Non-Incrimination principle In Administrative and OLAF investigations

ended

As the border between administrative and criminal has faded, European Courts have increasingly extended criminal law's fair trial guarantees to administrative proceedings which present certain punitive traits. In this process, the adaptation of the privilege against self-incrimination has proven particularly challenging. While it is uncontested that no one can be forced (directly or indirectly) to admit their guilt, the extent of the privilege beyond self-accusatory statements is a contentious matter. The compliance of mandatory duties of cooperation and the extent of the right to silence are of special relevance in administrative proceedings. Also, the possibility to punish (and the definition of punishment) of non-cooperative behaviors of the defendant are a matter of heated debate. The CJEU’s most recent case law has innovated the traditional cautious approach expanding both the scope and the content of the privilege, potentially revolutionizing the legitimacy of European administrative investigations and proceedings. This project intends to contribute to the clarification of the scope of the nemo tenetur in OLAF investigation in light of the most recent CJEU case law, as OLAF represents the modern hybrid crime-repression strategy sitting between administrative and criminal law. Considering OLAF’s multifaceted duties and the different purposes of its reports (civil, administrative, criminal) it is fundamental to unpack the structure of the privilege and understand its applicability and form in each case. On the basis of this research, this project wants to develop guidelines on the application of the nemo tenetur and to offer interactive practice-oriented training to OLAF officials and AFCOS. These trainings shall contribute to a more effective application of the nemo tenetur principle, especially in view of the synergy between OLAF and EPPO.