Term and Definition: Direct Force
Direct force is a central term in police and regulatory law as well as in the law governing the execution of sentences in the Federal Republic of Germany. It denotes a form of sovereign coercion in which physical force is applied directly to persons, objects, or animals to enforce the will of the state. Within the graduated catalogue of enforcement measures, direct force represents the last resort (‘ultima ratio’) when other, milder coercive measures—particularly administrative coercion in the form of coersive fines or substitute performance—are not sufficient or not possible.
Legal Foundations
Police and Regulatory Law
The legal foundations for direct force are found in the police laws of the federal states (e.g., § 61 PolG NRW) and in federal law, particularly in the Federal Police Act (BPolG, §§ 49 et seq.) and the Act on the Application of Direct Force in the Exercise of Public Authority by Federal Administrative Authorities (UZwG).
Law on Execution of Sentences and Code of Criminal Procedure
In the execution of sentences and in the actions of the public prosecutor’s office and the police in criminal proceedings, supplementary provisions apply, e.g., §§ 70, 70a Prison Act (StVollzG) and § 81a Code of Criminal Procedure (StPO), which specifically regulate the use of direct force in these areas.
Forms of Direct Force
Direct force comprises various forms of action, always characterized by the use of physical force:
- Physical force: Direct impact on a person’s body through holding, dragging away, or other physical actions.
- Means of physical force: Use of restraints, irritants (e.g., pepper spray), batons, or service dogs.
- Use of weapons: The use of firearms or other weapons is a particularly intensive form of direct force and is subject to stricter requirements (§§ 61 et seq. PolG NRW, § 10 UZwG).
Requirements and Limits of Application
Principle of Proportionality
All measures of direct force are subject to the principle of proportionality. This means:
- Suitability: The measure must be suitable to achieve the intended purpose.
- Necessity: There must be no less severe but equally effective means available.
- Appropriateness: The measure must not result in a disadvantage that is disproportionate to the intended success.
Principle of Subsidiarity
Direct force may only be applied if other coercive means (e.g., coercive fines) cannot be taken or have failed (subsidiarity). Prior warning is generally required unless the purpose of the measure would thereby be endangered (§ 13 para. 2 UZwG).
Legality of the Basic Measure
The requirement for the use of direct force is the existence of a lawful basic order (e.g., a proper order or administrative act) which is to be enforced.
Duties of Protection and Consideration
When applying direct force, special consideration must be given to:
- The well-being and physical integrity of the person affected.
- The rights of third parties.
- Possible collateral damage to objects and animals.
Legal Consequences of Unlawful Direct Force
Unlawful direct force can have significant consequences:
- State Liability under § 839 BGB in conjunction with Art. 34 GG.
- Criminal Liability of the acting person, e.g., for bodily harm in office (§§ 223, 340 StGB).
- Exclusion of Evidence in criminal or administrative proceedings where procedural or fundamental rights have been violated.
Distinction from Other Forms of Coercion
Direct force is particularly distinct from:
- Coercive fine: A sum of money threatened or imposed to enforce an order.
- Substitute Performance: The authority arranges for the required action to be carried out at the expense of the obligated person.
Whereas these measures have an indirect effect, direct force aims at immediate physical enforcement without recourse to mediating steps.
Options for Legal Protection
Persons affected by the application of direct force may defend themselves with the following legal remedies:
- Objection and, if applicable, Action for Annulment (in the case of administrative acts as part of the basic order).
- Provisional Legal Protection (application for interim relief pursuant to § 80 para. 5 VwGO).
- Supervisory Complaint regarding police or administrative actions.
- Criminal Complaint in case of suspicion of unlawful use of force.
Direct Force and Fundamental Rights
The application of direct force regularly affects constitutionally protected rights, in particular:
- Physical integrity (Art. 2 para. 2 sentence 1 GG),
- Personal freedom (Art. 2 para. 2 sentence 2 GG, Art. 104 GG),
- The right to property (Art. 14 GG).
Therefore, the statutory basis is of particular significance. Full effect must be given to the reservation of law.
