ECJ: The right to remain silent does not justify dilatory tactics

Feb 17, 2021 Benn-Ibler Rechtsanwälte

In a reference for a preliminary ruling, the European Court of Justice (ECJ) ruled that a refusal to appear at a hearing, for example, cannot be justified by the right to remain silent.

The Italian Corporate and Stock Exchange Commission fined one person for insider trading and unlawful disclosure of inside information.

In addition, a fine of EUR 50,000 was imposed for failure to cooperate with the authorities because the defendant had postponed hearings several times and finally refused to answer the questions directed at him.

On appeal, the question referred to the ECJ for a preliminary ruling was whether the standards on the basis of which the fine was imposed violate the right to remain silent laid down in the Charter of Fundamental Rights of the European Union (Charter).

The ECJ stated that the right to remain silent laid down in the Charter must comply with Article 6 of the European Convention on Human Rights (ECHR) (right to a fair trial). The European Court of Human Rights (ECHR) had already stated that although the right to remain silent was not explicitly mentioned in Article 6 of the ECHR, it was a generally recognized norm of international law that formed part of the core of the concept of a fair trial.

However, the right to remain silent cannot justify every refusal to cooperate with the competent authorities. This applies, for example, to a refusal to appear at a scheduled hearing or to dilatory tactics aimed at postponing the hearing.

ECJ C-481/19 (02.02.2021)