When the tax authorities, in the exercise of their legally attributed powers, decide to seal a safe deposit box as a precautionary measure, the allegation referring to the violation of the right to privacy recognized in article 18.1 of the Spanish Constitution is relatively frequent.

The aforementioned right, being located in Section One, Chapter II, Title I of the Constitution, is worthy of the protection enjoyed by all fundamental rights, ex art. 53.2 CE, although the Supreme Court, in two recent and interesting rulings, has been concerned with delimiting the scope of this right, both from the perspective of the subject affected by the administrative action, as well as its consideration or not as a constitutionally protected domicile.

As a framework for the two sentences cited, we are placed in the literal meaning of art. 18 CE, which only contemplates the need for a judicial resolution in the case of the right to the inviolability of the home and the right to the secrecy of communications, but not in the other rights recognized therein, such as the one we are now dealing with.

From here on, the first of the cited judgments, issued in cassation appeal 99/2023, and referring to actions to verify the Corporate Tax and Value Added Tax of a legal entity, analyses the impact of a measure of this type from the exclusive perspective of the right to privacy, despite the fact that the admission order also refers to the inviolability of the home (this fundamental right was not questioned in the instance).

The key idea of this ruling is that the recognition of the fundamental right to privacy does not extend to legal persons, something that had already been stated by the Supreme Court in its previous ruling 795/2023, of June 14, and by the Constitutional Court in its ruling 137/1985 and Order 208/2007.  Based on this premise, the allegations made by the entity in the appeal are automatically relegated to the background, as they all derive from the consideration of the commercial entity as the holder of the right to personal and family privacy provided for in art. 18.1 of the CE.

Nor is this a case, the Supreme Court argues, in which the protection of this right is appropriate due to its connection with that of the natural persons who could be affected, since it is not reasonable to expect that the safe deposit box of a legal person contains data on the private lives of individuals, nor has it been proven that this is the case.

In conclusion, from the perspective of the right to privacy, it is not necessary to obtain judicial authorization or consent from the owner to proceed with the sealing of a safe deposit box located in a bank by the AEAT in an inspection procedure, since private legal entities are not directly holders of said right and, therefore, even if information with tax significance may affect the privacy of citizens, such a measure can never affect this fundamental right. It is the parameters of ordinary legality that must measure the adequacy of this administrative action.

The origin of the second of the cited sentences, issued in cassation appeal 4663/2023, is in an appeal filed by two individuals against a sentence issued by the TSJ of the Valencian Community under the procedure of fundamental rights of the person. The procedure in which the seal had been agreed upon corresponded to the verification of the Personal Income Tax of both appellants.

In this case, the compliance with the law of the precautionary measure of sealing a safe deposit box is analyzed, both from the perspective of the right to privacy and from the perspective of the inviolability of the home.

The affected individuals claimed that the precautionary measure of sealing could only be adopted, since it affects both fundamental rights, with the consent of the owner or judicial authorization. This is because, as regards privacy, it prevented them from freely accessing and enjoying what was deposited, and as regards the address, what is relevant is “its destination or use” and not “its location”. In the opinion of the appellants, the consequence of the above would be the need to enter into the proportionality and suitability of the seal adopted.

The Supreme Court begins by defining in this case what is understood by domicile for the purposes of art. 18.2 CE: It is not identified with the civil or administrative sphere, it is broader, a space where the most intimate freedom is exercised. Therefore, a container, such as a safe deposit box rented from a bank, is not a constitutionally protected home as it is not a suitable place, either by nature or by purpose, for developing one's private life. From here, set the following criteria:

1. The fact that it is not a constitutionally protected home does not mean that it cannot house aspects of people's private life or intimacy, which brings us to art. 18.1 CE.

2. The sealing of a safe deposit box can indeed affect the privacy of a natural person, but to a lesser extent, because they are being deprived of access to what is inside. There is no full privacy if one cannot access what is intimate.

3. This infringement of privacy is not a sacrifice that is subject to the reservation of jurisdiction, as may be the case with regard to the domicile or communications, or the opening of a safe deposit box.

4. If this reservation of jurisdiction does not apply, the consent of the depositor, which is its budget, does not apply either.

In short, an ex post control of the precautionary measure of sealing is sufficient, with a requirement of empowerment, in the sense of legal authorization, which exists under art. 146 LGT, and another of application, in the sense of proportionality, suitability and necessity of the measure that the Administration must justify.

The full text of the judgments can be consulted at the following links: STS 03/21/2024 and STS 04/04/2024 .