In two recent rulings, dated December 4 and 10, 2025 , the Supreme Court (Third Chamber, Administrative Disputes, 2nd Section, Rulings 1578/2025 and 1605/2025 ) has delimited the scope of the right against self-incrimination in administrative sanctioning proceedings, establishing that this right cannot be invoked when the document required to be provided by the administration is imposed by a pre-existing legal rule or obligation, as in the case of invoices.
Thus, and based on Directive (EU) 2016 /343 , art. 7.5 (“the exercise of the right not to testify against oneself shall not prevent the competent authorities from gathering evidence that can be lawfully obtained through the legitimate exercise of coercive powers and that has an existence independent of the will of the suspects or accused “),in these two recent judgments the Supreme lists three assumptions in which it would not be possible to speak of violation of the right against self-incrimination :
1º When the contribution is voluntary by the defendant “because he considers that it may help his line of defense”, since in such a case “there is no exercise of coercive powers” by the administration.
2º When the document is not provided by the person under investigation, but “comes from a third party, in such a way that it is accessible to the authorities through a channel that does not imply the self-incrimination of the accused …, for example, when the authorities obtain information or documents from public institutions and records”.
3º (Finally, and what really interests us now) When the evidence is imposed by law, that is to say, it has “an existence independent of the will of the accused”.
On this last point, however, the judgment differentiates between “legal obligations established by law in a precise manner and those established in an open manner; indeed, in the latter cases, an excessively broad interpretation could result in leaving the right against self-incrimination empty of content”. And concludes : “In sum, obtaining documentary evidence by coercive means is not contrary to the right against self-incrimination, provided that the authorities – the tax authority – reason that such evidence is intended to obtain specific pre-existing documents – such as invoices -, therefore, documents that have a raison d’être that obeys a purpose other than that of sanctioning and of whose existence the authority is reasonably certain, since the ECtHR excludes the possibility of so-called fishing expeditions or prospective investigations – STEDH of 25 February 1993, Funke v. France -“. France -“.
Based on the foregoing, the following doctrine is established:
<< Self-incriminating documentation/information, provided to the Administration in tax enforcement proceedings (with a warning of the imposition of a penalty provided for in art. 203 LGT), may be used in the penalty proceedings provided that it has an existence that can be classified as independent of the will of the taxpayer.
The Administration, when transferring the evidence obtained in the application processes to the sanctioning procedure, must analyze whether it has obtained any evidence contrary to the right against self-incrimination and, if it has done so, it may not, for sanctioning purposes, take into account such evidence or the evidence derived therefrom. >>
The right against self-incrimination extends only to the sanctioning process, not operating in tax enforcement proceedings, and includes both the right not to answer questions from which the commission of the offense is directly inferred and the right not to provide documents or any other evidence that may be prejudicial to the defense of the person who is accused of committing a punishable conduct, provided that the provision of the document or evidence has an existence that can be qualified as dependent on the will of the taxpayer.>>
With this, the Chamber would come to close (at least apparently and in the strictly contentious-administrative sphere) this question of long discussion. In this respect, the proposed solution contemplates the asymmetry between administration and citizen and, in particular, how the position of the inspectorate vis-à-vis the inspected party sometimes makes the latter’s ability to act with full freedom only apparent. But, even so, I believe that the debate can hardly be considered completely closed, since it is still left to the administration itself to analyze “whether it has obtained any evidence contrary to the right against self-incrimination”, as a prius for weighing up the taxpayer’s rights, which, in view of the tendency to ignore them that it has been showing in recent years, makes it difficult to be the least bit optimistic on this point.
However, it will be necessary to be vigilant in the application of this new doctrine both in the contentious-administrative and criminal courts, when any of the crimes of arts. 305 and subsequent articles are involved. CP are concerned.
