Term and Legal Situation: Auflauf
Definition of the term Auflauf
The term “Auflauf” is associated with different meanings in various areas of German law. In general, an Auflauf refers to the gathering of several people at a specific location, often characterized by a certain lack of clarity or dynamics. Legally, “Auflauf” is primarily used in connection with police and regulatory provisions, especially in assembly law, police statutes, as well as criminal and administrative offense law.
Distinction from other terms
Auflauf must be distinguished from the term assembly, as the latter is clearly defined by law in the German Constitution and the Assembly Act. In contrast, Auflauf usually describes a spontaneous, minimally organized gathering without prior intent or objective. This is crucial for determining which legal provisions apply.
Auflauf under Public Law
Auflauf under Police Law
Police law deals with Auflauf particularly in terms of hazard prevention and public safety. From a police law perspective, an Auflauf is regarded as a situation in which the presence of a large number of people can create or escalate a hazardous situation. In such cases, the police are authorized to take measures to address safety risks, such as those arising from panic, blocked escape routes, or escalating conflicts.
According to the police laws of the federal states, the police may issue dispersal orders, establish identities, clear or cordon off danger zones, or, if necessary, take individuals into custody to avert an imminent danger to public safety or order.
Legal Bases
- Police Acts (PolG) of the federal states – for example, Art. 11 BayPAG (Bavaria), § 13 PolG NRW (North Rhine-Westphalia)
- Road laws, insofar as the use of public traffic areas is concerned
Auflauf and Assembly Law
Assembly law generally protects the right to collective expression of opinion in the form of assemblies. While crowds forming as an Auflauf can occasionally qualify as an assembly within the meaning of Art. 8 GG, a mere Auflauf – for example, due to an accident, a celebrity sighting, or spontaneous events – lacks the shared purpose of forming and expressing an opinion. This is essential for legal treatment, as assemblies are afforded special protection and police powers here are subject to stricter requirements.
As soon as an Auflauf is characterized by collective decision-making and organization, there may be a transition into assembly law. In such cases, the legal stipulations of the Assembly Act must be observed, including registration requirements, bans, or conditions.
Criminal and Administrative Offense Context
Disturbance of Public Order by Auflauf
An Auflauf can, under certain circumstances, fulfill elements of criminal offenses or administrative offenses. In particular, in the case of so-called “rubbernecking” (§ 323c StGB – failure to render assistance, and possibly § 118 OWiG – nuisance to the public), the gathering of onlookers at accident sites can be of criminal or administrative significance.
Typical Cases
- Obstruction of emergency personnel: The formation of an Auflauf at an accident site, thereby obstructing emergency and rescue forces, can constitute offenses such as obstruction of persons rendering aid or failure to render assistance.
- Disruption of Traffic: An Auflauf on traffic areas can disrupt the orderly flow of traffic and constitute administrative offenses under the Road Traffic Act (§ 49 StVO).
Other legal consequences and measures
In the case of large crowds, the police may implement dispersal or evacuation measures. Additionally, identity checks or bans on entering may be imposed on participants of an Auflauf. Regulatory authorities are also empowered to impose fines on individuals who do not comply with police instructions.
Significance in Liability Law
Damage caused during an Auflauf
If property or personal injury occurs in connection with an Auflauf, the question arises regarding civil liability for conduct within the crowd. A typical scenario is so-called “mass damage,” where assigning responsibility to individual participants is difficult. In individual cases, liability may arise under § 823 BGB (obligation to pay damages) if an active misconduct, such as pushing or shoving, causally leads to the damage. Furthermore, an organizer who negligently or intentionally triggers an Auflauf may be liable for any resulting damages.
Legal Assessment of Specific Auflauf Situations
Public Aufläufe in the context of events
Large events regularly lead to large crowds (Aufläufe) of people. Organizers must ensure, through safety concepts and hazard prevention, that such gatherings do not pose any risks. The relevant provisions can be found in event law, building law (Regulation on places of assembly), and security law.
Spontaneous Aufläufe and their regulation
Spontaneously arising Aufläufe, such as at accidents or unexpected incidents, are primarily managed according to the principles of hazard prevention. In these cases, authorities are authorized to take immediate measures to protect the general public.
Summary and Conclusion
The term “Auflauf” occupies an independent role in German law by capturing situations in which a crowd of people creates potential or actual dangers to public safety and order. The legal evaluation is largely dependent on the particular circumstances and the specific area of law involved. While assembly law sets strict requirements for police intervention, hazard prevention law allows for a quick and flexible response to avoid damage and ensure public order. Additionally, depending on the situation, participants in an Auflauf may face criminal or administrative penalties.
The interplay of various regulations ensures that, on the one hand, the right to assemble is preserved, while on the other hand, public safety and the protection of highly sensitive legal interests are not jeopardized.
Related Topics
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Frequently Asked Questions
What legal requirements must be met for a situation to be considered an Auflauf?
