RDF description Dr. Melissa Elechiguerra Labarca


Jan. 2011  -  Present
melissaelechiguerra [at] deusto.es

The progressive inclusion of constitutional guarantees in the administrative sanctioning procedure: from the ne bis in idem principle to the right to not self-incriminate

Directed by: Luis I. Gordillo Pérez

 14 Nov 2014 - 18:00
 University of Deusto
 Cum Laude by unanimity
 European mention

This research about the Right to no not self-incriminate in tax law has as a principal aim to focus in the determination of this principle with a transnational perspective. The interest about this subject was due to a particular situation in my country Venezuela regarding the right to not self-incriminate in tax law and the rights that the taxpayers have during the inspection procedure. In this regard, I have made a comparison between the situation in Venezuela and Spain related to this principle in tax law.

The Right to not self-incriminate constitutes a vast subject which has not yet been well defined in the way that other areas of the law have, which have consequences in its application, making it very variable in different judgments.

Therefore I considered relevant to put the basics of the subject in the first stage, in order to start mentioning the fundamental principles that serve as the foundation of the Tax Law to analyze how the right to not self-incriminate is considered in the tax field.

Before focusing in the main subject of the thesis, I made reference to the protection of taxpayers and the current conception about this subject. I considered essential to create a link between the great importance of the recognition of taxpayers rights and the relevance of the acceptance by the taxpayers of tax law. With this focus, I tried to study the situation from a taxpayer point of view, considering the connection that it is created between the Administration and the taxpayer.

Moreover, I referenced the General Part of Tax Law in Spain, because it will be the basis for developing the initial research question.  In this part it is showed how the right against self-incrimination is closely linked with other constitutional principles.

I considered very important for this research to analyze the power and limits of the Administration through its management of taxes, with special regard on the investigation, inspection and collection processes.

Then, I made reference to the Fundamental Rights that the Administration must respect during its activity of management of taxes, especially the right to not self-incriminate, which is linked with the other principles as presumption of innocence.

At this point I highlighted one of the most controversial issues regarding the right to not self-incriminate in tax law, which is the possible «contradiction» between the duty that the tax payer has regarding his/her collaboration to the Administration to provide the information required and, the right that the tax payer has to not self-incriminate when he gives the documentation that could be used to represent the basis for his incrimination.

It is important to highlight the differences arising from the separation of procedures: it is considered that if they remain linked the taxpayer can refuse to give self-incriminating information, whereas when the procedures are separate, the taxpayer must provide the information required by the administration but this cannot be used in the prosecution proceeding.

This evidences the clear dilemma that arises between the taxpayer's obligations to cooperate with the administration versus the rights protection during the inspection procedure.

Then, this research referred to the Spanish situation, and then proceeded to study the European Court of Human Rights (ECHR)’s case law, in order to refer to the current situation at an European level as a whole, where no treaties provide protection to taxpayers, as well as its importance to solve the situation at a national level, because it can have a significant impact on the effectiveness of the rights of taxpayers regarding the exercise of national sovereignty in situations between countries.

After that, I compared the different legislations regarding the right to not self-incriminate in tax law in Germany, Italy and France. I also made reference to the situation in Venezuela and in the United States of America regarding this principle. The reason why I made reference to those countries in Europe is mainly because of the similarities that this legislation above mentioned have with Spain. Regarding the brief explanation about the current situation in EEUU, its aim was to describe how this principle is conceived in other latitudes.

I believe it is very important to take the references from these legislations and make the respective comparison because there are important aspects in each of these legislations regarding the right to not self-incriminate that need considering, for example: the constitution of the different proceedings in each legislation, the respect of the rights of tax payers, etc. are all important aspects to take into account.

Also I made reference to some jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union.

Finally I analyzed the conception of the ne bis in idem principle in Europe and how the European Court of Human Rights and the Court of Justice have developed this conception. I considered important to make a comparison between the right to not self-incriminate and the ne bis in idem principle, because both of them where conceived in criminal matters but due the jurisprudence have been considered in administrative matters, and it still developing because at the moment there is not a harmonized determination of them at European Level.