The Judgement of the Supreme Court of the Netherlands

dated April 26, 2000, NR. 33.734

With Regard to an Appeal to Conscientious Objections Against the Payment of Taxes so far as Designated for Military Purposes

by Erik Hummels, Zeist, NL, August 6, 2000

The Supreme Court has shut the door for an appeal to conscientious objections. The Legislators must bring relief. In the US a bill has been introduced in Congress, in which bill the counterarguments of a constitutional and fiscal-legal nature against such a provision have been taken into account.

1. Introduction.

On April 26, 2000 the Supreme Court of the Netherlands has given a decision in a case of a conscientious objector against the payment of taxes so far as those taxes are designated for the financing of military purposes [note 1].

The Supreme Court has rejected the appeal in conformity with earlier decisions made in the eighties of the last century. The considerations in the decision are important.

Now that the judge does not want or is not able to bring relief, the legislator has to bring help.

Especially the General Comment dated July 20, 1993 of the Human Rights Committee established by the International Covenant on Civil and Political Rights (ICCPR), which general comment regards to article 18 of the said Covenant, dealing with the freedom of conscience, offers a good foundation to build up a provision for conscientious objection in this particular field of conscientious objections against lethal force [note 2].

There have been made proposals for a conscientious objections regulation before. There has even been a bill which was introduced in the Staten-Generaal (the parliament), but this bill has been withdrawn on January 22, 1997 [note 3].

In other countries the introduction of bills has been continued. I mention the US, the United Kingdom, Canada and Norway [note 4]. Up to now no bill has reached the finish line and got the status of an Act yet.

The bill that has been introduced in the US (House of Representatives US Congress) is very important, because in the bill more than 25 years of experience with introductions of such bills has been incorporated. That bill is therefore so important, because it accommodates almost all the serious counterarguments which can be made by opponents against such a provision for conscientious objections.

If such a bill would be introduced in The Netherlands, such a bill would have to be completed with a solution of the problem of the so called indirect taxes, especially the Value Added Tax (VAT).

2. The decision of the Supreme Court dated April 26, 2000, Nr. 33.734

On April 26, 2000 the Supreme Court has judged in a case of a conscientious objector. The conscientious objections concerned had been against the payment of taxes so far as the objector had to contribute to the financing of the military expenditure.

In the first place the conscientious objector had asked because of that that the amount of the tax assessment would be diminished with 9%, because 9% of the amount of the assessment can be considered as designated for the military expenditure of the nation.

In the subsidiary place the conscientious objector asked the Court to decide that an amount equal to 9% of the tax assessment would not be allowed to be spent for the financing of military purposes.

With regard to both requests the Supreme Court has considered the following:

The Supreme Court considers that the articles 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) ans 18 of the ICCPR both about freedom of conscience) are not applicable in this case, because the rights guaranteed in those articles do not mean the freedom to refuse the payment of taxes on the ground of religious or conscientious objections so far as the revenue of the taxes is used for purposes which the taxpayer cannot conciliate with his religious belief or conscience for example military purposes.

The Supreme Court continues its reasoning:

The duty to pay taxes is a general duty; the individual taxpayer is not allowed neither totally nor partially, to make the fulfilment of his duty dependent on the purpose to which the authorities use that tax money, not even on grounds of objections which are derived from the religious belief or conscience (...).

Because of this the Supreme Court judges that there is no ground for a diminishing of the tax assessment as requested and that there is no ground as well for granting the subsidiary request

(...) leaving aside that (...) granting of such a request would exceed the jurisdiction of the judicial power of the tax court, and also leaving aside that by such a diminishing of the tax assessment or granting of such a request the purpose wished by the taxpayer could not be reached. For neither the reduction of the tax assessment of an individual taxpayer, in combination or otherwise with the payment of an equal amount in a special fund, nor the designation of a percentage of the taxes paid by him which are not allowed to be used for a certain purpose, can prevent that the tax revenue, to which the taxpayer still has contributed, namely the amount with regard to which the reduction or designation has no influence, will be used for a purpose undesired by him.

3. The General Comment dated July 20, 1993 on article 18 of the ICCPR of the Human Rights Committee established by that ICCPR.

That the Supreme Court considered article 18 of the ICCPR not applicable in this case is in view of the communications of the Committee dated 1992 and 1993 not surprising.

However, the Supreme Court passed without attention the General Comment of the said Committee on article 18 (General Comment 22, 48th session, July 20, 1993)

In this General Comment the Committee considered, so far as relevant for our subject, that ‘the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief’.

The General Comment speaks about ‘to use lethal force’.

