Vulneración de Derechos Fundamentales por la obligada transposición de normativa europea. El conflicto entre el deber de colaborar con la Administración sancionadora y el derecho a no declarar contra uno mismo

Abstract

The judgement we present is interesting from a double perspective: (i) as adelimitation of the substantive right to remain silent before the initiation of an administrative sanctioning procedure. The judgement analyzes the balance between the citizen’s duty to collaborate with administrative authorities —particularly in cases of conducts related to highly regulated sectors such as the operation of the stock market— and the substantive right not to declare coercively or not to contribute to self-incrimination. In this sense, the ECJ has traditionally extended the guarantees ofthe criminal process to administrative sanctioning procedure when the result thereof is of such an entity that it may lead to the imposition of administrative sanctions «of a criminal nature». Secondly (ii), from a procedural point of view, it is interesting to analyze several spheres of protection of fundamental rights within the EU. The controversy arises asa result of a question of unconstitutionality raised by the Italian Corte di Cassazione. The judge of constitutional guarantees, in turn, refers a preliminary ruling of interpretation and validity of European law itself with respect to the European Charter of Fundamental Rights. And the European judge builds his doctrine based on that of the ECHR by applying the «homogeneity clause» of article 52.3 of the Charter. Thus, to resolve the same violation of the fundamental rights at stake, there are atleast three different circles involving four high courts.This second aspect will focus our attention.