TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 126/13

27 of February of 2013

Headnotes:

The Constitution establishes a principle that the consent needed to legitimise an intrusion into a person’s domicile must be given by the owner or legitimate possessor of the domicile who is the target of the applicable procedural measure (search warrant). Any norm which says that permission granted by another person who is domiciled in the space in question and has the power to make use of that space is sufficient to legitimise the entry by criminal police authorities into the domicile of an accused person or suspect is unconstitutional.

In the co-habitation situations to which family life – and particularly a conjugal relationship – gives rise, there is an assumption of the existence of bonds and practices of mutual trust which imply acceptance that any one of the family members can allow third parties to enter that shared space. The consent of the co-occupier of the domicile (in this particular case, the appellant’s spouse) thus benefits from the presumption that either member of the couple can consent to the entry of a third party into the common domiciliary space. This means that such third parties can enter the space in good faith, in that they can presume that the other spouse has also given consent. However, a situation in which one member of a couple permits entry by criminal police authorities into the joint domicile with the goal of collecting evidence against the other member of the couple is an exceptional one. In this case the objective of the entry is to pry into domains of the investigated person’s private personal life in order to obtain evidence that might incriminate him/her. In this specific instance of intrusion into the spatial sphere of the investigated person’s right to privacy and secrecy, the heart of the protection afforded by the right of inviolability does not allow one to consider either that the other spouse possesses the legitimacy to give consent, or that the spouse who is the target of the procedural measure can be presumed to have given his/her consent.

Summary:

It is commonplace in legal systems whose civilizational horizons are similar to ours for domiciles to enjoy increased protection against intrusions by agents of the state during the night. The right to the inviolability of one’s domicile at night deserves added constitutional protection. State agents can only enter a domicile at night with the consent of the holder of the right to its inviolability, except in situations of flagrante delicto, or with judicial authorisation in cases of especially violent or highly organised crime, including terrorism and the trafficking of human persons, arms or drugs. The facts that led to the detention of the accused person in the present case did not fulfil any of the latter requirements.

In the situation that gave rise to the present case, the accused’s wife consented to a night-time search of the joint domicile by the police. The question of constitutionality here was whether the consent which the police officers were given by the wife, in her position as co-occupier of the domicile, was sufficient to legitimise the search, or whether that consent had to have been given by the person who was the object of the criminal-procedural measure (a search warrant).

The Constitutional Court’s previous jurisprudence already referred to the concept of “targeted person for the purpose of consenting to domiciliary searches”. The Court has taken the view that the consent of another person who is also domiciled in the home in question and has the same power to dispose of it is not enough. The right to protect the privacy of one’s personal life means that it is not possible to act without the consent of the person who is the target of the measure. The Court has held that the domicile must be seen as a spatial projection of the dignity of the person, and that this in turn means that when various people share the same accommodation, all of them must consent to intrusions into it.

In substantive criminal law, the prevailing position is tending to be that consent from one of the concrete holders of the legal asset in question is sufficient to exclude the unlawfulness that would exist without that consent, but that this exclusion of penal unlawfulness is not directly transmitted to penal proceedings in the sense that it would suffice to ensure the admissibility of any resulting items of evidence.

Various people may have their domicile in the same housing space, above all within the context of family relationships. However, each one of them possesses the fundamental right to the inviolability of the domicile (of the spatial sphere of their right to privacy and secrecy), which the fact that the material object (the shared living space) to which the right refers is the same one does not turn into a collective right. This right to inviolability possesses the instrumental nature of a protector of personal privacy; it does not protect the power to dispose of or use a thing. The Constitution does not allow this right to be interpreted in a way which would mean that when various people live together in the same accommodation, it gives them a joint possession or ability to dispose of the fundamental right (a single right shared between of all of them) to the inviolability of that domicile. In situations in which people live together, what does exist is a plurality of individual rights that refer to (or are exercised through or by means of) the same material object (the space) – rights whose essential content consists of the ability to exclude intrusions by third parties into that reserved space.

Where consent to intrude within the scope of criminal proceedings is concerned, the general presumption that either member of a couple can consent to entry by a third party into the joint domiciliary space is not the presumption that best fulfils the mandate to optimise this constitutional guarantee. It is not easy to fulfil the requirements that consent in such cases be free and informed, if it is given by a co-occupier of the domicile who is asked to allow entry. That person does not always know what is best for the subject at whom the investigation is directed. There can be no doubt that the domicile’s inviolability does not turn it into a sanctuary in which to commit crimes or conceal their commission, but the Constitution already makes provision for this in the form of the restrictions it imposes on that inviolability (cases of especially violent or organised crime, flagrante delicto, or judicial authorisation).

The Constitutional Court therefore found the norm before it to be unconstitutional, when interpreted as it had been in this case.

Cross-references:

Ruling no. 507/94 (14-07-1994).