Justice not only rejected such a
claim, but also required from Mr. Cantos the payment of a judicial tax (in Spanish,
“tasa judicial”) for USD 83,400,000 (i.e., 3% of the claimed damages). As a result of
not paying such an amount, the taxpayer (i.e., José María Cantos) received two (2)
penalties: (a) a fine of USD 41,700,000 (i.e., 50% of the accrued tax), and (b) the
prohibition on performing any business activity.
In 2002, the Inter-American Court on Human Rights found that the intention to
collect such a tax amount, was out of proportion. In consequence, the Argentine State
violated Articles 8 and 25 of the American Convention on Human Rights (hereinafter,
the “Convention” or the “American Convention”), which respectively recognize the
taxpayer’s right to a fair trial and judicial protection. The Court ordered the State to: (a)
refrain from collecting the judicial tax and the corresponding fine imposed on Mr.
Cantos, and (b) suppress any other measures adopted in the detriment of his assets and
businesses.
In the words of the own Inter-American Court on Human Rights, “…it must be
said that the amount set in the form of filing fees and the corresponding fine are, in the
view of this Court, an obstruction to access to the courts. They are unreasonable, even
though in mathematical terms they do represent three percent of the amount of relief
being claimed. This Court considers that while the right of access to a court is not an
absolute and therefore may be subject to certain discretional limitations set by the
State, the fact remains that the means used must be proportional to the aim sought. The
right of access to a court of law cannot be denied because of filing fees. Consequently,
with the amount charged in the case sub judice, there is no relationship of
proportionality between the means employed and the aim being sought by Argentine
law. Said amount patently obstructs Mr. Cantos’ access to the court and thereby
violates Articles 8 and 25 of the Convention. The fact that a proceeding concludes with
a definitive court ruling is not sufficient to satisfy the right of access to the courts. Those
participating in the proceeding must be able to do so without fear of being forced to pay
disproportionate or excessive sums because they turned to the courts. The problem of
excessive or disproportionate filing fees is compounded when, in order to force
payment, the authorities attach the debtor’s property or deny him the opportunity to do
business.”1
Examples of tax claims being filed with the Inter-American Court on Human
Rights, clearly do not abound. However, the only case commented above (i.e., José
María Cantos v. Argentina) demonstrates by itself that it is legally possible.
III. Laureano Brizuela Wilde v. Mexico: another tax claim admitted by the Inter-
American Commission on Human Rights
There is another example of a tax claim being filed in the framework of the
inter-American system for the protection of human rights.
We have to remember that before filing any claim with the Court, the Inter-
American Commission on Human Rights (hereinafter, the “Commission” or the “Inter-
American Commission”) filters those which are deemed admissible. Once the
Commission concludes that the claim complies with all the necessary requirements (and
eventually the Government does not fulfill with the recommendations rendered by the
Commission), then such a claim may be filed with the Court.
In this sense, there is another tax claim which was declared admissible by the
Commission, although never filed with the Inter-American Court.
In 1989, Mexican police arrested Mr. Laureano Brizuela Wilde --allegedly-- for
tax fraud. After several weeks of being arrested, Brizuela Wilde would have been
pressured by the Tax Office with the purpose of signing a document acknowledging
income tax debts, in exchange for regaining his freedom.
1 Inter-American Court on Human Rights -- Case of José María Cantos v. Argentina -- Judgment on
Merits, Reparations and Costs of November 28, 2002 -- Paragraphs 54 and 55
The local criminal court ruled in favor of the taxpayer, who was acquitted of the
charge. Afterwards, Mr. Brizuela Wilde filed several claims looking for the
corresponding reimbursement of the tax payments made in accordance with the
aforementioned document. These claims were rejected.
The Inter-American Commission found that the claim filed by the taxpayer was
admissible. In the opinion of the Commission, several articles of the American
Convention on Human Rights may have been violated, namely: Articles 8 (“Right to a
Fair Trial”), 11 (“Right to Protection of Honor and Dignity”), 21 (“Right to
Property”) and 25 (“Right to Judicial Protection”), in addition to Articles 5 (“Right to
Personal Integrity”) and 7 (“Right to Personal Liberty”).
