Yes to right to silence also with respect to the investigative powers of the Bank of Italy and of Consob when responses to the supervisory authority reveal their responsibility for a illicit punishable by administrative sanctions of a punitive nature or for a crime.
Consult: yes to the right to remain silent to avoid being blamed
According to Constitutional Court, the rule of TUF which punishes those who “fails to comply within the terms with the requests of the Bank of Italy or CONSOB“, With no exceptions in favor of those who are already suspected of having committed an offense.
It established this with sentence no. 84 of 30 April 2021, declaring the constitutional illegitimacy of article 187-quinquiesdecies of Legislative Decree no. 58/1998 (Consolidated text of the provisions on financial intermediation), in the part in which it also applies to physical person that it has refused to provide the Bank of Italy or Consob with answers that could reveal its responsibility for an offense subject to administrative sanctions of a punitive nature, or for a crime.
The Consultation has ruled in this regard as the fundamental right to silence it is also valid with respect to administrative proceedings before the Bank of Italy and Consob if the responses to the questions could derive one’s responsibility.
The case: Consob investigation into suspicious financial transactions
The question submitted to the constitutional judges was based on the story of a company director subjected to a huge pecuniary sanction for not having answered Consob’s questions on suspicious financial transactions allegedly made by him.
The entrepreneur had challenged the sanction, claiming that he had simply exercised the constitutional right not to answer questions from which one’s responsibility might have emerged.
Invested in the case, the Court of Cassation had raised the question of the constitutionality of the aforementioned article 187-quinquiesdecies.
The EU Court of Justice on the right to silence
The Constitutional Court then referred to the Court of Justice of the Union European Union, to ask whether, pursuant to Community law, the obligation to sanction the lack of cooperation with the supervisory authorities on the financial markets was also valid against those who are already suspected of having committed an offense and if, in these cases, such an obligation was compatible with the “right to silence”Recognized by the Italian Constitution, by international law and by the Charter of Fundamental Rights of the European Union.
The Grand Chamber of the Court of Justice expressed itself, most recently, with a judgment of 2 February 2021 (case C ‑ 481/19) clarifying that the right to silence is an integral part of the principle offair trial and also operates in the context of administrative procedures that may lead to the application of sanctions having a punitive nature, such as those at issue, provided for in the Italian legal system for the administrative offense of abuse of privileged information.
Hence today’s ruling of the Council: the right to silence prevents punishing a natural person who refused to answer questions, formulated during the hearing or in writing by the Bank of Italy or Consob, from which a his responsibility for an administrative or even criminal offense.
Unjustified obstructive behavior
In any case – the Court stressed – the right to silence does not justify obstructive behaviors that result in undue delays in carrying out the supervisory activity, such as refusal to attend a hearing, delaying maneuvers aimed at postponing the hearing. itself or the failure to deliver data, documents, registrations pre-existing to the request of the authority.