that should be interpreted within its intrinsic semantic limits, and the substantive
viewpoint, with strict respect for the principle of proportionality and its components
(suitability, necessity and proportionality stricto sensu). It is the legislator’s task to
establish categorically the prohibition of nighttime raids and to clearly define the restricted
exceptions to this prohibition, and it is for the judge, in turn, to interpret strictly the
authorizing law, granting or rejecting the measure in light of its suitability, necessity and
proportionality stricto sensu, indicating the reasons that prevent the procedure from being
conducted outside nighttime hours.
48.
As a result of the scenarios analyzed above, it is important to define the specific
situations that would justify the exceptionality of the inviolability of the home, in relation
to the analysis of the proportionality of the measure, particularly during the night, which
is what is claimed in this case. In other words, once it has been verified that there is a
need to establish expressly in domestic law the prohibition of nighttime raids, and having
verified the non-conformity with the Convention of such measures, it is necessary to
establish the exceptions to this prohibition, so that they are also expressly established by
law.
49.
Consequently, the possibility of entering a home without a court order is an express
exception to the general rule in the case of flagrante delicto, as established in the laws of
Bolivia examined above, and also in those of countries such as Portugal, Spain, Paraguay
and Brazil:
Constitution of Portugal: Article 34: Inviolability of the home
1. The home and the privacy of correspondence and other means of private
communication are inviolable.
2. The entry into the home of citizens against their will may only be ordered by the
competent judicial authority in the cases and in the way established by law.
3. No one may enter the home of anyone, with or without their consent, during the
night, except in a situation of flagrante delicto or with a court order in the case of
especially violent or highly organized crime, including terrorism or people-, arms-, or
drug-trafficking, in the terms set forth in the law.
Constitution of Spain: article 18:
2. The home is inviolable. It cannot be entered or searched without the consent of the
owner or a court order, except in cases of flagrante delicto.
Constitution of Paraguay: article 34:
Any private area is inviolable. It may only be raided or closed by order of the court
and subject to the law. Exceptionally, it may be raided, also, in case of flagrante delicto
or to prevent its imminent perpetration, or to avoid harm to people or property.
Constitution of Brazil: article 5:
XI. The home is an inviolable refuge for the individual and no one may enter it without
the consent of the inhabitant except in case of flagrante delicto or catastrophe, or to
provide assistance or, during the day, by a court order.
50.
However, the issue of flagrante delicto, which is expressly established in numerous
domestic laws, acquires special relevance in light of the need to establish parameters that
go beyond the lawfulness of the measure. In other words, police agents cannot be allowed
to enter the homes of third parties based on the simple allegation that there is information
that a crime is underway, in supposed compliance with the legal provision, because this
would weaken and undermine the guarantee of the inviolability of the home that we are
examining.
51.
Accordingly, the right to the inviolability of the home, given its importance and
protagonism, can only be breached when the flagrante delicto reveals the legitimate
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