In the words of the Inter-American Commission on Human Rights, “in the
instant case, the petitioner complains that he was illegally and arbitrarily detained; that
his rights to consular assistance, presumption of innocence, and due process were
violated in the course of criminal proceedings, in which his detention was allegedly
used to coerce him to accept an --allegedly arbitrary and illegal-- debt to the State,
thereby also violating the principle of proportionality. He complains that all these facts
taken together, especially the way the State set about prosecuting him, always with
media coverage, constituted a violation of his right to honor and reputation… In light of
the above and given the facts presented by the parties and the nature of the matter
brought to its attention, the Inter-American Commission on Human Rights finds that in
the instant case the facts alleged by the petitioner might violate Articles 5, 7, 8, 11, 21,
and 25 of the American Convention…”2
IV. Admissibility requirements for filing a tax claim with the Inter-American
Court on Human Rights
Once we have confirmed the possibility of filing a tax claim with the Inter-
American Court, a brief reference to the main requirements to be complied with for a
tax claim being deemed admissible, may be useful.
IV.I. Subject matter jurisdiction
(i) The Inter-American Court on Human Rights --naturally-- assumes
jurisdiction before cases involving the violation of any rights enshrined in the American
Convention on Human Rights3. The Court also intervenes in cases of violations of other
conventions/protocols which, being adopted in the framework of the Organization of
American States (hereinafter, the “OAS”), expressly recognize its jurisdiction4.
2 Inter-American Commission on Human Rights -- Case of Laureano Brizuela Wilde v. Mexico -- Report
on Admissibility No. 64/14 of July 25, 2014 -- Paragraphs 41 and 44 3 American Convention on Human Rights, Article 44: “Any person or group of persons, or any non-
governmental entity legally recognized in one or more member states of the Organization, may lodge
petitions with the Commission containing denunciations or complaints of violation of this Convention by
a State Party.” 4 These are the cases of: (a) the Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights, and (b) the Inter-American Convention on Forced
Disappearance of Persons.
But beyond that, and in accordance with its case law, the same Court tends to
adopt a wider approach in the benefit of the claimant. The Inter-American Court on
Human Rights has also ruled in cases where other OAS human rights
conventions/protocols have been violated, even when such conventions/protocols did
not expressly recognize its jurisdiction5.
(ii) Strictly speaking, the Inter-American Court admits no claim filed by any
legal entities. Indeed, the Court only accepts claims to be filed by individuals.
That said, any measure or action undertaken by the Government against any
legal entity, may indirectly undermine the rights of those individuals linked to such
legal entity, in which case the Commission admits the claim and the Court assumes
jurisdiction6. In consequence, any practice to be adopted by the tax authorities to the
detriment of a company, would --for instance-- allow its shareholders and directors to
denounce a violation of their own rights in the framework of the inter-American
protection system.
This issue was properly addressed by the Court in occasion to decide the case of
José María Cantos v. Argentina (studied under item II of this report). The Argentine
Government had submitted a plea of lack of jurisdiction, arguing that: (a) the facts
alleged in the claim filed by Mr. Cantos, primarily affected his companies, and (b)
companies and other legal entities are not covered by the American Convention on
Human Rights, which only applies to individuals. However, the Inter-American Court
stated that “…in general, the rights and obligations attributed to companies become
rights and obligations for the individuals who comprise them or who act in their name
or representation. …This Court considers that, although the figure of legal entities has
not been expressly recognized by the American Convention, as it is in… the European
Convention on Human Rights, this does not mean that, in specific circumstances, an
individual may not resort to the inter-American system for the protection of human
rights to enforce his fundamental rights, even when they are encompassed in a legal
figure or fiction created by the same system of law. …In this respect, this Court has
already examined the possible violation of the rights of individuals when they are
5 For instance, the Court assumed jurisdiction on the occasion of enforcing: (a) the Inter-American
Convention to Prevent and Punish Torture --Case of Street Children (Villagrán Morales and Others) v.
Guatemala--, and (b) the Inter-American Convention on the Prevention, Punishment and Eradication of
Violence Against Women --Case of Miguel Castro Castro Prison v. Peru--. 6 “The petitioners also name SINTRAOFAN, a legal person, as an alleged victim on the ground that the
State did not permit it to operate freely, in contravention of its obligation under Article 8.1 of the
Protocol of San Salvador. …For its part, the State holds that the Inter-American Commission on Human
Rights lacks ratione personae jurisdiction to analyze a petition presented on behalf of a legal person, on
the basis that the latter are excluded from the protection offered by the Convention... In this regard, the
Commission has previously held that the Preamble of the American Convention on Human Rights and
Article 1.2 thereof provide that… the protection afforded by the inter-American system of human rights is
limited to natural persons. …Therefore, the Commission lacks ratione personae competence to pronounce
on alleged violations against a legal person, such as SINTRAOFAN. However, as noted, the Inter-
American Commission on Human Rights has ratione personae competence to examine the petition as
regards the members of SINTRAOFAN, who are also named as victims in this case...” Inter-American
Commission on Human Rights -- Case of Members of the Union of State Workers of Antioquia
(SINTRAOFAN) v. Colombia -- Report on Admissibility No. 140/09 of December 30, 2009 --
Paragraphs 53 and 54
shareholders. …The Court considers that it must reject the objection filed on lack of
competence.”7
Such an approach is consistent with the recommendations of the Latin American
Institute of Tax Law (in Spanish, “Instituto Latinoamericano de Derecho Tributario”
or “ILADT”), which has argued that “the protection of human rights also includes the
rights of... legal entities…”8
IV.II. Exhaustion of domestic remedies
Article 46.1.A of the Inter-American Convention on Human Rights provides that
for any claim to be considered admissible by the Commission, it is required that “…the
remedies under domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law”.
