A precedent in favour of the extra-procedural effectiveness of the right against self-incrimination
Spanish Supreme Court (administrative Chamber) Judgement n.º 704/2025, 4th June, judge rapporteur: Requero Ibáñez.
The facts that are the subject of the resolution commented refer to an official of penitentiary institutions who, after giving an interview on the television program “Viva la vida” on Telecinco, on 19/5/2019, in which he commented on issues related to his public function, was the subject of an internal investigation procedure (“diligencias informativas”, “expediente de información reservada”, according to the applicable terminology) by the competent public administration (Subdirección General de Análisis e Inspección).
The officer refused to answer the questions of the instructors of the internal informative file, despite having been warned that he could be disciplined if he persisted in his refusal.
In fact, he was imposed a disciplinary sanction consisting of the suspension of his functions for sixty (60) days for committing a very serious offense: disobeying orders or instructions from a superior (art. 95.2.i) EBEP).
The civil servant filed a contentious-administrative appeal against the resolution of the Subsecretaría del Ministerio del Interior, which was upheld by the High Court of Justice of Madrid.
The State Attorney’s Office filed an appeal in cassation against the judgment of this court. The appellant warned that the position held in the contested judgment, in favour of conferring extra-jurisdictional effects to the right to not incriminate oneself provided for in art. 24 CE, has serious consequences, since it entails rendering the informative proceedings meaningless and useless, preventing the analysis and control of procedures by the Administration and not allowing the requesting of data from civil servants on how they provide their service.
The extraprocedural effectiveness of the guarantees provided for in art. 24 EC is by no means a matter of consensus in the doctrine. In fact, the traditional majority position has been to limit their effectiveness to the jurisdictional or administrative sanctioning sphere. This is recalled by our Constitutional Court in the recent STC n.º 107/2025, of May 12, regarding the validity of these rights in the context of a parliamentary investigation (FJ 2.A).a)): “First, according to STC 133/2018, FJ 4 a), the rights to effective judicial protection with interdiction of defenselessness and to a process with all guarantees (art. 24.1 and 2 CE) operate in the field of jurisdictional and administrative proceedings of a sanctioning nature, so that their alleged violation in the field of parliamentary investigations has to be redirected to that of the right to the presumption of innocence (art. 24.2 CE), in its extra-procedural dimension“.
Probably aware of this doctrine, the contentious-administrative Chamber openly appealed to weighting and casuism as methods to justify granting extra-procedural effectiveness to the right against self-incrimination of art. 24.2 EC and thus ratify the lower court ruling.
In the opinion of the Chamber, it is necessary to consider “the degree of certainty of the facts, the identification of the person responsible and the questions asked in the course of the informative proceedings”. When, as in the present case, the facts are clearly established at the time of the interview and there are no doubts as to who is potentially responsible, the informative diligences (reserved information file) do not make sense, being, from a material point of view, a disciplinary file. In such cases, the right not to incriminate oneself should take effect and protect the civil servant compelled to testify against himself.
Dr. Albert Estrada Cuadras
Internal Investigations Department – Molins Defensa Penal