The Grand Chamber of the Court of Justice of the European Union Acknowledges the Right to Remain Silent During Administrative Proceedings for Market Abuse
CJEU, Grand Chamber, Judgement 2 February 2021, C-489/19, D.B. v. CONSOB
Taking the Right to Remain Silent Seriously: a Comment to Constitutional Court, Order No. 117 Of May 10, 2019
The right to remain silent has always played a central role in measuring the level of protection afforded to suspects in criminal proceedings. Against the increasing spreading of a substantive interpretation of the criminal matter, the need to recognise this fundamental prerogative arises today problematically also in the context of punitive administrative proceedings. This contribution comments on the request for a preliminary ruling in which the Constitutional Court questions the legitimacy to sanction the refusal to cooperate of the person subject to a Consob investigation – possibility provided for also by EU law. After examining the possible decisional scenarios of the Court of Justice and their internal implications, the analysis concludes with a reflection on the sustainability of the “extended” criminal procedural law preached by the Engel doctrine.
The ordinance no. 117 of 2019, issued by the Italian Constitutional Court examined the right to remain silent in the administrative proceedings functional to the imposition of punitive sanctions. On this occasion, the Court seems to interpret the relevant Constitutional provision in the light of supranational laws, semantically regenerating the concept of “proceeding” under art. 24 Const. The Author examines the consequences of the ordinance, considering the relationship with the supranational systems and the ‘new’ constitutional geometry of the right to remain silent. In this respect, the Author explores, in particular, the possibility of expanding to all administrative proceedings - whatever the nature of the penalties at stake - the right to remain silent.
Italian case-law of recent times seems increasingly geared to empower the Enforcement Judge to amend and manage the sanction imposed with the final conviction. This phenomenon evokes comparative suggestions with the Anglo-American bifurcated trial, whereby the issue of the enforceable sentence is actually postponed from that of the guilt fact-finding. In this perspective, the present Article aims to assess if such brand-new trend towards bifurcation is a further attempt of the Italian criminal justice system to inoculate typical institution of the Common Law accusatorial model or instead it represents a peculiar effect of its irrepressible inquisitorial roots
The Hidden and Continous Control as Evidentiary Notion: Theoretical Premises for a Systematic Analysis
This paper focuses on new IT evidence research tools in criminal investigations. After a first pars destruens, where the main inconsistencies of the current regulatory and scholarly framework are highlighted, the Author offers a more constructive approach, trying to outline the common features of very intrusive activities, as such deserving to be surrounded by several safeguards from a de iure condendo standpoint.
Despite a wide diffusion, only in recent times the attention of the interpreters has been drawn on the spyware, a malware with high intrusive skills, which is installed in a target device and allows to perform a lot of investigation activities. The legislator does not seem to have fully considered the magnitude of these potential uses, having recently disciplined the spyware only as a tool for audio surveillance. Due to the uncovered areas (which relate to some of the most intrusive skills of the spyware), the discipline introduced by the legislator does not appear to be adequate, considering the need of protection of the fundamental rights at stake.
This paper aims to examine the most important issues involved by transnational access to electronic evidence. The latter is increasingly important due to the problematic interaction between the limitation of State jurisdiction within national boundaries and the dematerialization of data usable as evidence in criminal proceedings. The work mainly deals with the recent proposals of EU Regulation and Directive on European Production and Conservation Orders, aiming to analyse also their interference with the current law on judicial cooperation in criminal matters, especially with regard to the European Investigative Order. Some of the main problems concerning the relationship between the European Union and third States concerning transnational access to electronic evidence, are then briefly examined, and followed by some final remarks on the new model of direct cooperation with service providers established outside the State jurisdiction.
Granting Due Process of Law to Suspected and Accused Persons Involved in Parallel Criminal Proceedings in the EU
This paper aims to reflect on the deficiencies, from the criminal safeguards perspective, that can be found in the current procedure for the settlement of conflicts of criminal jurisdiction in the European Union. After a brief introduction and overview of the legal framework on conflicts of jurisdiction and the system of protection of rights and procedural safeguards in the European Union, the paper is divided into two different parts. The first part will focus on identifying and examining the principles, rights and safeguards at stake in a transnational situation of conflict of criminal jurisdiction between Member States. In the second part of this paper, the author will reflect on the improvements that should be adopted to grant a better standard of protection for the suspected or accused person, including the critical analysis of proposals made by scholars on this matter.