Article 545 Spanish Criminal Procedure Act: Inviolability of the Home

Article 545 of the Criminal Procedure Act states the rule from which the whole regime of searches derives: nobody may enter the home of a Spanish national or of a foreign national resident in Spain without consent, except in the cases and in the form expressly provided by law. The provision is short and absolute in form, and its practical importance lies in the consequence of breaching it: evidence obtained in an unlawful entry is excluded, and with it, ordinarily, everything derived from it. For a foreign resident whose property was searched, this is the first article to consider.

Wording of Article 545 of the Spanish Criminal Procedure Act

Requirements and procedure

1. A home, understood functionally as the space in which private life is conducted, which includes hotel rooms, caravans and habitually occupied second homes, and excludes garages, commercial premises open to the public and communal areas.
2. Absence of consent, which must be free, informed and given by a person entitled to give it. Consent obtained by presenting entry as inevitable is not consent.
3. Absence of judicial authorisation identifying the property, the purpose and the persons authorised.
4. Absence of a case expressly permitted by law, such as flagrant offence, the pursuit of an offender, or an imminent danger to persons.

Defence strategy

Whether the space was a home. The protection attaches to private life, not to ownership. The defence establishes the use to which the space was put through utility consumption, furniture, personal effects and the accounts of neighbours. Conversely, where the search took place in a garage, a storeroom or a business area, the protection of this article does not apply, which is equally important to know, since an argument that cannot succeed should not displace those that can.

The quality of the consent. Consent given at the door to several officers, without any warning that it could be refused and that a warrant would otherwise be required, is routinely challenged. The defence obtains the record of the entry, examines whether the consent was recorded in writing and signed, whether an interpreter was present where the occupier does not speak Spanish, and whether the occupier was already under arrest, since consent given by a person in custody requires particular scrutiny.

The scope of the judicial authorisation. Where a warrant existed, its terms limit what was lawful: the property identified, the purpose stated and the persons authorised. A search extended to a neighbouring unit, to a vehicle or to devices not covered, or carried out outside the period authorised, exceeds the warrant. The material seized beyond its scope is excluded, and the defence identifies the excess by comparing the warrant with the seizure record item by item.

Consequences of the breach. The exclusion of unlawfully obtained evidence extends to evidence derived from it, subject to the exceptions the case law recognises. The defence therefore maps the chain from the entry to each item of evidence in the file, including statements made afterwards, and raises the nullity at the earliest procedural stage rather than at trial, since an early ruling may end the proceedings altogether.

• Article 553: entry without judicial authorisation
• Spanish Criminal Procedure Act by article
• Arrest and police custody rights
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.