Definition of the term and constitutional anchoring
The inviolability of the home is a fundamental right enshrined in the Basic Law of the Federal Republic of Germany as well as in numerous other legal systems. It protects the private home as a particularly sensitive area for retreat and living from state intervention. Its aim is to preserve and protect the private and intimate sphere from infringement by the state and – within the scope of civil law – also from private infringements.
Constitutional foundations in Germany
The Basic Law establishes the inviolability of the home in Article 13 GG. There, the first paragraph states: “The home is inviolable.” This protection is closely linked to the general right of personality and human dignity. The fundamental right protects especially against entry, search, and surveillance of the dwelling by state authorities. The provision contains exceptions in the following paragraphs, particularly for averting danger and criminal prosecution.
Scope of protection
The scope of protection of the fundamental right encompasses all premises that serve as a home for people. This includes not only traditional living spaces such as rented apartments and detached houses, but for example also hotel rooms, motorhomes, hospital rooms, or work-related living spaces, insofar as they serve private life. Areas and spaces accessible to the public without a private use character, such as business premises, are not protected if there is no residential purpose.
Personal scope of protection
Natural persons as holders of fundamental rights are entitled to protection. Legal persons under private law can likewise invoke the protection of Art. 13 GG if they possess a home.
Material scope of protection
The material scope of protection includes the prohibition of state measures interfering with the inviolability, in particular entering, searching, or monitoring the home against or without the will of the occupant. This also covers eavesdropping, taking images, and installing surveillance devices.
Statutory exceptions and reservations of intervention
The fundamental right to the inviolability of the home is not without limits. The legislator may permit interventions by ordinary laws, provided this is expressly allowed by the Basic Law.
Requirements and procedure for an intervention
- Judicial reservation: According to Art. 13(2) GG, searches may generally only be ordered by a judge, and in cases of imminent danger, also by the public prosecutor’s office and their assistants.
- Averting danger and criminal prosecution: Art. 13(7) GG permits searches to avert danger when there is an imminent danger to public safety or order.
- Technical surveillance: The use of technical means to eavesdrop on or observe the home is governed by Art. 13(3-6) GG. Strict conditions apply here, especially for the prosecution of serious crimes.
Intensity of intervention and proportionality
Every intervention must be measured against the principles of proportionality, particularly suitability, necessity, and appropriateness. Especially stringent requirements apply to covert measures, such as so-called ‘covert residential surveillance’ or the use of listening devices.
Inviolability of the home under ordinary law
In addition to the Basic Law, numerous ordinary statutory provisions govern the requirements and procedures for interventions into the inviolability of the home:
Code of Criminal Procedure (StPO)
According to §§ 102 ff. StPO, searches of dwellings to avert danger and to investigate criminal offences are permissible under clear statutory conditions and subject to judicial authorization. Covert surveillance measures are specifically regulated in § 100c StPO.
State police laws
At the state level, the police laws govern the requirements for entering and searching homes to avert danger. There is generally a graduated system of requirements, including procedures for ordering and executing such measures.
Protective effect against non-state actors
Defensive rights under private law and protection of possession
Civil law also recognizes legal positions derived from the inviolability of the home. The right to undisturbed possession enables occupants to exclude third parties from entering. Legal bases for this include §§ 858 ff., 903 BGB (protection of possession, ownership), as well as §§ 535 ff. BGB and regulations concerning the landlord’s right of entry in tenancy relationships.
Prohibited self-help
Unauthorized entry constitutes an interference with possession, against which civil law claims for injunction and removal may be asserted. In severe cases, the elements of trespass (§ 123 StGB) or other protective provisions may apply.
Significance and distinctions
Distinction from neighboring legal interests
The inviolability of the home must be distinguished from the general right of personality, the right to an established and operated business, and the protection of property. It is an independent fundamental right, but complements and overlaps with other protected legal interests.
Practical relevance
The inviolability of the home is of particular practical importance for protection against state measures, for the relationship between tenants and landlords, and for general coexistence. It is a central element of the liberal constitutional order and the protection of privacy.
International references
European Convention on Human Rights
Article 8 of the European Convention on Human Rights also guarantees the protection of the home. Here, protection is provided against interventions by public authorities, which is comparable to the interference with fundamental rights under German law.
Other bases under international law
Numerous international treaties, especially at the United Nations level, recognize similar areas of protection and oblige contracting states to safeguard the right to privacy.
References for further reading
- Jarass/Pieroth, Basic Law for the Federal Republic of Germany
- Maunz/Dürig, Commentary on the Basic Law
- Dürig-Herzog, Commentary on Fundamental Rights
Summary: The inviolability of the home is a comprehensively protected fundamental right, firmly anchored in both German constitutional law and international legal orders. State and private interventions are subject to strict legal limitations and serve to protect individual living space and privacy. The legal provisions in the Basic Law and in ordinary law ensure effective protection of this legal interest.
