On 19 February 2021, the Stuttgart Administrative Court ruled that the large-scale raid in May 2018 at the initial reception centre Ellwangen was unlawful (AZ 1K9602/18). However, the court was of the opinion that bedrooms in refugee accommodation are private homes protected by the Basic Law. The judgement hence falls far short of the mark. The bedrooms in refugee accommodation are private living spaces and as such the right to inviolability of the home applies to them. With the support of the GFF, the plaintiff has appealed against the ruling to the Administrative Court of Baden-Württemberg.
Searches without a court order
On 3 May 2018, a massive police operation took place at the initial reception centre Ellwangen. The rooms of all residents were searched, identity checks were carried out and many residents were handcuffed. The reason was the deportation of a man from Togo, which had failed a few days earlier due to the peaceful resistance of the residents. Between 500 and 600 police officers searched the residents' rooms, including with special units and police dogs. Due to their aggressive approach, 40 unlocked doors of the accommodation were damaged. The police did not produce the necessary warrant for any of the searches.
One of the leaders of the refugees' resistance, Alassa Mfouapon, was taken away from the facility and deported on 20 June 2018. Again, there was no court order to search his room; he was also handcuffed by the police officers so severely that he sustained injuries. In September 2018, Alassa Mfouapon filed a complaint against the police measures before the Stuttgart Administrative Court. The GFF has been supporting the lawsuit since February 2019.
Unlawful police interventions against refugees are not uncommon. In particular, searches of refugee accommodation are often carried out without a judicial search warrant. This is a clear encroachment on the inviolability of the home according to Article 13 of the Basic Law (GG).
The decision of the Stuttgart Administrative Court
On 19 February, the Stuttgart Administrative Court ruled that the large-scale raid at the initial reception centre Ellwangen on 18 May 2018 was unlawful. The court considers the operation disproportionate since it took place at night time. However, the judges are of the opinion that bedrooms in refugee accommodation are not protected private homes within the meaning of Article 13 of the Basic Law. At the time of the raid, according to the court, it was even a dangerous place in the sense of police law. The second police raid on 20 June 2018, on the other hand, was considered by the court to be largely lawful. An appeal against the ruling is pending before the Administrative Court of Baden-Württemberg.
Refugee accommodation as private homes
With its decision, the Administrative Court disregards the protective content of Article 13 of the Basic Law. Rooms in communal refugee accommodation are private homes under Article 13 of the Basic Law and are therefore subject to special protection. The inviolability of the home is a fundamental right that is closely linked to human dignity. The protection of the home also protects the right to a dignified life. The Federal Constitutional Court hence interprets the concept of the home broadly. The protection extends to all rooms in which private life unfolds. Applying these guidelines, specialised courts have already recognised rooms in student dormitories, in a clinic and in accommodation for the homeless as private homes. Various administrative courts and most recently the Higher Administrative Court of Hamburg have also granted the protection of the home to rooms in collective accommodation for refugees.
According to the Baden-Württemberg Police Act (§ 36 BW POLG), private homes may only be searched without a court order in exceptional cases, namely when there is imminent danger. In the case of the operation in Ellwangen, however, it would have been easy to obtain a court order in time. The failed deportation of another resident or the mere suspicion of resistance in the case of deportation does not justify the assumption of imminent danger.
When the plaintiff was deported in June 2018, the required judicial search warrant was missing as well. If the police enter a flat in order to apprehend someone there for the purpose of deportation, this constitutes a search (compare OVG Hamburg, judgement of 18 August2020 - 4 Bf 160/19).
Landmark judgments from Hamburg
In a similar case, the VG Hamburg found a search for the purpose of deportation to be unlawful in March 2019 (VG Hamburg, judgment of 15 February 2019 - 9 K 1669/18 -, juris). Here, an Iraqi couple with three children filed a complaint against the search of their room in a residential container. The search took place in the context of their planned deportation in the early hours of the morning and without a court order.
The reasoning of the VG Hamburg is as follows: Accommodations of refugees are private homes under to Article 13 of the Basic Law. If the police enter them in order to apprehend someone and take them away with the aim of deporting them at a later date, this constitutes a residential search. The VG thus clearly rejected the view of the City of Hamburg that such a police measure is a mere entering of the premises. The ruling of the VG Hamburg has since been confirmed by the OVG Hamburg (OVG Hamburg, ruling of 18 August 2020 - 4 Bf 160/19).
We aim for a landmark judgment against the unlawful deportation practice
The inviolability of the home is one of the fundamental rights enshrined in the constitution. The home should provide a place of retreat for all people. The government may only interfere with this right in exceptional cases. With the current deportation practice, this right is systematically violated. In both Hamburg and Baden-Württemberg, the police continue to believe that the homes of refugees are not protected by fundamental rights. Room searches for the purpose of deportations continue to take place without a search warrant.
This practice has now been legalised: section 58 (5) of the Residence Act stipulates that when the police enter a flat for the purpose of deportation, it is merely a case of "entering". This undermines the protection of the home.
A decision by the highest court is therefore urgently needed in order to put an end to this unlawful deportation practice throughout Germany.