Zoe Verano Rubio
CRIMINAL LAW DIVISION
Article 18 of the Spanish Constitution guarantees the right to honor, personal and family privacy, and one’s own image, and incorporates the inviolability of the home as one of the strongest safeguards against external interference. It provides that no entry or search may take place without the consent of the owner or without a judicial order, except in cases of flagrante delicto.
To understand its scope, it is useful to clarify two aspects: (i) the concept of “home” for constitutional purposes, and (ii) the legal interest protected by the provision.
The Constitutional Court has interpreted the inviolability of the home as a guarantee that protects the private space where a person freely develops their private life, shielding it from any external interference.
Its purpose is not to safeguard the physical property but rather the personal and family sphere projected within it.
The Court also considers the home to be a reserved space where individuals exercise their most personal freedom, free from social conventions, and whose protection extends both to the physical space and to everything that reflects the personality and private life of its occupant. The concept is not limited to the primary residence but encompasses any enclosed place where private life occurs with the intention of excluding third parties. Consequently, Article 18.2 SC protects personal privacy, understood as the reserved sphere of private life where the individual can act freely.
The Supreme Court’s case law has reinforced this interpretation, extending protection not only to physical intrusions but also to observations or surveillance that provide visual access to the protected space using technical means. In the Court’s words, “to interpret that blinds left raised or curtains left open by the resident imply implicit authorization to observe the interior of the property carries the risk of irreparably weakening the substantive content of the right to home inviolability,” thereby rejecting any presumption of tacit consent derived from mere visibility of the interior (Supreme Court Judgment No. 329/2016, of 20 April).
This interpretation becomes especially relevant in the face of new remote surveillance technologies. In this context, Supreme Court Judgment No. 797/2025, of 2 October, analyzes the use of a drone by the police in a gated community during a drug-trafficking investigation. The device was used to locate the suspect’s bungalow, after which a judicial warrant for entry and search was requested.
The defense alleged a violation of Article 18.2 SC, arguing that the overflight amounted to covert surveillance over a private space. However, the Supreme Court rejected this claim, holding that the drone’s flight was limited to common areas classified as “de facto public spaces,” did not record the interior of the home, nor involved continuous surveillance, and that the judicial order was based on prior and independent information.
Nonetheless, this interpretation has been questioned. Although the Supreme Court recognized that the residential complex had a domiciliary nature, it simultaneously characterized it as an area of public transit.
However, the common areas of a residential complex are for the exclusive use of residents and form part of the sphere of privacy protected by the Constitution. The Constitutional Court has reaffirmed this by requiring judicial authorization to install cameras in community garages, considering that these spaces— despite their collective use—belong to the private sphere protected by the Constitution (Constitutional Court Judgment No. 92/2023, of 11 September). Therefore, the capturing of images by drones in gated communities must be subject to the same level of protection, since the shared nature of the space does not remove it from residents’ private sphere.
The Supreme Court’s assertion that the images did not influence the judicial authorization raises doubts from the standpoint of causality, since the use of the drone made it possible to locate the property to be searched, playing a relevant role in the police operation. According to the “fruit of the poisonous tree” doctrine, repeatedly affirmed by the Court itself, any evidence obtained directly or indirectly through an unlawful intrusion into the home must be declared void.
Consequently, although Supreme Court Judgment No. 797/2025 validates the use of the drone by appealing to a formal interpretation of the concept of “public space,” its reasoning risks weakening the fundamental right protected by Article 18.2 SC. The inviolability of the home, as an expression of personal privacy and human dignity, constitutes a barrier against any external interference, physical or technological. Its protection requires that any capturing, observing, or overflying of private spaces be subject to prior judicial oversight.
