Search of a domicile by an organ of the criminal police without prior judicial authorisation
Imminent threat of offence
Right to the protection of the privacy of personal and family life
Ex officio a posteriori judicial control
RULING Nº 278/07
2 of May of 2007
Home searches require prior court permission or a court order. However, in some cases, a home search performed by the police without prior judicial permission is constitutionally permissible, notably incases of violent crime, when there is strong evidence that an offence is imminent which poses a serious threat to someone's life or physical safety.
Where a police service carries out a home search without prior judicial permission, the constitutional system would appear to require an unofficial judicial review after the event.
I. During a criminal investigation that led to charges against five people of personal involvement in a kidnapping, an intentional homicide, profanation (concealment) of a dead body and illegal possession of a weapon, the courts initially dismissed an objection that the results of a search were invalid. The home of one of the accused had been searched because of strong evidence that the victim of a kidnapping and/or assault was in the flat in question, but the courts had not been immediately informed of the search and had not assessed the matter or given permission for the operation.
II. Two constitutional questions arose: the first to do with the statutory requirement to notify the courts of the police search in good time, the second to do with tacit judicial approval of the search deriving from the decision validating an accused's detention and placing the accused in custody.
Under the Constitutional Court's case law, sanctity of the home under Article 34 of the Constitution reflects, in one very specific area, the general guarantee in Article 26.1 of the Constitution of the right to personal and family privacy. Consequently, the former guarantee is not confined to protecting the home in the civil-law sense of the place of usual residence, but is wider in scope, seeking to protect dwellings as being enclosed spaces with which strangers are not allowed to interfere in so far as a range of behaviour specific to private and family life takes place there and occurs discreetly and freely.
Given the importance of the value at issue and the seriousness of the constitutionally permitted interference, the legitimacy of such interference must be subject to judicial verification in order to safeguard other constitutionally protected values or interests. A 48-hour lapse of time is not excessive, notably in comparison with the time limit for bringing before a court accused persons not detained under a court order. Subsequent judicial review as required by the Constitution can be regarded as having taken place if performed within that period.
In addition, although an independent and explicit judicial decision approving the search may be thought preferable, implicit approval, provided it is clear, adequately meets the constitutional objectives - that is, it confirms that the conditions on which the authorities are allowed to carry out a search without prior judicial permission were met.
In conclusion, the Court did not regard it as unconstitutional to interpret the code of criminal procedure to mean that, in the case of violent crime, and where one could presume the imminent commission of an offence posing a serious threat to life or physical safety, notice of a police search without prior judicial permission must be given to the investigating judge within 48 hours. The judicial decision approving it can be treated as implicit in the decision approving the accused's detention.
This approach taken by the Constitutional Court is confirmed by Judgment nos. 274/07 and 285/07, dealing with the same issues of constitutionally protected sanctity of the home and searches of the home.