The court has thus put an end to a practice that has long been common in many federal states. But what does this mean in concrete terms?
The case: Man was to be deported to Italy
The case that the court recently ruled on dates back to September 2019. A man from Guinea whose application for asylum had been rejected had been rejected was to be deported to Italy.
When the police appeared outside his room in a temporary accommodation facility in Berlin in the early morning, the officers knocked several times - but nobody opened the door. Although they only heard noises from inside, the police broke down the door with a battering ram and forced their way into the room. There were two men in the room, including the wanted man. However, the officers did not have a court order allowing them to search the room.
The police stated that they had § 58 paragraph 5 AufenthG acted. This paragraph states that the police may enter a room if there are indications that the person they are looking for is there. The police also argued that they had only "entered" the room and not "searched" it. Therefore, a judge's decision was not necessary.
The man found the police's actions unlawful and took legal action against them. At first, the Foreigners' office and several courts rejected his complaint. It was only before the Federal Constitutional Court that he finally won his case.
Ruling: A room is like an apartment - and therefore specially protected
In the ruling, the court clarifies that a room in shared accommodation is like a home within the meaning of the German Basic Law (Article 13 GG). This means that this room is particularly protected. According to the court, this is important because people in accommodation often have no other private space.
The most important points of the judgment:
- If the police do not know for sure whether the person they are looking for is in the room, the intrusion is considered a search.
- The police need a warrant for every search - regardless of whether the officers encounter the person immediately or have to search for them first.
- A court order obtained retrospectively cannot reverse a violation of fundamental rights that has already been committed.
- Only in cases of genuine imminent danger - such as an acute threat - may the police act without a warrant. In the case of planned deportations, however, this is "regularly not the case", according to the court.
Protection of privacy is a fundamental right
The most important idea behind the ruling is that everyone has the right to a private retreat. This is stated in Article 13 of the Basic Law (GG). It states that a home is protected and that a search is only permitted with a warrant.
The judges argue:
- The protection of the home applies to all people, regardless of their residence status or where they come from.
- Even a small room in accommodation is an apartment because it is the only personal retreat for the occupants.
- If authorities intervene in this area without judicial control, this fundamental right becomes almost worthless. Therefore, a court order is always necessary, according to the court.
What does this mean for Section 58 (5) AufenthG?
The ruling has major implications for the way in which deportations may be carried out. The provision introduced in the Residence Act in 2019 (Section 58 (5) Residence Act) actually states that the police may enter a room without a warrant. However, the new ruling renders this rule almost entirely meaningless.
The constitutional judges say quite clearly: If it is not clear that the person being searched is actually in the room, then entering the room is considered a search - regardless of the wording in the law.
This means that the police are almost never allowed to enter a room without a warrant. This is only permitted in very few cases, for example if the officers have clearly seen the wanted person in the room shortly beforehand.
The stricter rules from the Repatriation Improvement Act of 2024 are also coming under pressure as a result of the ruling. This law allowed the police to even enter other residents' rooms in shared accommodation. However, the new ruling could also make this unconstitutional
Conclusion: What does the ruling mean in concrete terms for those affected?
The decision strengthens the rights of people in refugee accommodation.
More legal certainty: The police may only enter rooms/apartments with a court order if they do not know with certainty where the person they are looking for is.
Clear protection of privacy: Even small rooms in accommodation are considered homes - with the same basic rights as any private home.
Use legal remedies: If someone is affected by an unlawful measure, they can claim that the police have violated Article 13 of the Basic Law without a court order.
With this decision, the Federal Constitutional Court sets clear limits: Fundamental rights - in particular the protection of privacy - must also be fully respected during deportations.