In an extensive interpretation ‘to use lethal force’ will include the financial contribution to military expenditure through taxation. For morally the financing of deadly violence perpetrated by others is equally bad as perpetrating deadly violence yourself.

In a restrictive interpretation of ‘to use lethal force’ the payment for deadly violence is not included. In that case only personal military service will be included.

The Human Rights Committee could give a further explication about this in an additional or new General Comment on article 18 ICCPR [note 5].

4. Judge or legislator?

The first ‘leaving aside’ consideration of the Supreme Court in the mentioned decision dated April 26, 2000, saying that granting of the requests would exceed the jurisdiction of the tax court, is all the more so a reason for the thought that a regulation for accommodation of these conscientious objections must be expected from the legislation and not from the courts, even in a case in which the judge accepts that the mentioned treaty articles (article 9 ECHR and article 18 ICCPR) are violated.

Apart from that: other provisions for conscientious objections have been introduced in Dutch law by the legislator (both on a higher and a lower level).

I mention the Compulsory Education Act, the Disabled Persons Act and the other social security acts, the Contagious Diseases Act 1928, the Immunisation Military Personnel Act 1953, the Compulsory Motor Vehicles Liability Act, the Financing of Development Nuclear Energy Act, the Academic Statute (with regard to animal experiments), the Military Service Refusal Act and the later Conscientious Objections to Military Service Act, and last but not least the Civil Code article 6:681, according to which courts can restore somebody in his job if the dismissal of the employee was given only in connection with refusal of the employee to do his task on serious grounds of conscience.

5. Not a percentage but all tax money paid by the conscientious objector has to be designated to military purposes.

The argument of the second ‘leaving aside’ consideration of the Supreme Court in the mentioned decision dated April 26, 2000, that by granting of the requests the purpose wished by the conscientious objector would not be reached, can only be prevented in a regulation in which is ordered that all tax money paid by the conscientious objector is spent for nonmilitary purposes. In the bill that was introduced in the Dutch Parliament only a percentage of the tax money paid by the conscientious objector was involved in the provision, namely the percentage equal to the percentage that the Defense budget was in relation to the total budget of the nation. A number of other bills in other countries have also this disadvantageous point. A bill without this disadvantage is the current American bill (H.R. 1454).

6. The current American bill [note 6].

The summary content of the bill is:

The Secretary of the Treasury will establish an account in the Treasury of the US for the deposit of some direct taxes paid by taxpayers designated as conscientious objectors. The method of deposit will be prescribed by the Secretary of the Treasury in a manner that minimizes the cost to the Treasury and does not impose an undue burden on such taxpayers. The money deposited in this special account of the Treasury will be allocated annually to any appropriations not for a military purpose. The Secretary of the Treasury will report to Congress each year on the total amount transferred to the mentioned account during the preceding fiscal year.

The term ‘designated conscientious objector’ means a taxpayer who is opposed to participation in war in any form based upon the taxpayer's deeply held moral, ethical, or religious beliefs or training and who has certified these beliefs in writing to the Secretary of the Treasury in such form and manner as the Secretary provides.

The term ‘military purpose’ means any activity or program which effects an augmentation of military forces or of defensive and offensive intelligence activities or enhances the capability of any person or nation to wage war. Certain institutions and activities are mentioned specifically. I mention: the Department of Defense, the CIA, the National Security Council, military activities of the Department of Energy and the NASA, foreign military aid.

The American bill includes no restriction of whatever constitutional power and such a bill could be introduced in The Netherlands as well without any constitutional or fiscal-legal problem.

7. The problem of the VAT, proposed solution of that problem.

To accommodate for 100% to the problems of conscience of the conscientious objectors it is necessary in The Netherlands to deal with and include in the future bill not only the direct taxes, like the Income Tax, but the indirect taxes, especially the VAT, as well.

In the US the defense is (almost completely) paid from the federal direct taxes. In The Netherlands (and at least in the other European Union States as well) the situation is different. The defense is paid from the total tax revenue under which the indirect taxes such as specifically the VAT.

Because such indirect taxes, generally spoken, have to be paid in relation to the expenditure of the net-income (the income minus the Income and/or Salary Tax), it is reasonable to mean that the level of the amount one has to pay for indirect taxes has some relation with the level of (net-)income. The easiest way to solve this problem is therefore probably the following [note 7].

The revenue of the nation from Income Tax, Salary Tax and/or the Gift and Death Tax is X. The total tax revenue (all direct and indirect taxes) is Y. If the amount which a conscientious objector pays with regard to Income Tax, Salary Tax and/or Gift and Death Tax, is multiplied by Y/X (Y divided by X) and the result of that is transferred to the established special account in the Treasury, then all the taxes paid by the conscientious objector are included and involved in the regulation for conscientious objections. This proposal could be improved by the introduction of the possibility that a higher amount will be transferred to the special account, if the conscientious objector proves with adequate evidence that he has paid more taxes than according to the mentioned method of calculation.

