The recent police entry without a court order into apartments where parties were held, as well as their subsequent justification by the Ministry of the Interior, has led to the outpouring of many lawyers who reject the arguments used to defend the intervention of the agents. More than half a dozen experts consulted by EL PAÍS appreciate excesses and several of them also recall the famous kick in the door law that the former socialist minister José Luis Corcuera tried to establish, which was declared unconstitutional almost 30 years ago.
“The tourist apartments are purple.” Interior, which has avoided criticizing the police, issued a statement on Tuesday in which it assured that the apartment the agents accessed “would not constitute a dwelling”, since “it was a tourist property that was being used for the realization of a party in contravention of current health regulations ”. A thesis rejected, for example, by Judge María Jesús del Barco, spokesperson for the Professional Association of the Magistracy (APM), who considers what happened “very serious”.
The jurists emphasize that for years the Constitutional Court has made it clear that the inviolability of the home is a very broad concept, which includes not only the idea of traditional housing, but also hotel rooms, caravans or even passenger cars. Therefore, the tourist floor is also covered, they emphasize. “Legally they have the same consideration,” underlines Judge Del Barco. “Of course a tourist apartment is a dwelling. A home is a physical space where we protect ourselves to exercise our privacy out of the eyes of others ”, continues Fernando Álvarez-Ossorio, professor of Constitutional Law at the University of Seville.
“The inviolability of the home is linked to the right to privacy of people, and protects the area where it develops its life under the protection of prying eyes”, recalls the lawyer Julia Muñoz-Machado in an article included in the book Minimum comment to the Spanish Constitution.
The teacher Álvarez-Ossorio also questions that the Ministry can claim that the property was being used as a party venue, a point at which Interior has wanted to emphasize to avoid the controversy. “Even in such a situation, why do officers assume, for example, that no one was going to stay for the night?” Moreover, several consulted jurists add, how did they know before the intervention that none of the participants was staying in it ?: “Just because of the noise they heard behind the door?”, The APM spokeswoman asks ironically, which underlines that, even in the cases in which the police have indications that a house is used for drug trafficking, a judicial authorization is required for their entry: “The judge acts here as a guarantor of fundamental rights”, he summarizes.
In the opinion of Lorenzo Cotino, professor of Constitutional Law at the University of Valencia, it would also be “extremely forced” to try to defend that the intervention of the agents responded to a situation of “urgent need” for health reasons. Well, they could wait at the door until the participants, sooner or later, left. Alberto López Basaguren, professor of Constitutional Law at the University of the Basque Country, states in the same vein: “If the owner of the house, whoever rented it, did not voluntarily allow the police to enter the agents could only do so if they had express judicial authorization ”.
It is “absurd” to allege the crime of disobedience. Several jurists also reject that it can be considered that those who refused to open the door to the agents were committing a “flagrant crime” of disobedience, as the police justified in the beginning to protect their actions. In the first place, underlines Professor Fernando Álvarez-Ossorio, because it would lead to reduce to the “absurd” the fundamental right of the inviolability of the home, since the agents could enter any house without a court order simply alleging that its occupants refuse to open them and, therefore, they commit a crime of disobedience that allows them access to the house. In addition, Judge Del Barco adds, because the “violation” of the fundamental right to the inviolability of the home cannot be justified by the mere administrative offense that the celebration of a pandemic party entails.
Javier Tajadura, professor of Constitutional Law at the University of the Basque Country, maintains a similar position in an article published in EL PAÍS: “The holding of these meetings or parties does not constitute a crime either; it is an administrative offense punishable by a fine […] The Police allege that an alleged crime of “disobedience” is taking place. It is an absurd interpretation that would empty the fundamental right to the inviolability of the home of content. This operates precisely when the citizen refuses —that is, he disobeys— to open the door to the police so that they can be identified ”.
“With the Corcuera law An attempt has already been made to force the law to say that there was a flagrant crime in the case of drug trafficking cases ”, remembers Lorenzo Cotino. But, Álvarez-Ossorio insists, the Constitutional Court has already stressed that “flagrante delicto” was an “exceptional” concept that, in order to be applied, requires that the Police have “direct evidence” by the senses that a crime is being committed – and holding a party in a pandemic is not — and, furthermore, that there is an “urgency” to act to prevent harm from being done. “If you read the police report, it seems that the agents are justifying themselves before what may come for possible irregularities,” says Judge Del Barco.
Political reactions. The PP has supported the actions of the police. The spokeswoman for the popular in the House of Congress Committee, Ana Vázquez Blanco, considers that there is sufficient legal basis for agents to enter homes without a court order. As he has maintained, the action occurred in cases of “flagrant crime of serious disobedience or resistance to the agents.” For its part, EH Bildu has requested the appearance of Fernando Grande-Marlaska, Minister of the Interior, in Parliament. Edmundo Bal, deputy for Citizens and candidate for the Community of Madrid, has also requested “explanations” from the Ministry.
Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.