Wednesday, January 25, 2023

Article 18.2 Spanish Constitution

18.2 The home is inviolable. No entry or search may be made without the consent of the occupant or a legal warrant, except in cases of flagrante delicto.

In a recent judgment of the military chamber of the Spanish Supreme Court, the Court upheld the lower courts' rulings finding no violation of the Spanish Constitution when the superiors of a member of the Civil Guard (Guardia Civil) entered his room without consent or a warrant, in order to check on his health.

At 6:00 am, on the date when the Sergeant in charge took attendance of all the members of his unit he asked them about the whereabouts of a missing Civil Guard.  A Civil Guard named Teofilo, who shared a room with the missing Civil Guard, responded that he wasn't coming because he tried to awaken him, calling out his name and shaking him vigorously, at 5:50 am, as he was leaving, but to no avail.  The Sergeant and another official went to their room and called out the Civil Guard's name repeatedly, but given no response they decided to enter the room concerned about the Civil Guard's health, when they saw that the key was in the door lock. Once inside, they found the Civil Guard sprawled on the bed, in a deep sleep.  After calling out his name several times, they shook him vigorously to see if they could wake him up.  When he finally woke up, they told him it was 6:05 am and that he should put on his uniform and present himself to the unit.  When he was dressed it was clear from his breath and his dilated eyes that he had been consuming alcohol and he was taken to be tested.  He was tested and the amount of alcohol in his blood surpassed what was allowed and he was disciplined with loss of salary and functions for ten days.

The Civil Guard sought to have the disciplinary measure annulled and declared unconstitutional since the Sergeant and his aide entered his room without his consent breaching the inviolability of his domicile, set forth in Article 18.2 of the Constitution.  The fact that they found him inebriated should be thrown out since it is "the fruit of the poisoned tree," given that they entered the room illegally.

The Supreme Court said that no force was used to enter the room, since the key was in the lock and the superiors were entering the room to check on his health, since his roommate had informed them that he had tried to shake him and could not wake him up.  The fact that the superiors wanted to check on his health was justification enough for them to enter the room.  It is provided for in the law that the superiors are responsible for the protection and security of their personnel and to attend to their needs.  The superiors stayed in the room for as little time as possible, solely to verify the status of the Civil Guard and to test him for alcohol. The Court found that the doctrine of "the fruit of the poisoned tree" had no applicability here and affirmed the lower courts' rulings.

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