Inês Pereira de Sousa, Lecturer and PhD candidate at Porto Faculty of Law, Universidade Católica Portuguesa; Researcher at CEID – Católica Research Centre for the Future of Law; Member of ANESC – Academic Network on the European Social Charter and Social Rights; Member of EUCRIM –European Criminal Law Associations’ Forum - isousa@porto.ucp.pt

On February 2, 2021, the Court of Justice of the European Union (CJEU) had the chance to reexamine the right to remain silent and the right against self-incrimination in a case originating from the Italian Constitutional Court. This case, DB v Commissione Nazionale per le Società e la Borsa (Consob), involved financial penalties imposed on DB for insider trading and his refusal to cooperate with Italian authorities. The case raised questions about the interpretation of EU directives and the Charter of Fundamental Rights, specifically concerning the right to silence in administrative proceedings that could lead to penalties.

The CJEU delved into the concepts of the right to remain silent and the privilege against self-incrimination, highlighting their origins in human dignity and fair trial rights. Referencing both the European Court of Human Rights (ECtHR) and its own case law, the CJEU clarified that these rights apply even in administrative proceedings that could result in sanctions. They explored the application of these rights in various contexts, including competition law, where a balance must be struck between the duty to cooperate and the protection against self-incrimination.

The CJEU addressed two key questions. First, whether the right to silence applied to individuals in administrative proceedings, given that previous case law focused on legal entities. The Court determined that individuals had this right and that the principles established for legal entities did not directly transfer. Second, the Court considered whether the right to silence extended to proceedings that could lead to “punitive” sanctions, even if not strictly criminal. They concluded that the right to silence applied in such cases, particularly when evidence from these proceedings could be used in a subsequent criminal case.

The judgment in DB v Consob established that authorities must respect the privilege against self-incrimination in two scenarios: administrative proceedings potentially leading to criminal-like sanctions and those where evidence gathered could be used in subsequent criminal proceedings. This underlined a more robust protection for individuals compared to legal entities in this context.

The CJEU’s ruling reignited the debate on protecting individuals and legal entities from self-incrimination in proceedings with potential penalties. While some hoped for an expansion of these rights for legal entities, the CJEU maintained its stance on differentiated treatment. The judgment clarified that individuals enjoy greater protection, allowing them to remain silent in any proceeding that could result in a criminal sanction or provide evidence of criminal liability.

DB v Consob significantly shaped the understanding of an individual’s right to silence. It affirmed that EU law, particularly the Charter of Fundamental Rights, mandates the recognition of this right in a broader range of administrative proceedings. This clarification offers a more robust defense for individuals facing investigations and potential sanctions. However, the CJEU refrained from extending this level of protection to legal entities, confirming the existing distinction in their treatment.

Barnard & Peers: chapter 10, chapter 24

Photo credit: Jastrow, via Wikimedia Commons