8. The cost in relation to the administration of this regulation and the prevention of abuse.

The bill introduced in the US Congress does not exclude the imposing of some burden on the shoulders of the conscientious objectors with regard to the cost of the provision. The imposing of an extra burden with regard to the cost can be helpful for the prevention of abuse of the provision as well.

Another perhaps additional possibility to prevent abuse can be found in the way someone can receive the status of designated conscientious objector. In the American bill is provided for a written procedure. It is also thinkable to complement this possibility with a procedure of oral examination by a court or a special commission.

9. The benefit, the point of the regulation.

Such a regulation will not lead to less defense expenditure. What is then the value of such a regulation for conscientious objections? The result of the provision is that conscientious objectors don't pay anymore for the military. It is a 100% accommodation of their conscientious objections.

It is comparable with the alternative civil service under the Conscientious Objections to Military Service Acts in most countries. The fulfilment of the alternative service under those laws did not lead to less military personnel and less war. In the place of a conscientious objector another person was called up (a person without such conscientious objections, of course).

In the same way the fact that tax money of the conscientious objector is transferred to a special account in the Treasury and designated to nonmilitary purposes, will not change nation's budget priorities at all. The fact that the mentioned Conscientious Objections to Military Service Acts had no influence at all on the quantity of the military personnel did not diminish the great value of those Acts. For it is about accommodation to conscientious objections, the implementation of a human right. The scope is limited, but of much benefit.

10. Conclusion

The decision of the Supreme Court dated April 26, 2000 has completely blocked the road to the courts for the conscientious objectors against the payment of his tax money so far as this tax money is used for military purposes. Only a legal regulation can bring relief. The General Comment of the Human Rights Committee established under the ICCPR dated July 20, 1993 on article 18 ICCPR is a solid foundation to realize a specific provision for conscientious objections in this field.

In the US a bill has been introduced which accommodates the relevant conscientious objections for 100%, a bill which takes into account the constitutional and fiscal-legal counterarguments against such a provision.

It is a ‘narrow bill’ made to go ‘through a narrow door’ [note 8].

The acceptance and passing of such a bill continues to be dependent on the political will of the majority in the elected assembly, of course.

With regard to the Dutch fiscal-legal situation a bill in conformity with the American bill has to be completed in such a way that the conscientious objector also ceases to pay for war through the payment of indirect taxes, such as the VAT.

Erik Hummels

Zeist, Netherlands, August 6, 2000

NOTES

Note 1.

H.R. 26 April 2000, Nr 33.734 after well documented (negative) conclusion of the Advocate-General Van den Berge

Note 2.

CCPR/C/CRP.2/Rev.1, adopted by consensus 20 July 1993, Human Rights Committee, 48th session, General comment on article 18 of the Covenant. Par. 11 van het genoemde general comment luidt: Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under article 18. In response to such claims, a growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious and other beliefs that forbid the performance of military service and replaced it with alternative national service. The Covenant does not explicitly refer to a right of conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest religious and other beliefs. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service. The Committee invites States parties to report on the conditions under which persons can be exempted from military service on the basis of their rights under article 18 and on the nature and length of alternative national service.

Note 3.

Bill Second Chamber Staten-Generaal, TK, 21.099 d.d. 6 April 1989, initiative bill of the members of parliament Beckers-de Bruijn (Green-Left Party) and De Visser (Labour). See about this withdrawal Weekblad Fiscaal Recht 1997/6235 page 331 and following

Note 4.

  1. The US: the bill ‘Religious Freedom Peace Tax Fund Act’ H.R. 1454, 106th Congress, Bill d.d. April 15, 1999 (Representative Lewis, Dem. and others)
  2. The United Kingdom: the bill ‘Military Expenditure (Conscientious Objection) Bill’, House of Commons Hansard report 19 October 1999 (MP John McDonell).
  3. Canada: the bill ‘Conscientious Objection Act, respecting conscientious objection to the use of taxes for military purposes’, Bill C-272, d.d. November 3, 1997 (MP Svend J.Robinson (NDP).
  4. Norway: the bill Dok.8:85 (1999-2000) Stortinget d.d. 14-06-2000 stortingsrepresentant Hallgeir H.Langeland (Labour)

Note 5.

Conscience and Peace Tax International (CPTI), an NGO which received from UN/ECOSOC special consultative status with the UN on June 11, 1999, prepares at the moment such a request.

Note 6.

106th Congress 1st Session H.R. 1454 (...)

