Expulsion

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The eviction or eviction is a police measure in German law to avert a danger to public safety or order . It thus serves to avert danger . This oral or written administrative act requires the person concerned to temporarily leave a location or not to enter it temporarily. In the event of a violation, the person can also be taken into police custody. If the expulsion is unlawful, the person concerned can counter this by means of legal remedies .

Duration

A dismissal is a temporary police measure. There is no general upper time limit for a dismissal, but the duration is limited in the sense of the principle of proportionality to the persistence of the danger that led to the dismissal.

Similar measures

If the order is to apply for a longer period of time, however, there is talk of a residence ban , which a municipality can also impose (in Bavaria : on the basis of Article 7 of the State Penal and Ordinance Act; in Hesse : Section 31 (3) HSOG). The stay ban relates to a spatially wider area than the eviction, which includes a narrow area. Also to be separated from the eviction are evictions that always refer to apartments . The evictions are usually closely linked to the Protection Against Violence Act and only restrict the right to property under Article 14 of the Basic Law (possibly the right to freedom of movement according to Article 11 of the Basic Law).

Restriction of fundamental rights

According to the prevailing opinion, the measure of dismissal does not encroach on the area of ​​protection of Article 11 of the Basic Law (freedom of movement, "freedom of movement") or that of Article 2, Paragraph 2, Clause 2 of the Basic Law (" freedom of movement"), but merely interferes with the general freedom of action according to Art. 2 Abs. 1 GG.

This is also stated in the justification for the amendment to the police law in November 2008 by the Baden-Württemberg Ministry of the Interior . Here, in the Landtag printed matter on the newly introduced eviction as a standard police measure according to § 27a PolG BW, it is stated that there is only an interference with Article 2 (1) of the Basic Law. This view is reinforced by the arguments of the VGH Baden-Württemberg . The VGH regarding a general dismissal (entry and residence ban) against members of the punk scene stated that there was an interference with the general freedom of action under Article 2, Paragraph 1 of the Basic Law. Further encroachments on fundamental rights were not discussed.

In contrast, the view of the Federal Constitutional Court and the VGH Mannheim see an interference in both Article 2, Paragraph 2, Sentence 2, and Article 11 of the Basic Law.

Legal basis

The expulsion is a standard measure and is therefore standardized in the individual state police laws. References to addressees who disrupt official acts of the law enforcement authorities can also be based on Section 164 StPO (at least as a minor measure of arrest).

  • The state regulations are:
    • Baden-Württemberg : Section 27a, Paragraph 1 of the Police Act (PolG)
    • Bavaria : Art. 16 Act on the tasks and powers of the Bavarian State Police (Police Task Act, PAG)
    • Berlin : Section 29 (1) General Law for the Protection of Public Safety and Order in Berlin (General Safety and Order Act, ASOG Bln)
    • Brandenburg : § 16 Law on the tasks, powers, organization and competence of the police in the state of Brandenburg (Brandenburg Police Act, BbgPolG)
    • Bremen : Section 14 (1) of the Bremen Police Act (BremPolG)
    • Hamburg : § 12a Law for the Protection of Public Safety and Order (SOG)
    • Hesse : § 31 Hessian law on public safety and order (HSOG)
    • Mecklenburg-Western Pomerania : Section 52 Law on Public Safety and Order in Mecklenburg-Western Pomerania (Security and Order Act, SOG MV)
    • Lower Saxony : Section 17 (1) Lower Saxony Law on Public Safety and Order (Nds.SOG)
    • North Rhine-Westphalia : § 34 Police Act of the State of North Rhine-Westphalia (PolG NRW)
    • Rhineland-Palatinate : Section 13 Police and Regulatory Authority Act (POG)
    • Saarland : § 12 Saarland Police Act (SPolG)
    • Saxony : Section 21 (1) of the Police Act of the Free State of Saxony (SächsPolG)
    • Saxony-Anhalt : Section 36 (1) Law on Public Safety and Order of the State of Saxony-Anhalt (SOG LSA)
    • Schleswig-Holstein : Section 201 General Administrative Law for the State of Schleswig-Holstein (State Administrative Law, LVwG)
    • Thuringia : Section 18 of the Thuringian Law on the Duties and Powers of the Police (Police Task Act, PAG) in conjunction with Section 17 of the Thuringian Law on the Duties and Powers of the Regulatory Authorities (Regulatory Authorities Act, OBG)

Character of the measure

If the disturbance originates from a person or if there is a risk that a person creates a dangerous situation, they can be expelled from the place for a period of up to 24 hours. The prerequisites for intervention are therefore low compared to other measures. Since the referral takes place through an order or prohibition, it is not a real act , but an administrative act . In case of doubt, the eviction can also take place by detention . Immediate compulsion is also legally possible for enforcement . Every dismissal includes a restriction of freedom .

Under constitutional law, the expulsion does not meet with legal concerns . If the eviction turns into a residence ban, however, there is disagreement as to whether the state legislators even have the regulatory competence, since according to the competency regulations of the Basic Law, only the federal legislature is authorized to determine the legal limits of Art. 11 GG. Above all, however, evictions and residence bans may only be based on the individual behavior of those affected and never on a group characteristic.

A dismissal is not possible directly in the case of disruptors of approved events, as they are police-proof . According to the right of assembly, persons must first be excluded from the assembly ( Section 11 of the Assembly Act ) or the assembly must be dissolved ( Section 15 of the Assembly Act ).

Cf. Art. 2 GG (freedom of movement; freedom of the person; right to life), Art. 3 GG (equality before the law; equal rights for men and women; prohibition of discrimination) and Art. 19 GG (restriction of fundamental rights; guarantee of essential content and legal recourse ).

See also

Web links

Wiktionary: place reference  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Landtag printed paper 14/3165 ( Memento of December 29, 2009 in the Internet Archive ) (PDF; 359 kB)
  2. ^ VGH Baden-Württemberg, decision, Az. 1 S 1963/02.
  3. ↑ BVerfG NJW 2002, p. 2225.
  4. ↑ VGH Mannheim, NJW 2005, p. 88.
  5. ^ Bavarian police
  6. ↑ https://recht.nrw.de/lmi/owa/br_bes_text?anw_nr=2&gld_nr=2&ugl_nr=205&bes_id=5173&aufgehoben=N&menu=1#det285222
  7. ^ Police law in Saxony