SPAMPINATO v. ITALY DECISION - 23123/04 [2010] ECHR 644 (29 April 2010)

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SPAMPINATO v. ITALY DECISION 8

The applicant, Mr Carlo Spampinato, is an Italian national, who was born in 1978 and lives in Rome. He was represented before the Court by Mr N. Paoletti and Mrs A. Mari, lawyers practising in Rome. The Italian Government (“the Government”) were represented by their Agent Mr I. M. Braguglia and their Co-Agent Mr F. Crisafulli.

The facts of the case, as submitted by the parties, may be summarised as follows.

On the tax return he opted to allocate to the State an amount representing eight thousandths of the income tax due.

Under section 47(2) of Law no. 222 of 1985, eight thousandths of income tax is allocated to the State, to the Catholic church, or to one of the representative institutions of five other religions (Union of Seventh-Day Adventist Churches, Assemblies of God of Italy, Union of Methodist and Waldensian Churches, Evangelical Lutheran Church and Union of Jewish Communities of Italy), which receive such contributions under an agreement (intesa) governing their relations with the State (see Laws no. 516 of 1988, no. 637 of 1996, no. 517 of 1988, no. 449 of 1984, no. 409 of 1993, no. 520 of 1995, no. 101 of 1989 and no. 638 of 1996).

Those Laws are based on Articles 7 and 8 of the Constitution, which read as follows:

“The State and the Catholic Church are independent and sovereign, each within its own sphere. Their relations are governed by the Lateran Covenants. Amendments to these Covenants which are accepted by both parties shall not require the procedure of constitutional amendment.”

“All religious denominations are equally free before the law. Denominations other than Catholicism have the right to self-organisation according to their own constitutions, provided these do not conflict with Italian law. Their relations with the State are regulated by law, based on agreements with their respective representatives.”

Under section 47(3) of Law no. 222 of 1985, taxpayers are required to indicate their choice for the allocation of the relevant percentage of income tax when they fill in their tax return. If no option is indicated, the sum is divided between the State, the Catholic church and the institutions representing the other religions, in proportion to the choices made by all taxpayers.

As regards the income tax portion allocated to the State, it must be earmarked for the financing of activities with a social purpose, in accordance with the relevant principles laid down by Presidential Decree no. 76 of 10 March 1998. However, under section 2(69) of Law no. 350 of 2003, the sum of 80,000,000 euros (EUR) is deducted every year from the total amount of this portion and can be used by the State freely according to its needs.

“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.”

“The enjoyment of the rights and freedoms set forth in [the] 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.”

The Government first submitted that the applicant's complaint concerned, in reality, the actual taxation of income, the method of collection used and the allocation of a portion of the tax thus levied. In view of the State's margin of appreciation in matters of taxation, the Government argued that the complaint was incompatible ratione materiae with the Convention and its Protocols.

Secondly, the Government raised an objection on grounds of failure to exhaust domestic remedies, arguing that the applicant should have brought judicial proceedings under Articles 141 et seq. of Legislative Decree no. 196 of 30 June 2003 on the protection of personal data.

As regards the objection of incompatibility ratione materiae, the applicant contested the Government's position and argued that, in accordance with the Court's case-law, the right not to manifest one's religious beliefs fell within the scope of Article 9 of the Convention.

As to the objection that domestic remedies had not been exhausted, the applicant took the view that judicial proceedings within the meaning of Legislative Decree no. 196 of 30 June 2003 would not, in the present case, constitute an effective remedy. In this connection, he added in particular that the expression of a choice as to the allocation of the eight thousandths of his income tax was tantamount to giving implicit consent to the processing of personal data. Referring to that decree, he argued that judicial proceedings could not redress the situation complained of.

Concerning the objection of incompatibility ratione materiae, the Court notes that the complaint pertains to the applicant's alleged obligation to manifest his beliefs in religious matters when filing his income tax return, rather than to the subject of income tax per se or to the conditions in which that tax was levied or used. It follows that the Government's objection is ill-founded and cannot be upheld (see Alujer Fernández and Caballero García v. Spain (dec.), no. 53072/99, ECHR 2001 VI).

As regards the objection that domestic remedies had not been exhausted, the Court reiterates that, in order to comply with the rule of non-exhaustion, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Buscarini and Others v. San Marino [GC], no. 24645/94, § 26, ECHR 1999 I, and Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports of Judgments and Decisions 1998 VIII) and capable of redressing directly the situation complained of (see Pezone v. Italy, no. 42098/98, § 45, 18 December 2003). An applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach (see Kurt v. Turkey, no. 24276/94, Commission decision of 22 May 1995, Decisions and Reports (DR) 81-A, p. 121). It is furthermore incumbent on the Government claiming non-exhaustion to prove the existence of an accessible and appropriate domestic remedy (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996 IV).

In the present case, the Court observes that the Government have not referred to any precedents and have not shown that in the light of the circumstances of the present case the remedy under Articles 141 et seq. of Legislative Decree no. 196 of 30 June 2003 would have been accessible and effective and could have enabled the applicant to obtain redress for the situation complained of. In those conditions, the Court finds that the Government have failed to establish that the applicant had, in the present case, a sufficient remedy of which he should have availed himself. It follows that the objection of failure to exhaust domestic remedies must be dismissed.

The Government explained that the entry into force of Law no. 222 of 1985 had not led to any increase in the amount of tax levied, but had obliged the State to earmark a predetermined share of income tax for humanitarian works.