In this respect, some clarifications should be made:
(i) The Inter-American Court on Human Rights does not serve as a higher court.
The possibility of bringing a case before the Court, does not lead to an instance of
appeal. Its task/role is not to conduct a review of the sentences rendered by local courts.
The Inter-American Court does not assess the right or wrong enforcement of domestic
laws and regulations. The work of the Court consists in determining whether or not a
violation of human rights has occurred according to international conventions/protocols.
In consequence, the tax authorities may never justify a violation of the American
Convention based on the appropriate enforcement of domestic rules.
Such an issue was appropriately addressed by the Inter-American Court on
Human Rights in the case of José María Cantos v. Argentina (commented above)9.
(ii) Actually, the burden of proof falls on the corresponding Government. Where
applicable, the tax authorities should submit the plea of non-exhaustion of domestic
remedies, and indeed demonstrate that the taxpayer failed to exhaust all local judicial
channels.
Any tax claim to be filed with the Inter-American Court must include a brief
description of the measures adopted by the claimant to exhaust the available domestic
remedies10. However, the same Inter-American Court tends to understand such a
requirement on a fairly flexible/relative basis, in the sense that the non-compliance of an
essentially formal requirement should not undermine the primary objective of the OAS
system, which is the protection of human rights. Moreover, the non-exhaustion of
domestic remedies is commonly associated with the substantive theme of the claim,
7 Inter-American Court on Human Rights -- Case of José María Cantos v. Argentina -- Judgment on
Preliminary Objections of September 7, 2001 -- Paragraphs 27, 29 and 31 8 XX Latin American Conference on Tax Law -- Salvador de Bahía, 2000 9 Inter-American Court on Human Rights -- Case of José María Cantos v. Argentina -- Judgment on
Merits, Reparations and Costs of November 28, 2002 -- Paragraph 54 -- “…Esta Corte ha señalado en
reiteradas ocasiones que el Estado no puede eximirse de responsabilidad respecto a sus obligaciones
internacionales argumentando la existencia de normas o procedimientos de Derecho Interno.” 10 “Petitions addressed to the Commission shall contain… any steps taken to exhaust domestic
remedies…” Rules of Procedure of the Inter-American Commission on Human Rights, Article 28.8
when the local judicial channels are not appropriate to defend the human rights which
are being threatened or violated by the Government. In these cases, there truly is an
infringement of Sections 8 (“Right to a Fair Trial”) and 25 (“Right to Judicial
Protection”) of the American Convention, and therefore the Government is not able to
allege the non-exhaustion of domestic remedies as a defense11.
IV.III. Six-month term for the filing of the claim
In order to file any claim in the framework of the inter-American system for the
protection of human rights, the Convention provides a maximum term of six (6) months,
counted as from the effective exhaustion of the domestic remedies (i.e., the day when
the claimant is notified of the final decision rendered by the local competent court)12.
In the same sense as mentioned above (under item IV.II of this report),
applicable rules establish a fairly flexible/relative approach, when the local courts do
not provide with a final decision within a reasonable time. In these cases, it would be
enough that the taxpayer files his/her claim within a reasonable term13.
