Article 569 Spanish Criminal Procedure Act: Formalities of a Search of Premises

Article 569 of the Criminal Procedure Act governs how a search must be carried out once it has been authorised. It must take place in the presence of the person concerned or of his lawful representative; failing that, of an adult member of his family; and failing that, of two witnesses who are neighbours. It must always be conducted in the presence of the judicial officer of the court that authorised it, who draws up the record. Breach of these formalities does not affect the authorisation but it affects the evidential value of what was found, which is where the defence works.

Wording of Article 569 of the Spanish Criminal Procedure Act

Requirements and procedure

1. Presence of the person concerned or of his lawful representative, as the primary rule.
2. Failing that, an adult member of the family; failing that, two witnesses who are neighbours of the locality.
3. Presence of the judicial officer of the authorising court, or of the duty service, who draws up the record.
4. A record signed by all those present, describing the result, the step taken and any incidents.

Defence strategy

Absence of the person concerned when he was available. The order of the article is not optional. Where the accused was in custody nearby, or at the police station, and could have been brought to the premises, conducting the search with neighbours instead deprives him of the opportunity to witness what was found and where. The defence establishes his whereabouts at the time from the custody record, and the point goes directly to the weight of the finding.

The judicial officer and the record. The presence of the judicial officer is required in every case, with replacement only in case of necessity and in the statutory manner. A record drawn up afterwards at the police station, a record without the signatures of all those present, or a record that does not describe where each item was found, is contested. In drug and weapons cases this is frequently the decisive point, because the location of the item within the premises is what links it to the accused.

Independence and identity of the witnesses. Where neighbours were used, they must be genuine neighbours of the locality and independent. Officers acting as witnesses, or persons brought by the police, do not satisfy the requirement. The defence identifies them and, where appropriate, calls them at trial, since their recollection rarely matches the detail of the record.

Scope of the search and the certified copy. The search is limited to what the authorisation covers. Material found outside its scope, and examinations of devices conducted at the premises without specific authorisation, are challenged separately. Where nothing was found, the final paragraph entitles the interested party to a certified copy of the record, which should always be requested because it fixes the position for any later proceedings.

• Article 545: inviolability of the home
• Article 553: entry and search without a warrant
• Drug offences: defence service
• 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.