The contentious-administrative appeal and the challenge of guaranteeing the review of culpability. Foundations for reform in light of article 2 of Protocol no. 7 to the European Convention on Human Rights

Abstract

The right to a review of culpability by a higher tribunal in the context of tax penalty proceedings remains an outstanding issue within the Spanish legal system, which has not yet been brought into conformity with the requirements of European law in this field. This right derives from Article 2 of Protocol No. 7 to the European Convention on Human Rights, which guarantees that any person convicted of a criminal offence, or of an offence of a criminal nature, is entitled to have the conviction or sentence reviewed by a higher tribunal. The absence of adequate regulation became even more apparent following the judgment in Saquetti Iglesias v. Spain delivered by the European Court of Human Rights, in which the Court held that the Spanish system of judicial review within contentious-administrative proceedings does not adequately secure the right to a re-examination of culpability. Recent developments have revived the debate, particularly in light of the impact of Organic Law 5/2024 on the Right to Defence of 11 November, as well as new applications lodged before the Strasbourg Court.