V. Other related cases
In addition to the cases mentioned under items II and III of this report (i.e., José
María Cantos v. Argentina, and Laureano Brizuela Wilde v. Mexico), we would deem
appropriate to refer to other cases related to taxes: (a) a tax claim which was rejected by
the Commission (and therefore never went to the Court) only for merely formal reasons
(case of Alfredo Arresse and Others v. Argentina); (b) a judgment on merits of the
Court which addressed certain tax issue only on a secondary level (case of Salvador
11 “Under the Convention, States Parties have an obligation to provide effective judicial remedies to
victims of human rights violations (Article 25), remedies that must be substantiated in accordance with
the rules of due process of law (Article 8.1)... Thus, when certain exceptions to the rule of non-exhaustion
of domestic remedies are invoked, such as the ineffectiveness of such remedies or the lack of due process
of law, …it is contended that the victim is under no obligation to pursue such remedies… Thus, the
question of domestic remedies is closely tied to the merits of the case. …It must also be borne in mind that
the international protection of human rights is founded on the need to protect the victim from the
arbitrary exercise of governmental authority. The lack of effective domestic remedies renders the victim
defenseless and explains the need for international protection. Thus, whenever a petitioner alleges that
such remedies do not exist or are illusory, the granting of such protection may be not only justified, but
urgent. ...This is why Article 46.2 of the Convention sets out exceptions to the requirement of recourse to
domestic remedies prior to seeking international protection, precisely in situations in which such
remedies are, for a variety of reasons, ineffective.” Inter-American Court on Human Rights -- Case of
Velásquez Rodríguez v. Honduras -- Judgment on Preliminary Objections of June 26, 1987 -- Paragraphs
91 and 93 12 “Admission by the Commission of a petition or communication… shall be subject to the following
requirements: …B. that the petition or communication is lodged within a period of six months from the
date on which the party alleging violation of his rights was notified of the final judgment…” American
Convention on Human Rights, Article 46.1 13 “In those cases in which the exceptions to the requirement of prior exhaustion of domestic remedies are
applicable, the petition shall be presented within a reasonable period of time, as determined by the
Commission. For this purpose, the Commission shall consider the date on which the alleged violation of
rights occurred and the circumstances of each case.” Rules of Procedure of the Inter-American
Commission on Human Rights, Article 32.2
Chiriboga v. Ecuador); and (c) an order issued by the Court before a tax claim
associated only with provisional measures (case of I.V. v. Bolivia).
V.I. Alfredo Arresse and Others v. Argentina
Between the years 1975 and 1986, public employees from the Argentine
Ministry of Health and Social Services, received productivity bonuses (in Spanish,
“bonificaciones por productividad”). Over such bonuses, the Ministry withheld not
only the social security taxes payable by the employees, but also those payable by the
Ministry.
The employees requested --before the Ministry-- both the suspension and the
reimbursement of the improper withholding. In 1989, the Ministry decided to recognize
their right to be reimbursed, but only to those who --at the time-- were working for such
a Ministry. Almost five hundred (500) retired employees were excluded from the
benefit of reimbursement, even when they were also subjected to the same improper
withholding.
As a result, the retired employees filed a claim with the Inter-American
Commission, arguing that the Argentine Government violated their right to equal and
non-discriminatory protection, enshrined in Article 24 of the American Convention.
The Commission declared such a claim as inadmissible for purely formal
reasons. More specifically, the Commission deemed that the claimants did not fulfill the
requirement provided under Article 46.1.A of the American Convention on Human
Rights. This means that domestic remedies had not been properly exhausted.
In consequence, the Inter-American Commission on Human Rights did not enter
into the substance of the case, and therefore never addressed the issue of whether the
decision of the Government to deny the reimbursement of the withheld taxes, infringed
the American Convention on Human Rights or not. However, such a ruling has the
virtue of emphasizing that “…any time a State alleges petitioners’ failure to exhaust
domestic remedies, it is incumbent upon the State to identify the remedies that should be
exhausted and demonstrate that the remedies that have not been exhausted are
adequate to rectify the alleged violation, that is to say, the function of those remedies
within the domestic legal system is suitable to address an infringement of a legal
right.”14
V.II. Salvador Chiriboga v. Ecuador
María and Julio Salvador Chiriboga were both siblings and owners of a real
estate property within the Municipality of Quito. In 1991, the Municipal Council
declared such a property to be of public utility with the purpose of proceeding with its
expropriation. Mr. and Ms. Salvador Chiriboga decided to appeal such a decision.
However, the Ecuadorian Judicial Branch allowed the Municipal Government to take
14 Inter-American Commission on Human Rights -- Case of Alfredo Arresse and Others v. Argentina --
Report on Inadmissibility No. 107/13 of November 5, 2013 -- Paragraph 41
immediate possession of the property. As a consequence, the claimants remained --for
more than fifteen (15) years-- without receiving their fair compensation.
The Inter-American Court concluded that the Ecuadorian State infringed the
right of the claimants to property, enshrined in Article 21 of the American Convention,
in addition to Articles 8 (“Right to a Fair Trial”) and 25 (“Right to Judicial
Protection”).
