Glor v. Switzerland

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 118

April 2009

Glor v. Switzerland - 13444/04

Judgment 30.4.2009 [Section I]

Article 14

Discrimination

Obligation on person found unfit for military service to pay exemption tax: violation

Article 8

Article 8-1

Respect for private life

Obligation on person found unfit for military service to pay exemption tax: article 8 applicable

Facts: In 1997 the applicant was declared unfit for military service by a military doctor on the ground that he suffered from diabetes. In 1999 he was also released from the obligation to perform Civil Protection Service. In 2000 this second discharge was lifted and he was assigned to the civil protection reserves. In 2001 the authorities sent him an order to pay the military-service exemption tax for 2000, amounting to 716 Swiss francs (CHF – about 477 euros (EUR)), a sum calculated on the basis of his taxable income for that year. The applicant challenged the payment order, alleging that he was the victim of discriminatory treatment. He pointed out that he had always expressed his willingness to perform military service. In 2001 the Federal Tax Administration informed the applicant that all male Swiss citizens who did not suffer from a “major” disability were subject to the military-service exemption tax and pointed out that, under the Federal Court’s recent case-law, the threshold for “major” physical or psychological disability was to be considered at least 40%. By a decision of July 2003, the competent authorities considered, on the basis of a medical examination and expert report, that the applicant could not be exempted from payment of the tax as his degree of disability was lower than 40%. The Federal Tax Appeal Board upheld the decision. In a judgment of 2004, the Federal Court dismissed the applicant’s administrative appeal.

Law: Article 14 in conjunction with Article 8 – A State tax which, as in the instant case, originated in an inability to serve in the army on account of illness, and thus in a fact that was independent of the person concerned's will, indisputably fell within the ambit of Article 8 of the Convention, even if the consequences of this measure were primarily financial.

As to the merits, the applicant had not performed his military service because he had been declared unfit by the military doctor. As a result, he found himself obliged to pay the impugned tax, like all those in the same situation, with the exception of those who suffered from a serious disability or who performed the alternative civilian service. However, only conscientious objectors were eligible for the alternative civilian service. It was this situation that was challenged by the applicant in the instant application. Persons in similar situations were treated differently in two respects. Given that the list of grounds for discrimination in Article 14 was not exhaustive, it was indisputable that the scope of that provision covered the prohibition of discrimination based on disability. It remained to be examined whether the difference in treatment was based on objective and reasonable grounds and, in particular, whether there was a reasonable relationship of proportionality between the aim pursued, namely to restore a certain equality between those who performed military or civil protection service and those who were exempted, and the means employed.

The type of tax in question, which was imposed even on individuals who could not fulfil the obligation to compete military or civil protection service for medical reasons, did not seem to exist in other countries, or at any rate not in Europe. Furthermore, the fact of obliging the applicant to pay the tax in question, after having refused him the possibility of performing military (or civil protection) service, could appear to be in contradiction with the need to fight discrimination in respect of disabled persons and to promote their full participation in society. Consequently, the margin of appreciation enjoyed by States Parties in introducing different legal treatment for disabled persons was substantially reduced.

As to the interests at stake in this case, the Court was not convinced that it was in the interests of the community to require the applicant to pay an exemption tax to compensate for the efforts of military service. As to the applicant’s interest, the amount claimed as military-service exemption tax could not be described as insignificant in the light of the relatively modest nature of his taxable income.

Furthermore, the manner in which the relevant domestic authorities had acted in the case was open to question. Firstly, they had not taken sufficient account of the applicant’s personal circumstances. Further, once it had been decided that he suffered from a minor disability, the applicant had been prevented from contesting the presumption, based on section 4(1) (a) of the relevant federal law and the Federal Court’s case-law, that an individual who suffered from only a minor disability was not professionally disadvantaged. In other words, the applicant could not argue that his income was relatively modest and that, in consequence, the obligation to pay the exemption tax had been disproportionate in his case. The legislation did not provide for any exemption from the tax in question for those who were below the 40% disability threshold but who, like the applicant, had only a modest income. Finally, it was to be noted that the applicant had always stated his willingness to fulfil his military service, but that he had been declared unfit by the military doctor. In this case, the applicant’s unfitness for military service was based, according to the Government, on the obligation to inject himself with insulin four times a day. Without going beyond the margin of appreciation enjoyed by the States with regard to the organisation and operational effectiveness of their armed forces, the possibility of alternative forms of service for persons in a situation similar to that of the applicant could have been envisaged. Indeed, it was not disputed that the applicant would also have been willing to carry out alternative civilian service. However, and even if the legalisation in force in Switzerland provided for that option only in respect of conscientious objectors, assuming that civilian service required the same physical and psychological capacities as military service, alternative forms of civilian service, adapted to the needs of individuals in the same position as the applicant, could nonetheless be envisaged without difficulty.

In conclusion, in the instant case the domestic authorities had not struck a fair balance between the protection of the interests of the community and respect for the applicant’s rights and freedoms. In the light of the aim and effects of the impugned tax, the objective justification for the distinction made by the domestic authorities, particularly between persons who were unfit for service and not liable to the tax in question and persons who were unfit for service but nonetheless obliged to pay it, did not seem reasonable in relation to the principles which prevailed in democratic societies.

Conclusion: violation (unanimously).

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