Frequently asked questions
When and under what conditions may the police enter a dwelling without the occupant’s consent?
Entering and searching a dwelling by the police without the express consent of the occupant constitutes a serious infringement of the fundamental right to the inviolability of the home under Article 13 of the Basic Law (GG). As a general rule, entry by state authorities, in particular the police, is only permitted with a judicial order (“search warrant”), which must be obtained in advance. Exceptions exist only in cases of ‘imminent danger’, meaning when a court decision cannot be obtained in time and waiting would defeat the purpose of the measure—for example, to avert an imminent danger to life, limb, or significant legal interests. The police laws of the federal states also contain specific provisions allowing entry in the context of averting danger, but these are always subject to strict requirements and the principle of proportionality. In criminal proceedings, the authorization to intervene is governed by §§ 102 ff. Code of Criminal Procedure (StPO), which require both suspicion of an offence and a specific purpose for the search. Outside of criminal investigations and in cases of regulatory offences, much more restrictive standards apply, so police measures without judicial order remain an absolute exception and must be specially justified.
What rights does the occupant have during a search of their home?
Affected occupants have various defensive and participation rights during a search of their home. They have the right to demand to see the judicial search warrant and to have it handed over to them. If a search is exceptionally permitted without a warrant due to ‘imminent danger’, the reason for the danger and the identity of the searching officers must be disclosed. The occupant is also entitled to be present during the search and, if this does not jeopardize or delay the purpose, to involve a person of trust. Furthermore, there is a right to the preparation of a search protocol documenting all actions and any objects seized. After the fact, those affected may challenge the legality of the search by lodging a complaint (§ 304 StPO) or a supervisory complaint.
Are there constitutionally protected exceptions for certain rooms or groups of persons?
The fundamental right from Art. 13 GG in principle protects all dwellings, regardless of ownership, tenant status, or use—including ancillary rooms, hotel rooms, or caravans, as long as they objectively serve the permanent residence of persons. Certain rooms, such as lawyers’, doctors’, or notaries’ offices, have special protection regarding the right to refuse testimony and confidentiality of mandates (§§ 53, 97 StPO). Searches of such professional confidentiality holders’ premises are subject to additional procedural hurdles. Likewise, members of the Bundestag enjoy increased protection of their offices under Art. 46 GG. Thus, certain groups or professions may, depending on function and activity, enjoy greater protection or special procedural requirements during searches of their dwellings or business premises.
How does the inviolability of the home relate to measures for averting danger and infection control?
Even in the area of averting danger—for example, to protect public safety and order—the inviolability of the home remains a fundamental principle. In cases of imminent danger to life, health, or significant community interests, entry and search may also be justified without judicial order. In the context of the Infection Protection Act (IfSG), authorities have the right to enter dwellings for inspections, quarantine measures, or to investigate sources of infection. In each case, a sufficiently concrete danger is required, and interventions must be appropriate and proportionate. The fundamental constitutional protection remains in force; state measures always require special and statutory justification.
To what extent is the inviolability of the home relevant in tenancy law?
In the relationship between tenant and landlord, the inviolability of the home protects against unauthorized entry by the landlord. As a rule, a landlord may not enter or gain access to the dwelling on their own authority, not even in supposed emergencies such as minor repairs or out of mere curiosity. There is only a right of access in exceptional cases, for example, if there are justified suspicions of danger to the rental property (such as water damage), on final inspection, or for announced repairs—but always with a previously arranged appointment and with reasonable advance notice. In the event of disputes about the right of access, the tenant may under certain circumstances even report the landlord for trespass (§ 123 StGB) in the case of unauthorized entry.
What legal consequences may result from violating the fundamental right to the inviolability of the home?
An unlawful infringement of the inviolability of the home may have both civil and criminal consequences. The person concerned can assert claims for injunctive relief and compensation for damages against the infringer (§§ 823 ff. BGB), for example in the case of official actions without legal basis or unauthorized entry by private individuals. From a criminal perspective, unauthorized intrusion into a dwelling is generally considered trespass (§ 123 StGB); even officials must act within the scope of their authority, otherwise they may face disciplinary action or official liability claims. In administrative court proceedings, courts may review police or administrative measures for legality and, if necessary, declare unlawful searches or entries inadmissible.
How is evidence obtained during an unlawful search of a home treated?
The use of evidence obtained during an unlawful search of a home is a controversial subject, especially in criminal proceedings. According to the case law of the Federal Constitutional Court and the Federal Court of Justice, such evidence may in principle be subject to an exclusionary rule, especially if there are serious procedural breaches or the fundamental right to the inviolability of the home has been gravely violated. However, the courts decide on the admissibility based on a balancing of interests, considering, in particular, the purpose of the prohibition, the seriousness of the error, and the public interest in prosecution. There is rarely an absolute exclusion of evidence under German law, but the inviolability of the home plays a significant role in limiting state action.