Even though this case was focused on the failure by the Government to pay the
corresponding compensation for expropriation, the Court also addressed a secondary tax
issue: the claimants were required to keep paying property tax between 1991 and 2007.
The Government recognized its mistake at the time of collecting such a tax, but the full
reimbursement of the improperly paid money, never took place. Specifically, the Inter-
American Court on Human Rights asserted that “…in the instant case, the payment of
taxes… evidence the imposition of additional charges, which are considered excessive
and out of proportion… and which represents an aggravating circumstance in relation
to the violation of the right to property.”15 Such a statement confirms the importance of
effectively reimbursing all improperly paid taxes in order to protect taxpayers’ right to
property.
V.III. I.V. v. Bolivia
In November 2016, the Inter-American Court on Human Rights delivered its
judgment on merits in a case where a woman (whose initials were I.V.) was subjected --
without her consent-- to a tubal ligation procedure in a Bolivian State hospital. The
Court ruled in favor of the claimant, founding that the State violated several of her
rights, including --of course-- the one to raise a family.
A few months later, the same woman requested the Court to order provisional
measures for the protection of her life and personal integrity (Articles 4 and 5 of the
Convention). Ms. I.V. alleged that --in January 2017-- the Bolivian Tax Office filed a
legal action against her, requiring the payment of VAT and income tax debts, in
retaliation for the judgment rendered by the Inter-American Court. The petitioner of the
provisional measures would have suffered a psychological crisis as a direct result of the
filing of such a legal action, being confined to a private mental health hospital. Because
of this, she requested that the Bolivian Government: (a) desists from the legal action
aimed to collect taxes, (b) takes charge of the medical and other related expenses
incurred by the woman, and (c)identifies the names of the individuals responsible for
the harassment and persecution conducted by the authorities . The taxpayer argued that
the Bolivian Government was violating Article 53 of the Court’s Rules of Procedure,
which provides that “States may not institute proceedings against… victims… nor exert
pressure on them… on account of statements, opinions, or legal defenses presented to
the Court.” The Inter-American Court denied the request for provisional measures on
the basis that its petitioner would not have provided sufficient evidence for
15 Inter-American Court on Human Rights -- Case of Salvador Chiriboga v. Ecuador -- Judgment on
Preliminary Objection and Merits of May 6, 2008 -- Paragraph 115
demonstrating that: (a) the legal action --filed by the Tax Office to collect debts for a
total amount of USD 155-- caused an irreparable damage, and (b) her rights to life and
personal integrity were facing a threat or violation of extreme gravity which would
require an urgent response.
Furthermore, the Court clarified that Article 53 of its Rules of Procedure does
not provide --to the victim-- any sort of overall immunity which may prevent the
Government from initiating all legal proceedings. On the contrary, such a rule only
entails that authorities are not allowed to take actions against someone in retaliation for
having appeared before the Inter-American Court on Human Rights. Everyone should
feel free to do so, without fear of persecution or harassment16.
That said, and even when the Court ultimately ruled against the petitioner, the
same Court took into consideration the seriousness of her allegations. Such a
supranational body is authorized to adopt provisional measures in the event of an
unlawful, arbitrary or abusive behavior from the tax authorities, though only when the
conditions provided under Article 63.2 of the Convention are met. Such provisional
measures are restricted to cases of extreme gravity and urgency, being those measures
necessary to avoid irreparable damages.
16 Inter-American Court on Human Rights -- Case of I.V. v. Bolivia -- Order on Provisional Measures of
May 25, 2017 -- Paragraphs 14 and 15 -- “Al interpretar dicha norma, la Corte ha afirmado que su
finalidad es garantizar que quienes intervienen en el proceso ante la Corte puedan hacerlo libremente,
con la seguridad de no verse perjudicados por tal motivo. …La Corte estima pertinente aclarar que dicha
norma no implica… una prohibición expresa de procesamiento contra las víctimas en un caso… resuelto
por este Tribunal. En efecto, dicha norma no estatuye una suerte de inmunidad general de enjuiciamiento
ni impide incoar los procedimientos que legalmente correspondan, sino que lo que prohíbe es que éstos
sean iniciados a causa de las declaraciones o defensa legal ante este Tribunal.”
The following document contains references made to the rulings issued by OAS human rights bodies (namely, the Inter-American Court and Commission on Human Rights) on the
protection of taxpayers’ rights. Prepared by Guzmán Ramírez, teaching fellow of Tax Law at ORT University Business School, Montevideo, Uruguay.