In the House of Representatives April 15, 1999

Mr. Lewis of Georgia (for himself, Mr. Leach, Mr. Oberstar, Mr. Horn, Mr. Woolsey, Mr. Minge, Ms. Lee, Ms. Rivers, Mr. Delahunt, Mr. George Miller of California, Ms. Norton, Mr. DeFazio, Mr. Hinchey, Mr. Payne, Ms. Pelosi, Mr. Conyers, Mr. Markey, Mr. Engel, Mr. Towns, Ms. Brown of Florida, Mr. McGovern, Mr. Owens, Mr. Brown of California, Mr. Frank of Massachusetts and Mr. Moran of Kansas) introduced the following bill: which was referred to the Committee on Ways and Means.

A BILL

To affirm the religious freedom of taxpayers who are conscientiously opposed to participation in war, to provide that the income, estate, or gift tax payments of such taxpayers be used for nonmilitary purposes, to create the Religious Freedom Peace Tax Fund to receive such payments, to improve revenue collection, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.

Section 1. Short title.

This Act may be cited as the ‘Religious Freedom Peace Tax Fund Act’.

Section 2. Findings.

Congress finds that

  1. the framers of the United States Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment of the Constitution; and Congress reaffirmed it in the Religious Freedom Restoration Act of 1993;
  2. taxpayers who are conscientious objectors recognize and affirm their civic and legal responsibilities to pay their full share of Federal taxes, and seek to do so without violation of their moral, ethical, or religious beliefs;
  3. for more than 25 years, these taxpayers have sought legal relief from either having their homes, automobiles, and other property seized, bank accounts attached, wages garnished, fines imposed, and threat of imprisonment for failure to pay, or violating their consciences;
  4. conscientious objection to participation in military service based upon moral, ethical, or religious beliefs is recognized in Federal law, with provision for alternative service, and
  5. the Joint Committee on Taxation in 1992 and 1994 has certified that a tax trust fund, providing for conscientious objector taxpayers to pay their full taxes for non-military purposes, would increase Federal revenues.

Section 3. Definitions

DESIGNATED CONSCIENTIOUS OBJECTOR - For purposes of this Act, the term ‘designated conscientious objector’ means a taxpayer who is opposed to participation in war in any form based upon the taxpayer's deeply held moral, ethical, or religious beliefs or training (within the meaning of the Military Selective Service Act (50 USCApp.450 et seq.))., and who has certified these beliefs in writing to the Secretary of the Treasury in such form and manner as the Secretary provides.

MILITARY PURPOSE - For purposes of this Act, the term ‘military purpose’ means any activity or program which any agency of the Government conducts, administers, or sponsors and which effects an augmentation of military forces or of defensive and offensive intelligence activities, or enhances the capability of any person or nation to wage war, including the appropriation of funds by the United States for

  1. the Department of Defense;
  2. the Central Intelligence Agency;
  3. the National Security Council;
  4. the Selective Service System;
  5. activities of the Department of Energy that have a military purpose;
  6. activities of the National Aeronautics and Space Administration that have a military purpose;
  7. foreign military aid; and
  8. the training, supplying, or maintaining of military personnel, or the manufacture, construction, maintenance, or development of military weapons, installations, or strategies.

Section 4 Religious Freedom Peace Tax Fund.

  1. Establishment - The Secretary of the Treasury shall establish an account in the Treasury of the United States to be known as the ‘Religious Freedom Peace Tax Fund’, for the deposit of income, gift, and estate taxes paid by or on behalf of taxpayers who are designated conscientious objectors. The method of deposit shall be prescribed by the Secretary of the Treasury in a manner that minimizes the cost to the Treasury and does not impose an undue burden on such taxpayers.
  2. Use of Religious Freedom Peace Tax Fund - Funds in the Religious Freedom Peace Tax Fund shall be allocated annually to any appropriation not for a military purpose.
  3. Report - The Secretary of the Treasury shall report to the Committees on Appropriations of the House of Representatives and the Senate each year on the total amount transferred into the Religious Freedom Peace Tax Fund during the preceding fiscal year. Such report shall be printed in the Congressional record upon receipt by the Committees.
  4. Sense of Congress - It is the sense of Congress that any increase in revenue to the Treasury resulting from the creation of the Religious Freedom Peace Tax Fund shall be allocated in a manner consistent with the purposes of the Fund.

Note 7.

The idea originates from the Flemish peace tax campaign.

Note 8.

Marian Franz, Director of the National Campaign for a Peace Tax Fund (US), quotation from a speech made by her on the 8th International Conference on War Tax Resistance and Peace Tax Campaigns, July 6-9, 2000, Washington, DC, USA.