Moreover, the mechanism established by that law did not entail an obligation to express a choice as to the use of the eight thousandths of income tax, but simply allowed taxpayers who intended to make such a choice to decide on the allocation of the percentage. The Government observed that the abolition of that system would result, in particular, in the reduction of a significant source of income for religious institutions.

Furthermore, even supposing that Article 9 of the Convention implicitly embodied the right not to manifest one's religious beliefs, the obligation at issue, being prescribed by law and having a legitimate aim, constituted a limitation in accordance with the second paragraph of that Article.

In any event, the Government took the view that the choice as to the use of the income tax did not necessarily involve any manifestation of religious affiliation, as taxpayers could make up their minds according to the confidence they placed in the organisations in terms of commitment to humanitarian projects, regardless of religious beliefs.

The Government further argued that, in accordance with the Court's case-law, the States retained the possibility of financing, directly or indirectly, one or more religious organisations.

As to the mechanism introduced by section 2(69) of Law no. 350 of 2003, the Government added that it had not entailed a new burden for taxpayers who had chosen to allocate the percentage of tax at issue to the State, as the sum of EUR 80,000,000 was deducted from the total amount of the eight thousandths of income tax thus allocated to the State. There being no increase in the tax levied on the taxpayers' income, the application of section 2(69) of Law no. 350 of 2003 did not constitute a violation of Article 1 of Protocol No. 1.

Lastly, having regard to the freedom allowed to the religious organisations to decide on the use of the funds thus received, the Government observed that the entry into force of Law no. 350 of 2003 had had the effect of giving the State a margin of appreciation that was equivalent to that of the religious organisations in terms of how the funds were to be used.

The applicant argued, for his part, that on account of the system introduced by Law no. 222 of 1985 for the allocation of eight thousandths of one's income tax, taxpayers were obliged to make a choice that entailed a manifestation of their religious beliefs.

In addition, the system in question breached the public authorities' duty of neutrality in religious matters. That duty stemmed from the principle of the secular State, a consequence of which was the prohibition on financing of religious organisations.

In the applicant's submission, even his choice to allocate to the State the relevant percentage of his income tax had not prevented the use of part of those funds for religious activities, particularly as it was the practice of public authorities to transfer part of that amount to religious institutions.

Lastly, the applicant observed that, whilst the national legislature had, under section 1(337-340) of Law no. 266 of 23 December 2005, introduced a system to enable the allocation of five thousands of income tax to secular organisations, that system was not optional in relation to that of Law no. 222 of 1985.

The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260 A, and Buscarini and Others, cited above, § 34).

While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one's religion alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one's religion or belief may take, namely worship, teaching, practice and observance (see, mutatis mutandis, Cha'are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 73, ECHR 2000 VII).

As to Article 14 of the Convention, the Court reiterates that this provision does not prohibit every difference in treatment in the exercise of the recognised rights and freedoms. A difference in treatment will only be discriminatory and constitute a breach of the principle of equal treatment if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Darby v. Sweden, 23 October 1990, § 31, Series A no. 187).

In the present case, the Court is unable to share the applicant's view that the choice for the allocation of a portion of his income tax necessarily obliged him to indicate a religious affiliation. It observes that under section 47(3) of Law no. 222 of 1985, taxpayers are entitled not to make any choice as to the allocation of the eight thousandths of their income tax. Accordingly, the provision in question does not entail an obligation to manifest one's religious beliefs in a manner that may be regarded as contrary to the Articles of the Convention on which the applicant relied.

This complaint must therefore be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court reiterates that the levying of taxes constitutes in principle an interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1 and that such interference may be justified under the second paragraph of that Article, which expressly provides for an exception in respect of the payment of taxes or other contributions.

However, this issue is nonetheless within the Court's control, because a financial liability arising out of the raising of taxes or contributions may adversely affect the guarantee secured under this provision if it places an excessive burden on the person or entity concerned or fundamentally interferes with his or its financial position (see Wasa Liv Ömsesidigt, Försäkringsbolaget Valands Pensionsstiftelse v. Sweden, no. 13013/87, Commission decision of 14 December 1988, DR 58, p.186).

Moreover, it is in the first place for the national authorities to decide what kind of taxes or contributions are to be collected. The decisions in this area will commonly involve the appreciation of political, economic and social questions which the Convention leaves within the competence of the States parties, the domestic authorities being better placed than the Court in this connection. The power of appreciation of the States parties in such matters is therefore a wide one (see Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, 23 February 1995, § 60, Series A no. 306 B, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, §§ 80-82, Reports 1997 VII).

Such a margin of appreciation, in the building of the fragile relations that exist between the State and religions (see Cha'are Shalom Ve Tsedek, cited above), is all the more warranted in that there is no common European standard governing the financing of churches or religions, such questions being closely related to the history and traditions of each country (see Alujer Fernández and Caballero García (dec), cited above).

The Court notes that the tax legislation complained of did not provide for a tax to be added to the ordinary income tax but only for a specific allocation of a percentage of the total amount of income tax levied. In any event, that legislation falls within the State's margin of appreciation and cannot as such be regarded as arbitrary. Having regard to the circumstances of the case, the Court finds that the legislation in question cannot be said to have imposed an excessive burden on the applicant such as to upset the “fair balance” that has to be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.

This complaint must therefore be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

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