Analysis by the High Court of Justice of Madrid (TSJM) on the “Door-Kicking” Entry During COVID (State of Alarm)

FLAGRANT CRIME:

Article 18.2 of the Spanish Constitution establishes that the home is inviolable, except in cases of a flagrant crime. This constitutional provision is developed in the Criminal Procedure Act (LECrim), particularly regarding crime investigation, the identification of perpetrators, and the determination of the circumstances.

According to Article 545 of the LECrim: “No one may enter the home of a Spanish citizen or a foreign resident in Spain without their consent, except in the cases and forms expressly provided for by law.” In the context of home searches by the State Security Forces, Article 553 authorizes agents to “proceed on their own authority to the immediate arrest of persons caught in the act of committing a crime, whatever the place or home where they may be hiding or taking refuge.” Thus, in line with the Constitution, entry into a home without the resident’s consent or judicial authorization is lawful only when the perpetrators are caught in flagrante delicto.

The core issue lies in defining the scope of flagrancy that justifies forced entry by law enforcement. Article 15.2 of the Organic Law on the Protection of Public Security establishes that “legitimate grounds for entering a home include the need to prevent imminent and serious harm to persons or property, in cases of catastrophe, calamity, imminent ruin, or similar situations of extreme and urgent necessity.”

Furthermore, Article 795.1.1ª of the LECrim, which regulates expedited proceedings, defines flagrancy in line with Supreme Court judgment 441/2017 of 8 February:

a) Immediacy of the act: the offender must be caught at the time of committing the crime or immediately afterward.

b) Personal immediacy: there must be direct evidence linking the suspect to the crime.

c) Urgency of police intervention: the intervention must be urgent to prevent further criminal conduct.

Once the definition of flagrancy is established, it must be related to the crime of serious disobedience, regulated in Article 556.1 of the Criminal Code, which punishes those who “seriously disobey authority or its agents in the exercise of their functions.” For disobedience to exist, a personal and direct order must have been given to the suspect requiring them to change their conduct.

In the case of refusal to identify oneself during a breach of health regulations, particularly when the person is not physically present before the officer, it is unlikely that the crime of disobedience applies. Even if such disobedience could be proven, the inviolability of the home would prevail, and flagrancy would not justify forced entry. Thus, refusal to identify oneself is not sufficient to override the constitutional protection of the home.

FACTUAL BACKGROUND:

In March 2021, during the COVID-19 pandemic, fourteen young people held a party in violation of restrictions. After complaints from neighbors, police arrived and forcibly entered the apartment with a battering ram, without a court order.

Although holding the party breached regulations, this was an administrative offense, not a criminal one. Criminal offenses against public health under the Criminal Code include drug trafficking, doping, pharmaceuticals, food crimes, and water contamination, but not breaches of COVID restrictions.

Article 18.2 of the Constitution clearly establishes: “The home is inviolable. No entry or search may take place without the resident’s consent or a court order, except in cases of a flagrant crime.” This fundamental right protects privacy and security in private spaces.

Refusing to open the door to police officers without a court order falls within this right. Accepting the police argument that such refusal amounts to disobedience would undermine the very purpose of judicial warrants, effectively replacing judicial oversight with police discretion.

The Constitutional Court has also clarified that the concept of “home” covers not only permanent residences but also temporary spaces such as hotel rooms and tourist apartments, provided they are used privately and exclude third parties.

Therefore, since no flagrant crime existed, the forced entry could amount to trespassing (unlawful entry), and the detention of those present—given it was only an administrative breach—could amount to unlawful detention.

The young people detained requested habeas corpus, but the duty judge dismissed it, justifying the police action despite acknowledging it concerned only an administrative offense. In doing so, the judge inadvertently described two possible crimes: unlawful entry and unlawful detention.

HIGH COURT OF JUSTICE OF MADRID (TSJM):

In ruling 291/2024 of 16 July 2024, the Civil and Criminal Chamber of the TSJM (Judges María José Rodríguez, Matías Madrigal, and María Teresa Chacón) issued a partially favorable ruling to the tenants, concluding that the entry lacked legal grounds since it was carried out without consent or judicial authorization.

The case arose from the events of 21 March 2021, when six National Police officers forcibly entered a flat in Madrid’s Lagasca Street during a COVID party with fourteen attendees.

The TSJM confirmed that the entry was not urgent to prevent a crime but merely to stop noise, which was an administrative violation, not a crime. The court emphasized that the home is inviolable and can only be accessed with judicial authorization, the occupant’s consent, in flagrante delicto, or in urgent situations of imminent risk to life or physical safety. None applied here.

Nonetheless, the TSJM upheld the police officers’ acquittal, ruling that the chief officer acted under a vincible error (a mistake of law or fact that could have been avoided with due diligence), while the second officer acted under an invincible error (unavoidable even with due diligence, as he merely followed orders).

CONCLUSION:

Article 18.2 of the Spanish Constitution protects the home as inviolable, with very limited exceptions. Forced entry during the March 2021 COVID party did not meet the legal conditions of flagrancy. The TSJM held that refusal to identify oneself or breaching health regulations could not justify violating this constitutional right.

Although the police action lacked legal grounds, the officers were acquitted on the basis of error in judgment. This case highlights the strict constitutional and legal limits on police entry into private homes and reaffirms that administrative violations do not justify bypassing judicial authorization.

‍