Workshop 11: "Court Cases"

Led by Bart Horeman (Netherlands)

Report by Jan Birk (Germany)

Participants: David Basset (USA), Jan Birk (Germany), Dominique Boisvert (Canada), Lieven A. Denys (Belgium), Jan Hellebaut (Belgium), Bart Horeman (Netherlands), Lyle Jenks (USA), Annemie Nilsen (Norway), Rosa Packard (USA), Dirk Panhuis (Belgium), Katharina Rottmayr (Germany), Sepp Rottmayr (Germany), Christa Voigt (Germany), Nicholas Wright (USA).

Cases past and current

In Belgium Jan Hellebaut is having a juridical odyssey: The 1st judge told him he was in the wrong court, the 2nd judge (Court of appeals in Antwerp) looked interested but told him he was one day too late, and so he had lost his case for formal reasons. Now the supreme financial court (Hof van Cassatie) has to decide whether time really had elapsed. If so, the case will go back to an Appeals Court in another town.

In Canada there are few court cases and they are usually brought by individuals. In the 1980s there was one case that went up to the Supreme Court. There is no compilation of the cases. Thomas Berger writes in A Life of Justice that Canadian courts referred to US cases, which were lousy.

One of the most recent Court Cases in Germany was that of Jan Birk in September 2003. He had asked for not having to pay that percentage of his income tax that is spent for the military. This was denied because the use of taxes is the sole decision of Parliament, so his conscience could not possibly have been involved. After a decision of the Federal Constitutional Court in the early 1990s, this is the usual result. One way of keeping the number of court cases low is that the authorities will not answer to your demand in any way unless you are persistent. So this case was about the taxes of 1993.

On the court level the conscientious objectors will usually refer to a financial law that gives the tax authorities the right to reduce taxes or collect none at all. It is common practice to apply this on cases of bankruptcy, which is not covered in the constitution but not to matters of conscience, which is covered.

Nowadays, however, several courts are responsive to an individual conflict of conscience. The legal problem is that both the budget right of Parliament and the freedom of conscience are in the constitution.

Someone who is not in touch with us got through all the German courts and is going to the EU court. Another court case is being prepared by the Rottmayr family and friends.

In Norway there were no court cases.

USA: The Philadelphia Annual Meeting (of the Quakers) had not paid the taxes for several employees and was ordered to pay the taxes plus a 50 % fine. It took the IRS (financial authorities) to court. The judge accepted the argument of the religious freedom act: The Quakers could have been expected to act as they did, so they did not have to pay the 50 % penalty, although they did have to pay the full tax. If they appeal, they risk having to pay the penalty. The Meeting decided to pay the taw to point to the success of not having to pay the fine, but to furthermore support their employees against the IRS.

The IRS never even hears cases that refer to religion, conscience etc. - which is a breach of laws. Daniel Jenkins told the judge: I came for what is behind your back (the flag with In God we trust). He asked the IRS for advice, and was sent to the tax court. He studied old and very old cases in New York State and found some where the military tax was redirected to social spending. The next court will give him the opportunity to appeal to the Supreme Court.

US citizens can't appeal to the UN Human Rights Committee, because the Government hasn't signed the Protocol of the International Covenant on Civil and Political Rights.

Fundamental Considerations

  • Our point is Where does the money come from. If a judge says it is Parliament who decides where the money goes to, it is a wrong reading. But this is hard to make a court accept.
  • The consideration no taxes - no military should make clear that there is individual responsibility even if Parliament makes budget decisions.
  • Equal treatment means: Someone who does not accept this situation has the same rights as someone who is at ease, so he must have the opportunity to appeal.
  • Ad impossibile nemo tenetur (= nobody can be made to do the impossible) is an old and fundamental juridical phrase. In our case: if I am faced with an impossible obligation I cannot be made to pay; and if my conscience forbids me to pay, it is a case of an act of God (overmacht / force majeure / höhere Gewalt).
  • It is oppression, when a government is making us to do what our conscience forbids.

Fundamental Questions

  • Does a court have the right to condemn Parliament? In Germany it has, in Belgium it has since last year, in the UK it will have in accordance to European legislation, in the Netherlands it has not. This is of crucial importance as national Supreme Courts are first instances for the UN Court.
  • Is the money raised for the military or is it simply spent for the military (see above)? The European Court stated that you have the right to refuse to pay a tax that is used for one purpose only.
  • Which court do we choose? One judge said: Don't come to the financial court! Challenge the state, because this is not a tax case but a human rights case. The answer will depend on the national situation.

What is there to do?

  • We have to continue to go to court because even if we loose we have to make clear that there is a conscience matter at stake. And we must organize public support and press coverage. There is a force in numbers: A former German minister of justice asked: How many cases are pending? No cases - no need to act. We badly need to win a case to get on with the law. Judges are sensible to the question of minority rights, and the freedom of conscience is a legal right. So court cases may be used as a leverage to force the legislator to do their job and pass a law on conscientious objection to military funding. And there can always be a surprise! (In court and on the high seas we are all in God's hand. Is a German saying))
  • Hearings are a means of making our issue and our position visible.
  • Available information is scarce—which is a handicap especially for lawyers. We need an internationally available archive of court cases. It should be short and give citations. This means a lot of work that has to be organised. (C. Voigt is starting an archive of German court cases, R. Packard of US cases. CPTI wants to collect the cases somehow, but doesn`t know how.)
  • We have to make a list of arguments, showing among other things what argument beats what other argument. (As an Israeli judge said: Your conscience doesn't apply here!) Lawyers take the easy way, so if they find that other courts in other countries go in a certain direction, they may follow.
  • Maître Lieven Denys (professor of international tax law at the Free University of Brussels) proposes to find a young lawyer who looks for a subject for his Ph.D. There is an International Bureau of Fiscal Documentation in Amsterdam that does tax research and might be interested.