Practical Examples
Typical cases in which direct force is applied include:
- Eviction of dwellings following evacuation orders,
- Arrest and enforcement of identification procedures,
- Enforcement of exclusion orders or bans on presence,
- Deportation or compulsory escort of persons.
Literature and Further References
- Police laws of the German federal states
- UZwG – Act on Direct Force in the Exercise of Public Authority by Federal Administrative Authorities
- Federal Police Act (BPolG)
- Prison Act (StVollzG)
- Basic Law for the Federal Republic of Germany
Summary: Direct force is the last and most intensive means of state power to enforce sovereign orders. Its application is subject to strict legal constraints determined by proportionality, lawfulness, and special consideration for the fundamental rights of those affected. The legal provisions carefully distinguish between direct force and other enforcement means, and provide effective legal protection for the persons concerned.
Frequently Asked Questions
When may direct force be used in a legal context?
Under German law, direct force may only be used if it is expressly permitted by special legal provisions—particularly the police law of the states or federal law. In most cases, an administrative act, such as a police order, must first have been issued and not voluntarily complied with. Only when milder measures, such as simple requests, coercive fines or substitute performance, are unsuccessful or obviously futile (the so-called “principle of proportionality and subsidiarity”), may direct force be used. The measure must always be proportionate and the legal interest at stake must outweigh the potential harm caused by the use of force. Furthermore, the application of direct force is subject to strict documentation and oversight obligations.
Who is authorized by law to exercise direct force?
Only specially authorized public officials, usually police officers or other persons appointed for hazard prevention, are generally empowered to exercise direct force. The exact responsibility is determined by the respective police laws of the federal states or specific provisions at federal level, e.g. the Federal Police Act. Often, additional requirements such as official uniform or identification card are necessary. Private security services or civilians are generally not permitted to use direct force, except in special situations such as self-defense or defense of others under §§ 32, 34 StGB.
What types of direct force are provided for by law?
Direct force encompasses various types of enforcement measures. These essentially include physical force (e.g., holding or carrying away), the use of means of physical force (e.g., restraints, batons, pepper spray), as well as the use of weapons (e.g., firearms). The specific means permitted are determined by the applicable special law. The use of carried or technical aids usually requires additional authorization and a review of proportionality, particularly in dangerous interventions such as the use of firearms.
What legal limits exist in the application of direct force?
The application of direct force is strictly bound to the principle of proportionality. This means that the means used must be suitable, necessary, and appropriate. In addition, transparency obligations often apply, such as comprehensive documentation of the intervention and informing the person concerned of the reason and nature of the measure. The use of force is also subject to subsequent judicial review, particularly where fundamental rights such as physical integrity have been infringed. Breaches of statutory limits may give rise to liability claims or even criminal consequences for the acting official.
How is proportionality tested in the case of direct force?
The proportionality test for direct force takes place in several steps: First, the measure must be suitable to achieve the intended aim. Then, no less severe but equally effective means must be available to achieve the aim (necessity). Finally, within the scope of appropriateness, a balance must be struck between the public interest in the measure and the intensity of the interference with the legal interests of the person concerned. Particularly severe means—such as the use of firearms or significant physical force—are therefore only permitted in extreme exceptional cases.
What rights do persons affected have when direct force is used?
Persons affected by the use of direct force have various rights. As a rule, they are entitled at any time to know on what legal basis and for what reason force is being used against them. They also have the right to legally challenge the measure, for example through objection, complaint, or an action before the administrative courts. In cases of particularly serious measures, judicial interim relief (e.g., application under § 123 VwGO) may be considered. In cases of unjustified or disproportionate use of force, claims for compensation and damages against the state can also be asserted.
What special role do documentation and oversight obligations play in the use of direct force?
Documentation and oversight obligations are of central importance when direct force is used. Each intervention must be recorded in detail, particularly the time, persons involved, manner of the use of force, as well as the underlying circumstances and legal basis. This serves both subsequent judicial review and the protection of the person concerned and the officer involved. Faulty or incomplete documentation can lead to evidentiary problems and, in case of doubt, also disciplinary or criminal consequences for the acting officials.