CASES FILED IN THE FRAMEWORK OF THE INTER-AMERICAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS IN
TAX MATTERS
Articles of the American
Convention on Human
Rights
Case Date Facts Decision Comments
8 (“Right to a Fair
Trial”)
25 (“Right to Judicial
Protection”)
José María Cantos v.
Argentina
November 28, 2002 In 1972, the Provincial
Tax Office of Santiago del
Estero (in Argentina)
committed irregularities at
the time of auditing the
companies owned by Mr.
José María Cantos.
Furthermore, Mr. Cantos
was subjected to
persecutions and
harassments for more than
ten (10) years.
Therefore, José María
Cantos filed (in 1986) a
legal action in an effort to
collect damages. More
specifically, Mr. Cantos
claimed the payment of
USD 2,780,000,000
(approximately). The
Argentine Supreme Court
not only rejected such a
claim, but also required
from Mr. Cantos the
payment of a judicial tax
The Inter-American Court
on Human Rights found
that the intention to
collect such a tax amount,
was out of proportion. In
consequence, the
Argentine State violated
Articles 8 and 25 of the
American Convention on
Human Rights, which
respectively recognize the
taxpayer’s right to a fair
trial and judicial
protection. The Court
ordered the State to: (a)
refrain from collecting the
judicial tax and the
corresponding fine
imposed on Mr. Cantos,
and (b) suppress any other
measures adopted to the
detriment of his assets and
businesses.
In the words of the own
Inter-American Court on
This is the only judgment
on merits of the Inter-
American Court on
Human Rights in tax
matters. Although tax
claims being filed with the
Inter-American Court on
Human Rights clearly do
not abound, this only case
demonstrates by itself that
it is legally possible.
Furthermore, the same
judgment highlights two
(2) important aspects
related to the jurisdiction
of the Inter-American
Court:
(i) Although --strictly
speaking-- the Inter-
American Court admits no
claim filed by any legal
entities (indeed, the Court
only accepts claims to be
filed by individuals), any
(in Spanish, “tasa
judicial”) for USD
83,400,000 (i.e., 3% of the
claimed damages). As a
result of not paying such
an amount, the taxpayer
(i.e., José María Cantos)
received two (2) penalties:
(i) a fine of USD
41,700,000 (i.e., 50% of
the accrued tax), and (ii)
the prohibition on
performing any business
activity.
Human Rights, “…it must
be said that the amount
set in the form of filing
fees and the
corresponding fine are, in
the view of this Court, an
obstruction to access to
the courts. They are
unreasonable, even
though in mathematical
terms they do represent
three percent of the
amount of relief being
claimed. This Court
considers that while the
right of access to a court
is not an absolute and
therefore may be subject
to certain discretional
limitations set by the
State, the fact remains
that the means used must
be proportional to the aim
sought. The right of
access to a court of law
cannot be denied because
of filing fees.
Consequently, with the
amount charged in the
case sub judice, there is
no relationship of
proportionality between
the means employed and
the aim being sought by
Argentine law. Said
amount patently obstructs
measure or action
undertaken by the
Government against any
legal entity, may
indirectly undermine the
rights of those individuals
linked to such legal entity,
in which case the Court
assumes jurisdiction.
In consequence, any
practice to be adopted by
the tax authorities to the
detriment of a company,
would --for instance--
allow its shareholders and
directors to denounce a
violation of their own
rights in the framework of
the inter-American
protection system.
(i) The Inter-American
Court on Human Rights
does not serve as a higher
court. The possibility of
bringing a case before the
Court, does not lead to an
instance of appeal. Its
task/role is not to conduct
a review of the sentences
rendered by local courts.
The Inter-American Court
does not assess the right
or wrong enforcement of
domestic laws and
Mr. Cantos’ access to the
court and thereby violates
Articles 8 and 25 of the
Convention. The fact that
a proceeding concludes
with a definitive court
ruling is not sufficient to
satisfy the right of access
to the courts. Those
participating in the
proceeding must be able
to do so without fear of
being forced to pay
disproportionate or
excessive sums because
they turned to the courts.
The problem of excessive
or disproportionate filing
fees is compounded when,
in order to force payment,
the authorities attach the
debtor’s property or deny
him the opportunity to do
business.”
regulations. The work of
the Court consists in
determining whether or
not a violation of human
rights has occurred
according to international
conventions/protocols.
In consequence, the tax
authorities may never
justify a violation of the
American Convention on
Human Rights based on
the appropriate
enforcement of domestic
rules.
5 (“Right to Personal
Integrity”)
7 (“Right to Personal
Liberty”)
8 (“Right to a Fair
Trial”)
11 (“Right to
Protection of Honor and
Laureano Brizuela Wilde
v. Mexico
July 25, 2014 In 1989, Mexican police
arrested Mr. Laureano
Brizuela Wilde --
allegedly-- for tax fraud.
