a.
The values of privacy, intimacy and sociability as grounds for the
protection of the home
14.
The values of privacy and intimacy are the natural basis for any discussion on
the meaning of the inviolability of the home. Thus, the protection of the home, as this is
usually established in national Constitutions, circumscribes a sphere of personal and family
intimacy.
15.
However, it is not possible to speak of privacy and intimacy without also referring
to sociability. The usual references to the home as a “fortress” or “castle” within which
the inhabitants should benefit from a barrier from the outside world, 26 may suggest simple
notions of privacy and intimacy as individual rights. It is true that, as asserted by JeanPaul Demoule, “the home” signifies “the level of autonomy of the group that resides there
in relation to the rest of society.” 27 However, placing emphasis exclusively on the barriers
imposed by the home may neglect its importance as a necessary condition for the
establishment and conservation of the ties between individuals.
16.
To guarantee the protection of privacy and, therefore, the possibility of creating
and maintaining ties, certain legal and social structures are required, including norms that
guarantee the rights of an individual in relation to his home. Ultimately, the home is the
place where these trust-based relationships – which include dimensions of personal
attachment and belonging – typically exists and in which each member of the group that
dwells in the home is in a socially comfortable situation in which they are an active and
valued member. 28 Thus, we underscore that undue intrusion in the home may be
profoundly destructive for the underlying relationship at the specific moment of intimacy
that is interrupted. 29 Such disturbances are capable of eroding the material foundations
that support the previous affective relationships between the individuals that live there
and add to the violation of the sphere of personal liberty and intimacy.
17.
Thus, any disruption of the intimacy of the home represents serious risks for these
extremely important rights: privacy, intimacy and sociability. Arbitrary interference in the
inviolability of the home by the state apparatus is especially serious because it uses
coercive instruments with a high potential impact.
18.
Consequently, it is not surprising that the international instruments for the
protection of human rights have always reflected a concern for the inviolability of the
home. Both the Universal Declaration of Human Rights (Article 12), and the American
Declaration of the Rights and Duties of Man (Article 5) had already established the
inviolability of the home in 1948. This guarantee was replicated in Article 17 of the
International Covenant on Civil and Political Rights (ICCPR) in 1966, in Article 8 of the
European Convention on Human Rights in 1950, and in Article 11 (in relation to Article 17)
of the American Convention in 1969.
19.
The European Court has also recognized that the home is the place where private
and family life is usually carried on, and that people have a right to respect for their home,
conceived not only as the right to the physical space but also as the right to enjoy it
peacefully, so that it should be protected against the entry of unauthorized persons. 30
Similarly, the Inter-American Commission has indicated on several occasions that
interventions of a State’s law enforcement agents in the family locus have violated the
26
Cf. MCCLAIN, L. C. Inviolability and privacy: the castle, the sanctuary, and the body. Yale Journal of Law
& the Humanities, v. 7, n. 1, pp. 195–242, 1995. pp. 201-202.
27
Cf. DEMOULE, J.-P. Qu’est-ce qu’une maison? Rue Decartes, v. 43, n. 1, p. 104, 2004. p. 111.
28
TONER, C. Home and Our Need for It. Journal of Philosophical Research, v. 44, pp. 251–272, 2019. p.
264.
29
GERSTEIN, R. S. Intimacy and Privacy. Ethics, v. 89, n. 1, pp. 76–81, out. 1978, p. 79.
Cf. ECHR. Halabi v. France n. 66554, Judgment of May 16, 2019, §54; and Sabani v. Belgium, n.
53069/15, Judgment of March 8, 2022, §41.
30
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