Nobody is waiting for someone from the government to show up unexpectedly on your doorstep and want to enter your home. It is important to know that you do not have to give permission. Respect for private life and privacy is a fundamental right, enshrined in the Constitution and the European Convention on Human Rights, which cannot simply be restricted. The circumstances under which entry may be made are therefore laid down by law, although the question of whether an entry was lawful still regularly remains fodder for debate in court.

Not only investigating officers, such as the police or the FIOD, may have the power to enter. Others may also have this power, such as (tax) bailiffs and supervisors charged with complying with legal regulations, such as the labour inspectorate. Another possibility is for someone who has been authorised by the mayor to enter. This may be the case in an emergency situation or in the case of violation of certain General Local Bye-Laws (APVs). The person who wants to enter the house is obliged to identify himself and report the purpose of the entry. Never let anyone in who cannot.

However, even if these obligations are met, the basic principle is that entry may only be made by someone who has been granted a legal authority to do so. Permission to enter must have been given by an occupant who sufficiently understands the situation, and small children are not easily capable of adequate will formation. If one resident gives consent but the other expressly objects, the latter counts. According to case law, if someone says they are a resident but in fact are not, investigating officers may assume this. Afterwards, it must be verifiable that consent was given, for example on the basis of an official report.

If consent is lacking, an authorisation is required. Depending on the purpose of intrusion, only a few bodies are authorised to grant an authorisation to enter, namely the advocate-general at the district attorney's office, the (assistant) public prosecutor and the mayor (for purposes other than criminal procedure). If there is only an authorisation to enter, only searching searches are allowed. Although searching around is not limited to what is in sight, this does mean that closed cupboards or drawers, for instance, may not be opened in principle. It will have to be assessed on a case-by-case basis whether the requirements of entry and/or search have been met. In urgent situations, entry can take place without prior authorisation, but there must be a red-handed discovery or suspicion of a crime for which pre-trial detention is permitted. But even if the search yielded incriminating material, the question remains whether there was actually a ground for entry and search and whether there was an urgent necessity that made it impossible to wait for certain authorisations.

If it turns out in retrospect that an entry into a residence was unlawful, for example because there was no reasonable suspicion of guilt and a warrant should not have been issued, this leads - depending on the seriousness of the breach of form - to exclusion of evidence in many cases. In both administrative and criminal law, the judge can attach far-reaching consequences to this, which in some cases can include an acquittal. With this, the court therefore wants to send a signal for future cases that investigating officers do not enter and search homes lightly. Not least because the right to privacy is one of the most important fundamental rights.

Mr. D.M. Penn