After several weeks of
being arrested, Brizuela
Wilde would have been
pressured by the Tax
Office with the purpose of
signing a document
acknowledging income
The Inter-American
Commission on Human
Rights found that the
claim filed by the
taxpayer was admissible.
In its opinion, several
articles of the American
Convention on Human
Rights may have been
violated, namely: Articles
8 (“Right to a Fair
Before filing any claim
with the Court, the Inter-
American Commission on
Human Rights filters
those which are deemed
admissible. Once the
Commission concludes
that the claim complies
with all the necessary
requirements (and
eventually the
Dignity”)
21 (“Right to
Property”)
25 (“Right to Judicial
Protection”)
tax debts, in exchange for
regaining his freedom.
The local criminal court
ruled in favor of the
taxpayer, who was
acquitted of the charge.
Afterwards, Mr. Brizuela
Wilde filed several claims
looking for the
corresponding
reimbursement of the tax
payments made in
accordance with the
aforementioned
document. These claims
were rejected.
Trial”), 11 (“Right to
Protection of Honor and
Dignity”), 21 (“Right to
Property”) and 25 (“Right
to Judicial Protection”),
in addition to Articles 5
(“Right to Personal
Integrity”) and 7 (“Right
to Personal Liberty”).
In the words of the
Commission, “in the
instant case, the petitioner
complains that he was
illegally and arbitrarily
detained; that his rights to
consular assistance,
presumption of innocence,
and due process were
violated in the course of
criminal proceedings, in
which his detention was
allegedly used to coerce
him to accept an --
allegedly arbitrary and
illegal-- debt to the State,
thereby also violating the
principle of
proportionality. He
complains that all these
facts taken together,
especially the way the
State set about
prosecuting him, always
with media coverage,
constituted a violation of
Government does not
fulfill with the
recommendations
rendered by the
Commission), then such a
claim may be filed with
the Court.
Although this case never
went to the Court, it
represents another
example of the possibility
of filing a tax claim in the
framework of the inter-
American system for the
protection of human
rights, and such claim
being declared admissible
by the Commission.
his right to honor and
reputation… In light of
the above and given the
facts presented by the
parties and the nature of
the matter brought to its
attention, the Inter-
American Commission on
Human Rights finds that
in the instant case the
facts alleged by the
petitioner might violate
Articles 5, 7, 8, 11, 21,
and 25 of the American
Convention…”
24 (“Right to Equal
Protection”)
46 -- Requirement of
exhaustion of domestic
remedies
Alfredo Arresse and
Others v. Argentina
November 5, 2013 Between the years 1975
and 1986, public
employees from the
Argentine Ministry of
Health and Social
Services, received
productivity bonuses (in
Spanish, “bonificaciones
por productividad”). Over
such bonuses, the
Ministry withheld not
only the social security
taxes payable by the
employees, but also those
payable by the Ministry.
The employees requested
--before the Ministry--
both the suspension and
the reimbursement of the
The Inter-American
Commission on Human
Rights declared such a
claim as inadmissible. The
claimants did not fulfill
the requirement provided
under Article 46.1.A of
the American Convention
on Human Rights, which
means that domestic
remedies had not been
properly exhausted.
The Commission rejected
the claim, but only for
purely formal reasons.
Such supranational body
did not enter into the
substance of the case, and
therefore never addressed
the issue of whether the
decision of the
Government to deny the
reimbursement of the
withheld taxes, infringed
the American Convention
on Human Rights or not.
That said, such a ruling
has the virtue of
emphasizing that “…any
time a State alleges
petitioners’ failure to
improper withholding. In
1989, the Ministry
decided to recognize their
right to be reimbursed, but
only to those who --at the
time-- were working for
such a Ministry. Almost
five hundred (500) retired
employees were excluded
from the benefit of
reimbursement, even
when they were also
subjected to the same
improper withholding.
As a result, the retired
employees filed a claim
with the Inter-American
Commission, arguing that
the Argentine
Government violated their
right to equal and non-
discriminatory protection,
enshrined in Article 24 of
the American Convention.
exhaust domestic
remedies, it is incumbent
upon the State to identify
the remedies that should
be exhausted and
demonstrate that the
remedies that have not
been exhausted are
adequate to rectify the
alleged violation, that is
to say, the function of
those remedies within the
domestic legal system is
suitable to address an
infringement of a legal
right.”
