The intimacy of a domicile is a fundamental right guaranteed by the Spanish Constitution (henceforth CE), but as all fundamental right it is not absolute, it may enter into conflict with other rights recognized in the CE, it means that according some circumstances the police might enter into a domicile. What are these circumstances?, what are the requisites needed to enter into a domicile legally? and above all, what is a domicile protected by the law? This is what I am going to try to answer through the following lines.
The first question we need to solve is, what is a domicile? According to the Spanish Penal Procedural Law ( in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), a domicile is a edifice or closed place, or the part of it destined mainly to the room of any Spanish or foreigner resident in Spain or its family (art. 554.2 LECrim). But the above definition is only destined to physical persons, a company has its own definition of domicile, it is the space which constituted the center of direction of the company, either a registered office or a establishment, or those other places where are guarded documents or other supports of its day-to-day which are reserved from the knowledge of three parties (art. 554.4 LECrim). Although the scope of a company docile is more narrow than the scope of a physical person domicile, if we pay attention to the definition provided by the law, the only companies which are protected are those investigated for a crime that can be attributed to a company. The Spanish jurisprudence also has defined the domicile of a physical person, as the place where an individual can behave without consideration to the social customs and can exercise its liberty more private, or any closed place where the private life can develop being indifferent if it is temporary or not. Therefore the concept of domicile established by the Spanish jurisprudence is broader than the concept included in the law, the only important thing we need to bear in mind to decide if a place is a domicile is how the person is using this place, because if he is using it as a home, may be a garage, but according to the law is a domicile. In the case of the companies, the protection guaranteed by the law and the jurisprudence to their domicile is less intense, the reason is obvious, the right to intimacy from where the right to the inviolability of the domicile derived is less affected, since the only expectancy of a company is the exercise of its business activity without interference of third parties.
Now we know what is a domicile. We have said in the introduction that the CE guaranteed the right to the inviolability of a domicile, and that this right is not absolute. Thereby the next question to solve is, what are the exceptions to this fundamental right? In the same article (art. 18.2 CE) that the CE declares the inviolability of a domicile it states tree exceptions to this inviolability, the consent of the owner, judicial authorization, or in case of flagrant crime. The consent of the owner has to be free, given by an adult, if he is an arrested person this consent has to be given in the presence of its lawyer, these and other requisites like these have been developed by the Spanish jurisprudence. Respect the judicial authorization, it has to have the form of an auto (art. 141 and art. 558 LECrim), hence duly motivated, pondering about the rights affected, on one side the right to the inviolability of the domicile and in the other side the obligation of the state to make justice. The case of the flagrant crime is more complex, but in essence, is when a crime has been committed in front of the police, or the criminals have been seen by the police soon after its commission and are fleeing. There are more exceptions to the inviolability of the domicile in the article 553, bur are odd and more difficult to find.
The infringement of the conditions necessaries to carry out a legal search, for example when the consent of the owner have been obtained using threats, will suppose the nullity of all the proof obtained during the search. This is consequence of the application of the doctrine of the \»fruit of the poisonous tree”, which at legal level has been established in the article 11.1 of Organic Law of the Judicial Power (in Spanish Ley Orgánica del Poder Judicial, LOPJ). This doctrine says that the proofs directly or indirectly obtained breaking fundamental rights cannot be used to destroy the presumption of innocence of an accused. Though this doctrine has been modulated by the Spanish tribunal which have affirmed that if the proofs obtained have not relation with the infringement of the law, being possible their discovery without the infringement denounced, they are also valid, because the there is not what the Spanish tribunals have called “conexión de causalidad”, the proofs obtained and the breaking of the right are not related, even when at first glance the proofs obtained may look as a consequence of this infringement.
When the search is not carried out in a domicile, nothing of what we have seen above will be applicable. The police has as one of its functions the investigation of the crimes (art. 282 LECrim), and this legal habilitation will be enough to enter into closed places when are not considered by the law as a domicile.
Hence, what we have to do if the police try to enter where we are? Always ask for a judicial resolution, never consent, even when we want to show a cooperative attitude. Their duty is to solve crimes, our right is to defend ourselves. And if they don’t have any and enter, two things may happen, one you are not in a domicile and they are in their right, or you are in a domicile and all the proofs incriminating you are null and void because they have enter without your permission.
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