Article 18.2 of the Constitution states that "the domicile is inviolable. No entry or registration may be made without the consent of the owner or judicial decision, except in the case of flagrante delicto".

The Constitutional Court recognized that this right is predictable with respect to both natural persons and legal persons (STC 69/1999), a line also followed by the Supreme Court, since in the offices of legal persons "their internal activities are developed, either because they exercise the usual management and administration of the company, or because they serve as custodians of documents or other supports of the daily life of the company or its establishment and all this regardless of whether it is the domicile”.

However, this right languishes, weakens and even becomes something merely formal and irrelevant when the sacrosanct duty to contribute provided for in Article 31 of the Constitution comes into play, and the Tax Inspectorate considers it necessary to enter the domicile without prior notification of the commencement of inspection proceedings, and without the need for the holder's consent, which has legal coverage in Article 113 of the General Tax Law, provided that it is legally bound and have contentious-administrative jurisdiction.

In the forefront, constitutional law is protected because the Tax Inspectorate cannot access constitutionally protected domiciles if it does not have the consent of the holder or, failing that, judicial authorization. The Court of Justice can only authorise entry "after having weighed the various rights and interests that may be affected and taking the necessary precautions to ensure that the limitation of the fundamental right implied by it is carried out in the least restrictive manner possible" (STC 139/2004, of 13 September).

The judge, in restricting this right, must "make the judgment of weighting between the fundamental right affected and the constitutionally protected interest by means of the adequacy, necessity and proportionality of the measure, accompanied by the necessary temporal delimitation of the entry with respect to the subjects that will be able to practice it and the activities that will be able to be carried out" (STS 9 of October 2009), without the judicial authority being able to act with a formal guarrantee that leaves its function of guaranteeing the fundamental right unprotected, since it is configured as guarantor of the domicile in such a way that there are no more limitations on the right that will be achieved by art.18.2 EC than those strictly necessary for the implementation of the act, verifying that entry is the only possible means of achieving the intended purpose (AATC 258/1990 of 18 June and 198/1991 of 1 July).

The judge must also make a judgment as to the proportionality of the measure. And "among the aspects that must support proportionality", affirms the STS of 9 October 2009,"is to indicate the temporal aspects of entry, which cannot remain at the unilateral discretion of the administrative bodies, as well as the adoption of the necessary precautions so that the limitation of the fundamental right is the least restrictive, not resulting in a disproportionate act".

Finally, the jurisprudence of the European Court of Human Rights (ECHR) since cases such as Chappel and Niemietz (judgment of 30 March 1989 and 16 December 1992, among others) requires the imposition of safeguards and precautions to avoid arbitrary behaviour, limiting the duration and time of entry, the number of persons to be granted access, with the European Court itself insisting that any entry must be granted with the right of appeal.

In short, we find ourselves with a fundamental right which, in view of the pronouncements of both the Constitutional Court and the Supreme Court, and even the European Court of Human Rights, has full effect, and any limitation requires a clear justification from the acting Administration, which is subject to judicial control.

Then why do we wonder if it's a slightly watered-down right? Because when the Tax Agency appears in the arena with the flag of Article 31 of the Constitution, i.e. the obligation to contribute, the right to inviolability of the domicile is relativized in practice, in some cases becoming a mere formality. In fact, it is becoming increasingly frequent for companies to enter the tax office without prior notification of the commencement of inspections, in which inspectors show taxpayers the court order authorising them not only to enter but also to take away any documentation or computer support that may have tax implications. So far, that is all well and good, because judicial authorisation is available to restrict the fundamental right. Then where's the problem? In the way this authorization is obtained, since it generates helplessness from the taxpayers.

In many courts, it is considered sufficient that the Tax Agency justifies that the company to be "visited" is included in the plan, which qualifies as an enabling administrative act that excludes the de facto route, and that in the request for authorization is described, basically, that it is a risky sector, that the taxpayer in question presents certain ratios that are below the average of both the national sector and autonomous region, statistical data extracted by the Inspection. In addition, it is requested that the measure be granted in part un-audited, i.e. without giving the taxpayer a hearing, and therefore it does not have the possibility of deciding whether the measure is appropriate. In this way, with a report "cooked" internally by the Tax Inspectorate, and without sufficiently justifying its contents, it is frequent that the Court authorizes, in a very broad manner, the entry into the constitutionally protected domicile. And this authorization covers the entry of several inspectors, computer scientists and other personnel who consider the inspection itself necessary, without their number being limited in the court order. They are also authorised to make copies of everything they consider having tax significance, which, de facto, means that the measure is unlimited regarding both personal means and the object of the same.

We began the present commentary by asking ourselves whether this is a watered-down right, and in our opinion the answer must be yes, not in its theoretical conception but in its practical application, which would oblige a rethinking of the problem that reconciles this right and the actions of the Tax Inspectorate that, let us not forget, works for the common good. And this rethinking could require a greater effort from the Tax Inspectorate to prove the evidence that could justify the measure, and to give a hearing to the right holder except in very justified cases of real risk of destruction of documentation, a risk that, given the exceptionality of the measure, should be documented by the Inspectorate, which has the means, with much more rigour.

For further information, please contact:

Enrique Vázquez Alcover

enrique.vazquez@AndersenTaxLegal.es