In the legal context – especially in German administrative offense and criminal law – an Auflauf is considered to exist when a large crowd gathers at a particular location, and such a crowd is not merely there by chance. Typically, the gathering occurs spontaneously, often triggered by an extraordinary event or general unrest. It is essential that the assembled crowd can pose or concretely threaten public safety or order. The exact number of people required to constitute an Auflauf depends on the individual case; legal literature often cites a lower limit of ten to fifteen people but consistently emphasizes the significance of the disturbance caused by the gathering. A key criterion is the presence of a certain momentum within the group, meaning that the crowd, through mutual influence, tends towards uniform or at least coordinated behavior, which is more difficult for authorities to manage than a simple collection of individuals.
What criminal or regulatory consequences can arise in connection with an Auflauf?
An Auflauf may generally result in both regulatory measures and criminal consequences. If an Auflauf leads to violations of the Assembly Act, such as in the case of unregistered or prohibited assemblies (keywords: “spontaneous assembly” vs. “unlawful assembly”), those responsible and participants in particular may face fines or even imprisonment. In addition, there is a risk that individuals from the crowd may commit offenses such as breach of the peace (§ 125 StGB), resistance to law enforcement officers (§ 113 StGB), or property damage (§ 303 StGB). Police hazard prevention law is also relevant: the police are authorized to issue dispersal orders, establish identities, and, if necessary, dissolve the Auflauf by force. Administrative offenses may also occur, for example, if conditions for protecting public order or police instructions are violated.
How does an Auflauf differ from a legally permitted assembly?
Legally, an Auflauf is fundamentally different from a legally regulated assembly under assembly law. While an assembly is a planned and generally registered gathering of several people for a common purpose of expressing opinions and is constitutionally protected (Art. 8 GG), an Auflauf is typically unplanned, spontaneous, and may develop a life of its own due to its dynamics. The protection of assembly law may apply to an Auflauf if the crowd pursues a purpose protected by freedom of expression. However, when the crowd poses a concrete danger to public safety or legal violations are anticipated, police intervention powers take precedence. An Auflauf immediately loses its assembly character if, for example, it develops into a breach of the peace or other crimes are committed from within the group.
To what extent is an individual liable for actions within an Auflauf?
Individual liability for actions within an Auflauf is governed by general principles of criminal and civil law. In principle, each person is only liable for their own intentional or negligent unlawful acts. Collective liability is excluded under German law. However, a certain degree of joint responsibility may arise if, for example, individuals support, instigate, or act collaboratively in committing crimes (§ 25, § 26, § 27 StGB). Liability becomes particularly relevant in cases of breach of the peace (§ 125 StGB): here, it is sufficient that the individual participates in the unrest – personal violent behavior is not necessarily required. Civil liability may also arise if an individual, through their actions, harms third parties or their property.
What measures are authorities permitted to use to disperse an Auflauf?
In the case of an Auflauf, authorities – typically the police – have a graduated set of measures at their disposal according to the police laws of the federal states and the Assembly Act. The most moderate actions include dispersal orders, speaking to the crowd, and requests to leave the location. If there is no compliance, further steps such as identity checks, dispersal orders, temporary arrests, and, in cases of imminent danger to public safety, even direct force (such as removing individuals or targeted use of pepper spray and water cannons) may be ordered. The proportionality principle must always be observed; this means that less severe measures are to be used first and that police force is only a measure of last resort. In addition, such measures are legally contestable: anyone who believes they have been wrongfully affected can subsequently seek legal remedies against them.
What legal considerations apply when minors are present in an Auflauf?
If minors are present within an Auflauf, special procedural protections apply to police and law enforcement measures, such as those found in the Youth Courts Act (JGG). Minors can generally be held criminally responsible for their own crimes, though educational considerations are paramount in juvenile criminal law. Police actions must take into account the age, developmental stage, and particular need for protection of minors; for example, taking a minor into custody is only permissible as a last resort, and parents or legal guardians must be informed immediately. Administrative offenses involving minors are typically addressed primarily through their legal guardians. The participation of minors in criminal acts within an Auflauf can affect the legal assessment of the offense and the penalty imposed.
Is there any special legal responsibility for organizers or initiators of an Auflauf?
If an Auflauf can be attributed to the deliberate actions of an organizer, leader, or initiator, these individuals may face heightened legal duties and responsibilities. In the case of a planned or orchestrated gathering by leaders, it may be classified as the organizer of an (unlawful) assembly, with the corresponding legal consequences. Those who organize or call for such gatherings may be liable for violations of the Assembly Act, especially if no registration was made or conditions were disregarded. Additionally, liability for instigating or aiding and abetting crimes may arise if their actions foster or facilitate riots, breaches of the peace, or other legal violations. Organizers are also required to ensure order beforehand and may be held civilly liable for damages if they neglect their traffic safety obligations.