8 (“Right to a Fair
Trial”)
21 (“Right to
Property”)
25 (“Right to Judicial
Protection”)
Salvador Chiriboga v.
Ecuador
May 6, 2008 María and Julio Salvador
Chiriboga were both
siblings and owners of a
real estate property within
the Municipality of Quito.
In 1991, the Municipal
Council declared such a
property to be of public
utility with the purpose of
proceeding with its
The Inter-American Court
concluded that the
Ecuadorian State
infringed the right of the
claimants to property,
enshrined in Article 21 of
the American Convention,
in addition to Articles 8
(“Right to a Fair Trial”)
and 25 (“Right to Judicial
Even though this case was
focused on the failure by
the Government to pay the
corresponding
compensation for
expropriation, the Court
also addressed a
secondary tax issue: the
claimants were required to
keep paying property tax
expropriation.
Mr. and Ms. Salvador
Chiriboga decided to
appeal such a decision.
However, the Ecuadorian
Judicial Branch allowed
the Municipal
Government to take
immediate possession of
the property.
As a consequence, the
claimants remained --for
more than fifteen (15)
years-- without receiving
their fair compensation.
Protection”).
between 1991 and 2007.
The Government
recognized its mistake at
the time of collecting such
a tax, but the full
reimbursement of the
improperly paid money,
never took place.
Specifically, the Inter-
American Court on
Human Rights asserted
that “…in the instant case,
the payment of taxes…
evidence the imposition of
additional charges, which
are considered excessive
and out of proportion…
and which represents an
aggravating circumstance
in relation to the violation
of the right to property.”
Such a statement confirms
the importance of
effectively reimbursing all
improperly paid taxes in
order to protect taxpayers’
right to property.
4 (“Right to Life”)
5 (“Right to Humane
Treatment”)
I.V. v. Bolivia
May 25, 2017 In November 2016, the
Inter-American Court on
Human Rights delivered
its judgment on merits in a
case where a woman
The Inter-American Court
denied the request for
provisional measures on
the basis that its petitioner
would not have provided
Even when the Court
ultimately ruled against
the petitioner, the same
Court took into account
the seriousness of her
63 -- Provisional
measures
Also Article 53 of the
Court’s Rules of
Procedure
(whose initials were I.V.)
was subjected --without
her consent-- to a tubal
ligation procedure in a
Bolivian State hospital.
The Court ruled in favor
of the claimant, founding
that the State violated
several of her rights,
including --of course-- the
one to raise a family.
A few months later, the
same woman requested
the Court to order
provisional measures for
the protection of her life
and personal integrity
(Articles 4 and 5 of the
Convention).
Ms. I.V. alleged that --in
January 2017-- the
Bolivian Tax Office filed
a legal action against her,
requiring the payment of
VAT and income tax
debts, in retaliation for the
judgment rendered by the
Inter-American Court.
The petitioner of the
provisional measures
would have suffered a
psychological crisis as a
direct result of the filing
sufficient evidence for
demonstrating that: (a) the
legal action --filed by the
Tax Office to collect debts
for a total amount of USD
155-- caused an
irreparable damage, and
(b) her rights to life and
personal integrity were
facing a threat or violation
of extreme gravity which
would require an urgent
response.
Furthermore, the Court
clarified that Article 53 of
its Rules of Procedure
does not provide --to the
victim-- any sort of
overall immunity which
may prevent the
Government from
initiating all legal
proceedings. On the
contrary, such a rule only
entails that authorities are
not allowed to take
actions against someone
in retaliation for having
appeared before the Inter-
American Court on
Human Rights. Everyone
should feel free to do so,
without fear of
persecution or harassment.
allegations.
Such a supranational body
is authorized to adopt
provisional measures in
the event of an unlawful,
arbitrary or abusive
behavior from the tax
authorities, though only
when the conditions
provided under Article
63.2 of the Convention are
met. Such provisional
measures are restricted to
cases of extreme gravity
and urgency, being those
measures necessary to
avoid irreparable
damages.
of such a legal action,
being confined to a
private mental health
hospital. Because of this,
she requested that the
Bolivian Government: (a)
desists from the legal
action aimed to collect
taxes, (b) takes charge of
the medical and other
related expenses incurred
by the woman, and (c)
identifies the names of the
individuals responsible for
the harassment and
persecution conducted by
the authorities. The
taxpayer argued that the
Bolivian Government was
violating Article 53 of the
Court’s Rules of
Procedure, which provides
that “States may not
institute proceedings
against… victims… nor
exert pressure on them…
on account of statements,
opinions, or legal
defenses presented to the
Court.”
