authorizing the intervention in the fundamental right be interpreted and applied rigorously,
especially in the case of an exception to a prohibition, as in the case of nighttime house
raids. As in substantive criminal law, the prohibition of the analogy remains intact. 81
42.
Neither the judge nor the law enforcement agents are granted discretionality to
instigate an intervention in the fundamental rights outside the scenarios demarcated by
the semantic limits of the authorizing law. In this specific case, as already mentioned and
correctly identified in the judgment there was a patent failure to respect the authorizing
law when the raids were conducted subsequent to the situation of flagrante delicto. 82
43.
In addition to being justified from a formal point of view, in light of the principle of
legal reserve, a coercive measure such as a house raid (during the night), which supposes
a restriction of a fundamental right, must have a substantive justification. This should be
verified in keeping with the principle of proportionality. Further explanations are
unnecessary concerning this principle, widely recognized by doctrine and the international
courts. 83 Sufficient to say that, according to this principle, once the sphere of protection
of any specific fundamental right has been breached, the State intervention will be
proportionate if it complies with the following criteria or steps: suitability, necessity and
strict proportionality. The measure taken by the State will be suitable if it is appropriate
to achieve a constitutionally legitimate purpose, and necessary if there is no other measure
that is as effective as the one adopted to achieve the aim pursued and that is less
restrictive of the fundamental right involved. In addition to these criteria, according to the
strict notion of proportionality – also known as “the prohibition of excess,” a translation of
the German expression (Übermaßverbot) – it is necessary to consider whether, despite
the suitability and necessity of the measure, it has too great an impact on the fundamental
right concerned in relation to the importance of achieving the purpose sought. At this last
stage of the analysis, it is necessary to weigh the antagonistic rights and interests
involved. 84 This examination of proportionality has been adopted by the Court, for
example, in Wong Ho Wing et al. v. Peru (2018), which refers to the issue of arbitrary
detentions:
[N]otwithstanding the lawfulness of a detention, in each case an analysis must be made of
the law’s compatibility with the Convention, in the understanding that the law and its
application must respect the following requirements to ensure that the deprivation of liberty
is not arbitrary: (i) that the purpose of the measures that deprive or restrict liberty are
compatible with the Convention; (ii) that the measures adopted are appropriate to achieve
the purpose sought; (iii) that they are necessary, in the sense that they are absolutely
essential to achieve the purpose sought and that there is no less onerous measure, with
regard to the right affected, among all those with the same ability to achieve the proposed
purpose - which is why the Court has asserted that the right to personal liberty presumes
that any restriction of this right must be exceptional and (iv) that the measures are strictly
proportionate, so that the sacrifice inherent in the restriction of the right to liberty is not
exaggerated or excessive in relation to the advantages obtained from its restriction and
achievement of the purpose sought.
81
602.
Cf. KUDLICH, Hans, in Münchener Kommentar zur StPO, 1st ed., C.H. Beck: Munich, 2014, Einleitung Nm.
82
Regarding the concept of flagrante delicto for the purposes of house raids, cf. CABEZUDO BAJO, op. cit.,
pp. 261 ff.
83
Inter alia SCHLINK, Bernhard. Proportionality in Constitutional Law: why everywhere but here? Duke
Journal of Comparative & International Law, vol. 22, 2012, pp. 291 ff; BARAK, op. cit., pp. 131 ff; BERNAL
PULIDO, Carlos. The Migration of Proportionality across Europe, New Zealand Journal of public and international
law, vol. 11, 2013, pp. 483 ff.; ALEXY, Robert. Proportionality and Rationality, in JACKSON; TUSHNET (org.),
Proportionality: New Frontiers, New Challenges, Cambridge, 2017, pp. 13 ff.; GREENE, Jamal. Rights as Trumps?
Harvard Law Review, vol. 132, 2018, pp. 28, 56 ff.; POSCHER, Ralf. Proportionality and the Bindingness of
Fundamental Rights, in: BILLIS/KNUST/PETTER RUI (org.), Proportionality in Crime Control and Criminal Justice,
Hart Publishing: Oxford, 2021, pp. 49, 51 ff.
84
ALEXY, op. cit., pp. 14 ff.; KINGREEN; POSCHER, op. cit., pp. 101 ff.
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