urgency to enter the home of another, duly justified and protected by reasons de facto
and de iure, in order to avoid the smooth flow of the proceedings and the lawfulness of
the evidence eventually obtained being compromised, and also undue restrictions of the
right.
52.
Consequently, it is necessary to go further proposing an interpretation that
guarantees the inviolability of the home and that, at the same time, establishes clear
parameters that guide the actions of law enforcement agents in exceptional situations. To
this end, Article 11(2) of the Convention should be used as an interpretation standard.
This article establishes the protection of the home from “arbitrary or abusive interference.”
53.
This reveals that a criterion that must obligatorily be observed in the case of the
exception derived from flagrante delicto is the de facto existence of a prior justification
under the law that permits the raiding of a home. This means that the verification of in
flagrante delicto should precede the entry into the home and cannot be justified
subsequently. To the contrary, it would be an arbitrary measure prohibited by the
Convention.
54.
Despite the possibility of prescinding with the judicial control prior to the entry into
someone’s home in this situation, allowing it to take place without a warrant, a rigorous
analysis a posteriori is required by the respective magistrate or judge to verify whether or
not the individual guarantees were violated during the raid specifically examined, 92 as the
Federal Supreme Court of Brazil, for example, has already decided. Subsequent judicial
control is extremely important to examine the reasons that justified the house raid and
whether elements truly existed that indicated the presence of flagrante delicto; in other
words, whether the analysis of proportionality made by the law enforcement agents was
coherent and whether minimum grounds existed for the adoption of the measures that
restricted rights.
55.
More specifically, in relation to the limits to the analysis made by the judge, we can
mention that, for example, unlawful evidence, anonymous complaints, and statements
made by unidentified “informers” cannot be used to undermine the inviolability of the
home, especially during the nighttime, so that the police can raid it in an alleged situation
of flagrante delicto. In such cases, the evidence eventually obtained should be considered
unacceptable, owing to its evident unlawfulness, without prejudice to the possible liability
of the law enforcement agents who took part in the unlawful operation.
56.
This issue should be highlighted in light of crimes of an ongoing nature, where
flagrante delicto extends over time – and in which the understanding adopted regarding
the possibility of a violation of the home without a warrant should be limited to scenarios
in which there is sufficient evidence that a crime has probably been committed; that is,
substantial grounds for the entry into the home to be considered regular and lawful. Only
in those circumstances in which the factual situation before the raid allows it to be
concluded that, beyond any reasonable doubt, criminal acts are being committed in the
home, is it possible to speak of the plausibility and lawfulness of the raid.
57.
In such cases of ongoing offenses, it is usual that house raids occur merely when
information exists (often from an unidentified informer or an anonymous report) that a
specific offense is being committed. Evidently, based on the previous considerations, this
information is not sufficient to suggest the situation of flagrante delicto necessary for
92
In this regard, the Federal Supreme Court of Brazil has recently decided, in light of Article 11(2) of the
American Convention and Article 17(1) of the International Covenant on Civil and Political Rights, that the
absence of judicial control before or after home raids, even in situation of flagrante delicto, removed “the
fundamental core of the guarantee of the inviolability of the home (…) and would cease to protect against
arbitrary interference in the home.” Federal Supreme Court, Special Appeal No. 603.615/RO. Judgment of
November 5, 2015.
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