THE RIGHT NOT TO CONFESS GUILT AND THE RIGHT NOT TO TESTIFY AGAINST ONESELF IN ADMINISTRATIVE PENALTY PROCEEDINGS.
This new edition of the 2021 ANUARIO DE DERECHO ADMINISTRATIVO includes the article prepared by Isabel Vizcaíno Fernández de Casadevante and Carlos L. Rubio Soler.
This is the third time that members of the Administrative and Regulatory Law department of CORTÉS, ABOGADOS have collaborated, jointly or separately, in this collective work.
In this article, entitled “Fundamental rights in administrative disciplinary proceedings: the forgotten right not to testify against oneself and not to confess guilt” (Chapter 43), the authors take an in-depth look at administrative disciplinary law and focus their analysis on the practical difficulties in exercising these rights in this area. In their analysis, the authors show us how the lack of specific regulation in our positive law, unlike what happens in criminal proceedings, means that these rights are all too often ignored or, at least, conditioned in such a way that they are practically unrecognisable.
Although its analysis describes specific sectorial areas, the article deals with an absolutely transversal subject, in that its considerations are totally applicable to any area or matter in which the Administration, in any of its forms (from Territorial Administrations and public bodies, such as the CNMV, CNMC, ICAC, Bank of Spain, to Professional Associations, etc.), exercises the power to impose penalties.
The authors examine some of the questions that surely arise for those who are subject to the opening of disciplinary proceedings (do I have the right not to make allegations, can I be required to answer and provide documents, can I be sanctioned again if I do not answer, can I be sanctioned again if I do not answer?)